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Jody Fabrikant v. Christine French

August 16, 2012


The opinion of the court was delivered by: Gerard E. Lynch, Circuit Judge:


Fabrikant v. French

(Argued: May 16, 2012)

Before: NEWMAN, STRAUB, and LYNCH, Circuit Judges.

Appeal from a grant of summary judgment for defendants on plaintiff-appellant Jody Fabrikant's federal constitutional claims, which arose from a search of her property, her arrest on animal abuse charges, and the seizure, spaying and neutering, and fostering of her dogs during the pendency of state criminal proceedings. We conclude that (1) defendants acted under color of state law when they sterilized Fabrikant's dogs and fostered them out to temporary homes following the animals' seizure; (2) defendants are nevertheless entitled to qualified immunity on Fabrikant's due process claims, as their actions did not violate any "clearly established" constitutional or statutory right; and (3) defendants involved in the search and arrest are entitled to summary judgment on Fabrikant's malicious prosecution, unreasonable search and seizure, and First Amendment retaliation claims because their actions were supported by probable cause. We therefore affirm the district court's judgment.


Plaintiff-appellant Jody Fabrikant appeals from a decision of the United States District Court for the Northern District of New York (David N. Hurd, Judge) granting summary judgment for defendants and dismissing her federal constitutional and pendent state-law claims. Because we conclude that defendants are entitled to judgment as a matter of law on all the claims that Fabrikant presses on appeal, we affirm the grant of summary judgment, although our reasons differ in several respects from those articulated by the district court.


I. The SPCA Investigation and State Criminal Proceedings

The material facts of this case are not in dispute.*fn1

Jody Fabrikant is a pet owner in upstate New York. Beginning in the early 1990s, she started taking in dogs to save them from euthanasia, medical ailments, or abandonment. In 2001, she moved to a rental property in Ulster County, New York, that provided more space for her four dogs. She soon adopted a fifth dog.

On the property was a barn that the landlord rented to a woman named Camille Fraracci, who used it to hold various animals, including an ox, a cow, calf, and sheep, as well as approximately thirty dogs "running around loose." In the spring of 2001, defendant-appellee John Spinato, an investigator for defendant-appellee the Ulster County Society for the Prevention of Cruelty to Animals ("SPCA"), made several visits to the property and asked Fabrikant for her help in an ongoing investigation of Fraracci, and to gain entrance into the barn to inspect Fraracci's animals. At the time, Spinato observed that Fabrikant's pets were in "decent condition."

One of Fraracci's dogs impregnated one of Fabrikant's dogs, which gave birth to a litter of nine puppies in the summer of 2001. Fabrikant made some efforts to find adoptive homes for the puppies, by placing advertisements in newspapers and on bulletin boards and by making calls to rescue agencies, including the SPCA. None of her attempts to find adoptive homes for the puppies succeeded.

Fraracci eventually learned of the SPCA's ongoing investigation into her treatment of her animals. According to Fabrikant, Fraracci threatened to harm her and her pets if Fabrikant continued to assist the SPCA. Out of fear of Fraracci, and because of "the way Mr. Spinato carried out his investigation," Fabrikant told Spinato that she would not participate further as a witness in the SPCA's investigation of Fraracci. Spinato became "pissed off," "sarcastic," and "rude." The SPCA eventually dropped its investigation of Fraracci.

In January 2002, Fabrikant and her pets moved to a new rental property away from Fraracci. The house and land provided more space for Fabrikant's dogs. Fabrikant continued to seek adoptive homes for the nine puppies. She also placed an advertisement seeking a dog walker to help her walk the dogs. A young woman named Allison Klock responded to the ad, visited Fabrikant's house, and took one of the dogs for a walk. When Klock visited the house, she observed that the puppies' snouts were taped shut, and she began to cry when she saw the dogs' living conditions. Klock told her mother that the dogs were being neglected. Her mother, in turn, called the New York State Police and the SPCA to report that the dogs were being abused.*fn2

By this point, Fabrikant was living with fifteen dogs and a cat. She became overwhelmed trying to care for the animals, staying up "around the clock" to look after them and getting only "one or two hours of sleep a night." She kept the nine puppies on an enclosed porch attached to the house. Because it was winter, she hired a man to help her insulate the porch using "cardboard, wood, plastic and newspaper." Those materials covered the porch's windows. Fabrikant heated the porch with three or four portable space heaters. In an effort to keep the puppies from barking, Fabrikant admits that she occasionally wrapped masking tape around their snouts - the same tape used to "insulate" the porch. The dogs defecated on newspapers inside the house; Fabrikant kept garbage bags filled with the dogs' feces on the enclosed porch. Fabrikant continued to place ads and post flyers in search of adoptive homes for the puppies. Several interested persons responded and offered to adopt the dogs, but Fabrikant ultimately refused each offer, or imposed deal-breaking conditions on the adoptions - for example, requiring that before prospective adopters could take the dogs, they sign a "contract" providing, inter alia, that Fabrikant would have "full visitation rights" to come onto the adopters' property to visit the dogs whenever she wanted.

