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September 6, 1983;


The opinion of the court was delivered by: ALTIMARI



 The dog has seldom been successful in pulling man up to its level of sagacity, but man has frequently dragged the dog down to his.

 James Thurber


 This is an action brought under 42 U.S.C. § 1983, alleging a violation of plaintiff's constitutional rights, as a result of the overnight impoundment of her six year old Samoyed dog, named "Tarasbulba." This statute had a noble birth, as § 1 of the 1871 Civil Rights Act, 17 Stat. 13 (1871). Enacted by the Forty-Second Congress to combat the growing terrorism of the Ku Klux Klan, see, Monroe v. Pape, 365 U.S. 167, 171-87, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), the current version of the statutes has in recent years been utilized by plaintiffs with a wide assortment of grievances against state actors, some significant and some less so. This case presents an extreme example of the sort of corruption to which the statute is now subject. This Court believes, as do others, that the time has come to put a halt to these trivial actions, which mock the purpose for which this critical piece of legislation was intended. In the words of Judge Rubin, writing for the Fifth Circuit in Raymon v. Alvord Independent School District, 639 F.2d 257, 258 (5th Cir. 1981):

 Federal courts are proper forums for the resolution of serious and substantial federal claims. They are frequently the last, and sometimes the only, resort for those who are opposed by the denial of the rights given them by the Constitution and laws of the United States.Fulfilling this mission and the other jurisdiction conferred by acts of Congress has imposed on the federal courts a work load that taxes their capacity. Each litigant who improperly seeks federal judicial relief for a petty claim forces other litigants with more serious claims to await a day in court. When litigants improperly invoke the aid of a federal court to redress what is patently a trifling claim, the district court should not attempt to ascertain who was right or who was wrong in provoking the quarrel but should dispatch the matter quickly.

 * * *

 It all started quietly enough, in the Long Island Town of Riverhead, New York. Early in the morning of April 16, 1981, plaintiff and her two children the their dog, Tarasbulba, outside their home, unchained and without a collar, and departed for New York City to watch, perhaps symbolically, the circus. Upon their return, they learned that Tarsabulba had been picked up by Town Dogcatcher John Sabotka during their absence. Since the dog pound had already closed when they returned home, Tarasbulba, not for the first time, spent the night there before being picked up by plaintiff the following morning.

 The seizure of Tarasbulba sparked this hotly litigated action, wherein plaintiff has sued both Sabotka and the Town of Riverhead for an unconstitutional deprivation of property, namely her dog. After defendants' motion to dismiss under Fed.R.Civ.P. 12(b)(6) was denied by another judge, all parties made summary judgment motions, and then continued to "supplement" them on a regular basis.Regrettably, none of the submissions included a case on "all fours" with this one.

 Finally, the Court informed the parties by conference call that it would decide the motions on the basis of the record as it existed on July 8, 1983, inviting them to make any desired last-minute submissions. For the reasons given below, the Court now denies the plaintiff's motion and grants the motion of each defendant.


 There are questions of fact that the assorted motion papers do not resolve, such as whether Tarsabulba was or was not on the Kostiuk property all morning before he was seized. Neither that question, however, nor any other question still unresolved, is a fact that is material to this determination.Fed. R. Civ. P. 56(c).

 At the time of the incident in question, plaintiff, Emilia Kostiuk, had lived at the same address in the Town of Riverhead for approximately two years. Deposition of Emilia Kostiuk dated February 16, 1982 (hereinafter "Kostiuk dep."), at 4. Although the residence was occupied only by plaintiff and her two children, and of course, Tarasbulba, it was owned by plaintiff's parents. Id. at 4-6, 18. Until shortly before this incident, plaintiff made no attempt to obtain a Riverhead dog license. Id. at 53-54. Indeed, what prompted plaintiff to finally apply for a Riverhead license was dogcatcher Sabotka's seizure of the dog a week or so earlier, when Tarasbulba was again outside, without restraints, or tags, or even a collar. Id. at 48-54, 65-66; deposition of John Sabotka dated August 18, 1982 (hereinafter "Sabotka dep."), at 23-24. Plaintiff brought no claim against either defendant in this case as a result of that seizure.

