Case Information
*1 10-3288-cv Fabrikant v. French
UNITED STATES COURT OF APPEALS F OR THE S ECOND C IRCUIT
August Term, 2011
(Argued: May 16, 2012 Decided: August 16, 2012)
Docket No. 10-3288-cv
J ODY F ABRIKANT ,
Plaintiff-Appellant , R USSELL A. S CHINDLER ,
Plaintiff , — v. —
C HRISTINE F RENCH , W ILLIAM D E R IDDER , H ECTOR L. M EJIAS , J R ., J OHN S PINATO , C ATHERINE P ALMER -W EMP , W ALTER S ASSE , C HRISTINA K HULY , D AVID S TARK , D IANE S TARK , U LSTER C OUNTY S OCIETY FOR THE P REVENTION OF C RUELTY TO A NIMALS , B RADLEY K NEE , A VERY S MITH , L ARAINE C ALIRI , Defendants-Appellees , T HOMAS N ACE ,
Defendant.
B e f o r e:
N EWMAN , S TRAUB , and L YNCH , Circuit Judges .
__________________
Aрpeal 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.
A FFIRMED .
M ATTHEW M ICHAEL (Andrew Beyer, Baruch Weiss, on the brief ), Arnold & Porter LLP, Washington, DC, for Plaintiff-Appellant .
S UE H. R. A DLER (Dean S. Sommer, on the brief ), Young Sommer Ward Ritzenberg Baker & Moore LLC, Albany, New York, for Defendants- Appellees .
G ERARD E. L YNCH , Circuit Judge :
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.
BACKGROUND
I. The SPCA Investigation and State Criminal Proceedings The material facts of this case are not in dispute. [1]
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.
*4 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. [2]
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 *6 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 filеd 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 thrеe 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 “wаs 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, *9 “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 dоgs “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 *10 well as flea infestation; and a third dog had a severe ear infection, ear and periodontal diseases, and flea infеstation. [3] In addition, the cat was found to have an ear infection and a distended stomach. [4] 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. [5] 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. [6] *11 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 *12 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, [7] 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. [8] *13 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 § 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 would have known. Fabrikant v. French, 328 F. Supp. 2d 303, 310-12 (N.D.N.Y. 2004) (“Fabrikant I”). Fabrikant and her co-plaintiff appealed. III. First Appeal
On appeal, we vacated the district court’s decision and remanded for further
proceedings. Schindler v. French,
omitted). We remanded to the district court “with instructions to dismiss the non- *14 conspiracy counts against [SPCA] without prejudice and permit plaintiffs an opportunity to replead these claims.” Id .
In addition, we concluded that the district court had improperly dismissed plaintiffs’ claims against defendants Spinato and Sasse, the SPCA investigators, as those defendants acted as “duly authorized peace officers,” and thus were state actors, when they conducted the search of Fabrikant’s house and the seizure of the dogs. Id. (internal quotation marks omitted). We further concluded that the district erred by deeming Spinato and Sasse protected from liability by qualified immunity, given that the complaint “alleges that Spinato and Sasse obtained the search warrant in bad faith and knew that the supporting depositions were false and misleading.” Id. At the pleading stage, we said, such allegations “preclude dismissal on the basis of qualified immunity.” Id.
Finally, we disagreed with the district court’s assessment that plaintiffs had “offered only vague and conclusory allegations in support of their conspiracy claims.” Id. at 20. On the contrary, we held, the complaint included “detailed allegations that defendants used false deposition testimony and medical reports to improperly obtain a search warrant and pursue false criminal charges against plaintiff Fabrikant and seize her animals,” allegations that sufficed to withstand a motion to dismiss. Id. We also vacated the district court’s dismissal of plaintiffs’ pendent state-law claims “since the sole reason the district court declined to exercise supplemental jurisdiction over these claims was that the federal claims had been dismissed,” although we noted that “we question whether plaintiff Schindler’s state law claim is properly joined with plaintiff Fabrikant’s federal and state law claims.” Id .
*15 IV. Proceedings on Remand
On remand to the district court, Fabrikant, proceeding pro se, and her co-plaintiff
filed an amended complaint and a second amended complaint. The district court
appointed pro bono counsel for Fabrikant “for purposes of discovery, pretrial motions,
and trial only.” Following discovery, defendants moved for summary judgment.
Fabrikant withdrew her presumption-of-innocence and right-to-counsel claims, which the
district court dismissed. The court granted summary judgment in defendants’ favor on
the remaining claims. Fabrikant v. French,
As to the First Amendment retaliation and unreasonable search and seizure claims,
the district court found that probable cause existed to defeat those claims. The district
court noted as well that the state court in Fabrikant’s criminal case had already denied her
suppression motion and “determined that the search warrant was supported by probable
cause,” concluding that Fabrikant was therefore “barred from relitigating this issue while
prosecuting her federal constitutional claims under § 1983 in federal court.” Id., citing
Allen v. McCurry,
As for the remaining state-law claims, the district court declined to exercise
supplemental jurisdiction over them, “[i]n light of the decision to dismiss the federal
causes of action.” Fabrikant II,
Fabrikant again appealed.
