United States District Court, W.D. New York
July 26, 2004.
DAVID M. SKINNER and JENNIFER L. SKINNER, Plaintiffs,
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.
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
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
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.
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 York State law, dogs are
personal property. See, e.g., N.Y. AGRIC. & MKTS. LAW § 109
The seizure of Dexter was not unreasonable and does not raise a
constitutional violation under the Fourth or Fourteenth
Amendments. Breese was acting pursuant to § 118 of New York State's Agriculture and Markets Law when she seized the dog
(Docket #22, ¶ 21). New York State law allows a dog control
officer or police officer to seize any dog because, among other
reasons, it is not licensed, it poses an immediate threat to
public safety, or it is "in violation of any local law or
ordinance relating to the control of dogs. N.Y. AGRIC. & MKTS.
LAW § 118 (Consol. 2004). In addition, New York Public Health Law
§ 2140(7) references a ten-day confinement and observation period
for all dogs that have potentially exposed a person to rabies
because the animal is not actively immunized against rabies at
the time of the bite. Moreover, it is a violation of the "Dog
Control Local Law of the Town of Wayland" for a dog to be at
large, chase, or harass any person "in such a manner as
reasonably to cause intimidation or to put such person in
reasonable apprehension of bodily harm or injury." §§ 5(a), (d),
Wayland Local Law No. 1, 1980. Dog control or police officers are
directed to seize any dogs in violation of Wayland Local Law.
Id. at § 7(a).
Breese and Chapman's actions were reasonable and consistent
with state and local law. Dexter was not licensed, had not
received a rabies vaccination, and was suspected of being at
large and biting a child. The undisputed fact that Dexter was not
licensed gave Breese justification alone for seizing him from the
Skinner residence. N.Y. AGRIC. & MKTS. LAW § 118(1)(b) (Consol.
2004). Under Wayland local law and New York State law, the other
allegations against Dexter also serve as justification for a
reasonable seizure. Breese and Chapman acted reasonably to ensure
public safety, and public safety is the stated purpose for both
Wayland and New York State dog control laws. N.Y. AGRIC. & MKTS.
LAW § 106 (Consol. 2004); § 1 Wayland Local Law No. 1, 1980. Once
seized, Dexter was impounded and treated in a manner consistent with § 7 Wayland Local Law No. 1, 1980 and § 118 of
the New York State Agriculture and Markets Law.*fn2
Even if Dexter was seized unreasonably, this deprivation of
property is not unconstitutional. A seizure that is suspect under
the Fourth Amendment occurs when there is "some meaningful
interference with an individual's possessory interests in that
property." United States v. Jacobsen, 466 U.S. 109, 113 (1984).
The temporary taking of Dexter by a duly authorized official,
where the owner knew who was seizing the dog, where the dog was
to be confined, and when the seizure was temporary does not
constitute an unlawful seizure and does not raise a
constitutional violation. See Kostiuk v. Town of Riverhead,
570 F. Supp. 603, 609 (1983). The Skinners knew why Dexter was being
taken, who was taking him, and were advised that he would be
retained only for ten days for observation. (Docket #22).
Therefore, under these circumstances, there was no "meaningful
interference" with a property interest that deserves
constitutional protection. CONCLUSION
Every dog has its day, but this is not Dexter's. Dexter's
seizure and ten-day impoundment is not a violation of § 1983.
Defendants' motion for summary judgment (Docket # 6) is granted,
and the complaint is dismissed.
IT IS SO ORDERED.