Several of the prospective adopters who visited Fabrikant's house alerted the SPCA about the conditions they observed there. Investigators visited Fabrikant's property three times in February 2002 to check on the animals. None of those visits resulted in any charges against Fabrikant. First, a New York State Trooper visited the house to investigate the complaint filed by the mother of Klock, the prospective dog walker. Fabrikant allowed the trooper into the house. The trooper found no "indication of violation of [New York] Agriculture & Markets Law," and later told the SPCA that the animals "appeared in excellent condition."

Second, Spinato, the SPCA investigator, made an unannounced visit to the house. Fabrikant allowed him in and permitted him to examine the animals. Although Spinato and Fabrikant discussed the dogs' overcrowding and Fabrikant's use of twine as collars for the animals, Spinato concluded "that a violation of the Agriculture and Markets Law sufficient enough so as to seize Ms. Fabrikant's fifteen animals was not established at that time." Third, another SPCA investigator, defendant-appellee Walter Sasse, visited

Fabrikant's house. Apart from overcrowding, Sasse found "no other real problems present."

Eventually, however, after Spinato and Sasse received additional reports from visitors to Fabrikant's property, Sasse prepared a search warrant application for the house, based on witness statements from Klock and defendants-appellees Christina Khuly, Diane Stark, and David Stark, each of whom had visited Fabrikant's house and observed the conditions of the dogs. In their statements, those witnesses described the scene inside the house and on the enclosed porch. One witness, Diane Stark, described "garbage everywhere and newspapers covering nearly every part of the floor"; puppies being kept six to a pen and three to a cage; at least twenty-five "[H]efty bags filled with dog feces"; dogs with "ropes/twine around their necks"; two dogs with mange, one described as "sickly"; a dog "chewing at an infection on its front foot"; conditions inside the house that "were the worst I have ever seen in my life - filth and a definite fire hazard"; and "no drinking water for the animals." In addition, according to this witness, Fabrikant complained that "she was 'dreadfully overwhelmed' and not able to properly care for the dogs," and Fabrikant refused to take one sick dog to the veterinarian even though Fabrikant told her the dog's infected foot was "starting to smell." Other witness statements described a similar scene. Klock reported seeing a two- by-two-foot cage with "four puppies in it"; a dog that "wouldn't stand up" but "only crawled across the floor"; another dog that "had its mouth taped shut until I started crying so [Fabrikant] took it off"; and a dog with "twine on the neck . . . choking the dog" - a practice Fabrikant attempted to justify by explaining that she "can't afford collars."

Another witness, Khuly, described the enclosed porch attached to Fabrikant's house, where Fabrikant kept nine dogs, as having "an overwhelming smell of feces and urine." Puppies were "crammed into two crates - three dogs to a crate." The dogs had no leashes or collars. One dog, which this witness tried to take for a walk, "stood with its head down and his legs askance not knowing what to do," behavior the witness understood to indicate that the dog "had not only been hit many times but was also not often outside of his crate." Another dog "was so afraid [that] he bit" the hand of the witness's husband. Dogs had twine tied around their necks. Garbage bags filled with feces were "stock piled in a corner," and there was a "mound" of dog food in the kitchen. Five dogs had "tape around their snouts," which, according to the witness, Fabrikant attempted to explain by saying that one dog's barking "left her no other option than to shut him up with tape." One dog's fur was falling out. Fabrikant cried, screamed, and complained that "she needed help and couldn't take this anymore." After cutting tape off a dog's snout, Fabrikant retaped it "really tight," "much tighter than when" the witness "first came over that day." Fabrikant also reportedly told the witness that one of the dogs had come to her in a dream and "had asked [Fabrikant] to let them go." According to this witness, Fabrikant said that in the dream the dog asked her, "'[D]o I have to kill you?'" Witness David Stark described seeing "food (human food) all over the kitchen. Newspapers with urine and feces all over the floor. The smell was overwhelming." The enclosed porch "had boxes and newspapers taped up and down the walls." The witness observed six puppies in one pen, three in one crate, feces and urine in both containers, "30-40 plastic bags filled with dirty paper and feces," and "3 electric heaters that were on" and sitting atop soiled newspaper. Fabrikant, according to this witness, complained that "she couldn't take it anymore," and that "the dogs were too much for her to handle." Fabrikant later called this witness to complain that one of her dogs "had a very bad infection that now smelled"; she asked this witness if he "had a muzzle or any tranquilizers." She refused to take the sick dog to a veterinarian. Fabrikant also told this witness that "one of her dogs had worms," but said that "she wanted to find a homeopathic remedy to treat it" rather than go to a veterinarian. Fabrikant, according to this witness, "never has treated the worms."