 On that previous occasion, the dog spent the night at the pound, and was picked up the next morning by one of plaintiff's neighbors. Kostiuk dep. at 54-56.As a condition for the dog's release, the neighbor paid a redemption fee and filled out an application for a license on plaintiff's behalf. Id. at 65-66, 117. Through no fault of Sabotka's, when plaintiff did receive a Riverhead license, no dog tags were included, and the license itself was under plaintiff's previous, married name, "Emilia Correa." Id. at 120; Sabotka dept. at 24; "[Plaintiff's] Reply to Sabotka's Opposition and Motions to Dismiss and Summary Judgment," filed June 6, 1983, at 7, and plaintiff's proposed pretrial order exhibits 9, 15 and 16 (annexed), and deposition of Irene Pendzick, Riverhead Town Clerk (annexed).

 As a result, Tarasbulba was still wearing no tag whatsoever, and not even a collar, when Sabotka picked him up again on April 16, 1981.Kostiuk dep. at 19, 23; Sabotka dep. at 21-22. While Sabotka concedes that Tarasbulba was actually seized on what he now knows to be the Kostiuk property, he claims the dog had been roaming off the property prior to that time. Sabotka dep. at 28-37. Plaintiff, on the other hand, claims that while her dog "walks around," Kostiuk dep. at 52, he never leaves the property and did not do so on this occasion. Id. at 24-25. As indicated earlier, this particular difference of opinion does not affect the outcome of the issue at hand.

 Upon returning home from the circus, plaintiff learned her dog was again at the pound. She confirmed this for herself by driving to the pound, which was locked, and observing the dog. Id. at 29. She returned the next morning and retrieved her dog, after paying a five dollar fee. The dog was allegedly dirty and frightened, but did not otherwise appear to have suffered any harm. Id. at 32-33. Subsequently, however, plaintiff felt the dog wasn't "eating right," an observation she made after the previous impoundment, as well. Id. at 36, 62, 68. She took the dog to a veterinarian, but he did not prescribe any special diet.Id. at 36. Plaintiff, however, fashioned her own remedy, and switched Tarasbulba from meals like pork chops and potatoes to a diet consisting of more fish. Id. at 36-38. However, a true "meat and potatotes" dog, Tarasbulba resumed his former diet within a few months and showed no lasting effects from his confrontation with Sabotka, except for becoming "emotional" in the presence of someone in uniform. Id. at 39-41.

 Plaintiff, however, continued to make no bones about her unhappiness, and her voice carried to kitchens and kennels across the land. See, e.g., Kostiuk dep. at 115; Animal Rights Law Reporter (October 1982) (published by Society for Animal Rights, Inc., Clarks Summit, Pa.), at 5-6. *fn1" Plaintiff took her complaints to the police, the town council, the American Society for the Prevention of Cruelty to Animals (ASPCA), and the American Civil Liberties Union (ACLU), among others. Indeed, a few days after the incident, her protestations resulted in a meeting of the Riverhead Town Board. Kostiuk dep. at 74; transcript annexed to Plaintiff's Motion for Summary Judgment and Town of Riverhead's letter dated July 6, 1983. Shortly thereafter, the five dollar fee paid by plaintiff to redeem her dog from the pound was returned to her. Affidavit of Emilia Kostiuk dated May 4, 1983, Exhibit 1 to Plaintiff's Summary Judgment Motion.

 Plaintiff, however, was still not mollified. By Notice of Claim, received July 1, 1981, by the Riverhead Town Clerk, plaintiff claimed damages arising out of the overnight impoundment of Tarasbulba on August 16, 1981. Pursuant to N.Y. Gen. Mun. Law § 50-h (McKinney 1977), a hearing on the claim, at which plaintiff testified, was held on October 20, 1981. One month later, she filed the instant action, pursuant to 42 U.S.C.§ 1983 and attaching pendent state claims, against both Sabotka and the Town of Riverhead. Plaintiff seeks $900,000 in punitive damages and $100,000 ...

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