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SKINNER v. CHAPMAN

July 26, 2004.

DAVID M. SKINNER and JENNIFER L. SKINNER, Plaintiffs,
v.
MARC CHAPMAN, DEBRA BREESE, Defendants.



The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District

DECISION AND ORDER

This is a pro se civil rights action, pursuant to 42 U.S.C. § 1983 against a police officer and a dog-control officer for the temporary taking of plaintiffs' Labrador Retriever, Dexter. For ages, man's "best friend" was considered to be his dog. Plaintiffs obviously had strong feelings for Dexter. Nevertheless, his brief removal from the family, under the circumstances presented, is not actionable under § 1983. Defendants' motion for summary judgment is granted and the complaint is dismissed.

Plaintiffs, David M. Skinner and Jennifer L. Skinner (hereinafter "plaintiffs"), originally filed this complaint against several defendants. Pursuant to the provisions of 28 U.S.C. § 1915(e), the Court (Skretny, J) dismissed all the claims on initial review, except those against the two remaining defendants, Marc Chapman ("Chapman"), a Sergeant with the Wayland, New York Police Department, and Debra Breese ("Breese"), a dog-control officer for the town. The Court converted Chapman's motion to dismiss to a motion for summary judgment and so advised the parties by order entered April 29, 2004 (Docket #17). Defendant Breese joined the summary judgment motion (Docket #21), and the parties submitted additional affidavits in support of their respective positions.

  FACTS

  Although there are some disputes as to particulars, the essential facts are largely uncontested. On September 13, 2002, Breese was contacted by a resident, Victoria Wagner, who complained that her ten-year-old son had been bitten by a dog (later identified as Dexter) owned by plaintiffs. The biting allegedly occurred near the rear of Wagner's property which abuts plaintiffs' property.

  Breese went to the Skinner residence and spoke either with plaintiffs or their children about the incident.*fn1 At this initial inquiry, Breese determined that Dexter was a young dog, seven to nine months old, who had not yet been vaccinated for rabies. The dog also was not licensed. According to Breese, the dog should have been vaccinated when it was three months old.

  According to Breese, the Skinners were advised then that the dog should have been vaccinated, and that they needed to confine Dexter for ten days and make sure that there was no unusual behavior, consistent with a rabies infection. Breese also indicated that she warned that Dexter should not be at large again. The following day, Breese received another complaint from the Wagners that Dexter was on the loose again. Breese responded to the Skinner residence at about 9:15 p.m. and told the Skinners that she had received a complaint that the dog had been loose, and, because of the circumstances, she needed to take the dog and quarantine it for ten days to make sure that it did not have rabies. Breese asserts that she informed the Skinners that she had the authority to impound the dog because it was not licensed or vaccinated and because it had bitten a child. According to Breese, the Skinners were combative and used profanity in response.

  When the plaintiffs continued their refusal to turn over the dog, Breese left the premises but advised plaintiffs that because of their failure to cooperate, she would call the police to assist her in removing the dog. A short time later, Breese, together with Officer Chapman of the Wayland Police Department, responded to the Skinner residence. The Skinners again refused to cooperate because neither Chapman nor Breese had a warrant to the seize the dog. Officer Chapman advised the Skinners that they could be cited for obstructing governmental administration for their failure to cooperate. When Mr. Skinner again refused access to the dog, both Chapman and Breese left the residence to obtain a sworn statement from the complainant, Victoria Wagner.

  Later that same evening, Chapman and Breese returned to the Skinner residence and in an attempt to mollify the situation, they advised Mr. Skinner that they would waive any appearance tickets or impoundment fees if Skinner cooperated. Eventually, Mr. Skinner cooperated and put the dog in Breese's van, although he continued to use invective when addressing Breese.

  Dexter was held at the kennel for eleven days until September 25, 2002, when he was released to plaintiffs after he had received a rabies vaccination and was licensed. Although Dexter was returned, plaintiffs were both charged with obstructing governmental administration, and both pleaded guilty to the charge in Wayland Village Court.

  DISCUSSION

  This case concerns the temporary taking of a dog without a warrant. Plaintiffs argue that they were injured by being deprived of due process when their dog was allegedly seized without warrant or cause.

  Assuming the truth of everything the plaintiffs allege, the temporary taking of Dexter does not rise to the level of a constitutional deprivation of property. To prevail in a § 1983 action, two elements must be met: (1) defendants' conduct must be committed by a person acting under color of state law; and (2) this conduct must deprive a person of "rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535 (1981). Here, plaintiffs' claims fail on the second element.

  The plaintiffs assert a § 1983 claim based on the Fourth Amendment, which ensures the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." United States v. Place, 462 U.S. 696, 700 (1983). "Effects" are defined to include personal property under Fourth Amendment analysis. See Id. at 705. I will assume, without deciding that, under New ...


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