A state-court judge approved the search warrant application, which gave the SPCA authority to search for and seize Fabrikant's nine puppies, along with the adult Rottweiler and Chow, "and any other evidence of animal cruelty." With the warrant in hand, SPCA peace officers, accompanied by sheriff's officers, visited Fabrikant's property, where they found one of her dogs tied up outside, in the cold, with no food or shelter, and missing some of its fur. The officers knocked on Fabrikant's door, but she did not answer, so they climbed a ladder and entered the house through a back door on an upper floor. The officers handcuffed her, led her outside, and placed her in the back of a patrol car. According to the officers, she attempted to kick out the car's window. The dogs' conditions generally matched the descriptions provided by witnesses. A veterinarian on site examined the dogs and found that one had a seriously infected wound on its face; another had various skin problems, including dermatitis and folliculitis, as well as flea infestation; and a third dog had a severe ear infection, ear and periodontal diseases, and flea infestation.*fn3 In addition, the cat was found to have an ear infection and a distended stomach.*fn4 According to the officers conducting the search, the house stank of feces and urine, and bags of feces were piled around the enclosed porch, where nine dogs were kept in cages and crates. The officers found two dogs locked in a bathroom where the floor was covered with feces and trash. They also found a cat inside a closet of that bathroom.*fn5 The officers conducting the search took photographs and made a video of the inside of the house that confirm most of the above-described conditions.*fn6

All but two of the dogs were taken away from the house and delivered to the SPCA, where they were fed, cleaned, and treated for various ailments. Meanwhile, Fabrikant was arrested, brought to the sheriff's station in Accord, New York, for processing, and then arraigned before a local court on five counts of criminal animal cruelty, pursuant to New York Agriculture and Markets Law § 353 (criminalizing various forms of animal cruelty and neglect). Four counts alleged that Fabrikant failed to provide veterinary care for three of her adult dogs and her cat. One count alleged that she deprived the nine puppies of water and injured them by taping their snouts. The court released Fabrikant on her own recognizance. The district attorney eventually determined that there was probable cause to prosecute her for animal cruelty. Fabrikant moved to dismiss all charges for lack of probable cause, and made a series of other motions. The court denied all of her motions, and Fabrikant proceeded to trial.

While Fabrikant's criminal proceedings were ongoing, the SPCA, at the direction of the organization's director, defendant-appellee Christine French, spayed or neutered each of the seized dogs. The SPCA then sent the dogs to live in foster homes pending conclusion of the criminal case.

Prior to trial, apparently because of a drafting error in the accusatory instrument, the prosecutor orally moved "in the interest of justice" to dismiss one of the charges against Fabrikant, regarding her treatment of her Rottweiler. The judge granted the motion, over Fabrikant's objection. The trial commenced on the remaining four animal cruelty charges, but ended in a mistrial after Fabrikant's attorney made several prejudicial remarks during his opening statement. At her second trial, a jury acquitted Fabrikant of all remaining charges. It appears that Fabrikant never asked that her seized dogs be returned after the trial.

II. The Instant Federal Suit

After her acquittal on the state criminal charges, Fabrikant, proceeding pro se, and her co-plaintiff, an attorney,*fn7 filed a federal civil rights suit pursuant to 42 U.S.C. § 1983 against various persons involved in her state criminal case, including the SPCA, several of its employees, veterinarians and veterinary technicians, and some of the prospective adopters who originally alerted the SPCA about the dogs' conditions. In the complaint, Fabrikant sought hundreds of millions of dollars in compensatory and punitive damages. The complaint included federal claims for malicious prosecution and for violations of her rights to due process, the presumption of innocence, counsel, and freedom from unreasonable searches and seizures. In addition, the complaint included several pendent state-law claims. On appeal, Fabrikant has abandoned her state-law claims.*fn8

Defendants moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court granted the motion, concluding that Fabrikant had failed to plead sufficient facts to establish that any of the defendants were state actors, a requirement for a ยง 1983 action, and that, even assuming arguendo that the SPCA investigators were state actors, they would be entitled to qualified immunity because their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person ...

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