V. The Present Appeal
We appointed pro bono appellate counsel for Fabrikant and directed counsel to “exercise professional judgment in deciding which arguments to pursue on appeal, with the court directing only that, in pursuing any due process claim, counsel brief whether the SPCA and its employees and agents acted under color of state law in taking any challenged action, including whether they spayed and neutered appellant’s animals pursuant to New York Agriculture & Markets Law § 377-a(2).” In addition, after oral argument we requested supplemental briefing on the issue of qualified immunity, specifically directing the parties to address three questions:
(a) Were the purported substantive and procedural due process rights asserted by Fabrikant “clearly established” at the time of the SPCA’s decision to spay and neuter the animals?
(b) Can qualified immunity be predicated on a conclusion that, even if it was “clearly established” that the actions of the SPCA officials, if committed by a police officer, violated the due process clause, it was not “clearly established” that similar actions by officials of the SPCA are taken under color of state law?
(c) Can this Court make a qualified immunity determination on the present record, or should the issue be decided by the district court on remand?
The parties have filed supplemental briefs in response to that order, and have also submitted letters to the Court, pursuant to Federal Rule of Appellate Procedure 28(j), regarding the Supreme Court’s June 4, 2012, decision in Reichle v. Howards, 132 S. Ct. 2088 (2012), which concerns qualified immunity.
DISCUSSION
We review a district court’s grant of summary judgment de novo, see Nagle v.
Marron,
On this appeal, Fabrikant argues that genuine issues of material fact remain on each of her federal claims, and that the district court therefore erred in grаnting summary judgment for defendants. Specifically, she argues (1) that the district court erred by concluding that the SPCA defendants “did not act under color of state law when they *19 spayed and neutered” Fabrikant’s dogs; (2) that the district court “erred by giving preclusive effect to the state court’s determination regarding the facial validity of the search warrant”; and (3) that genuine issues of material fact remain regarding whether the SPCA defendants “acted without probable cause to forcibly enter Ms. Fabrikant’s home, arrest her, seize her animals, and prosecute her,” because (a) “there is evidence in this case that [SPCA] investigators knew or should have known from their own observations that the information in the affidavit in support of the search warrant was misleading and/or false,” and because (b) the district court “improperly substituted its judgment for that of the jury and found probable cause based largely on post-arrest video and photo evidence that shows no violations of” New York law, “but instead shows a messy house.”
We agree with the district court that no genuine issues of material fact remain on any of Fabrikant’s federal claims, and that defendants are entitled to summary judgment. However, we reach that conclusion for reasons different in some respects from those articulated by the district court. See Bruh v. Bessemer Venture Partners III L.P., 464 F.3d 202, 205 (2d Cir. 2006) (observing that “we may affirm on any basis for which there is sufficient support in the record, including grounds not relied on by the district court”). Most notably, we disagree with part of the district court’s state-action analysis. We conclude that the SPCA defendants engaged in state action when they performed surgery on the seized dogs prior to sending them to foster homes. However, we also conclude that, as state actors, those defendants are entitled to qualified immunity, because the due process rights asserted by Fabrikant were not “clearly established” at the time of defendants’ challenged actions.
I. State Action
We have not previously addressed whether a private animal-rescue organization and its employees and agents act under color of state law for purposes of 42 U.S.C. § 1983 when they perform surgery on seized pets against the owner’s wishes or without the owner’s knowledge. This case therefore presents an issue of first impression for our Court. [10]
Section 1983 provides that “[e]very person who, under color of any [state] statute,
ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen
of the United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper proceeding for
*21
redress.” 42 U.S.C. § 1983. “Because the United States Constitution regulates only the
Government, not private parties, a litigant claiming that his constitutional rights have
been violated must first establish that the challenged conduct constitutes state action.”
Flagg v. Yonkers Sav. & Loan Ass’n ,
“[S]tate action requires both an alleged constitutional deprivation ‘caused by the
exercise of some right or privilege created by the State or by a rule of conduct imposed by
the State or by a person for whom the State is responsible,’ and that ‘the party charged
with the deprivation must be a person who may fairly be said to be a state actor.’” Am.
Mfrs. Mut. Ins. Co. v. Sullivan,
Supreme Court cases on the subject of state action “have not been a model of
consistency,” and we therefore have “no single test to idеntify state actions and state
actors. Rather, there are a host of factors that can bear on the fairness of an attribution of
a challenged action to the State.” Cooper v. U.S. Postal Serv.,
For the purposes of section 1983, the actions of a nominally private entity are attributable to the state . . . (1) [when] the entity acts pursuant to the coercive power of the state or is controlled by the state (“the compulsion test”); (2) when the state provides significant encouragement to the entity, the entity is a willful participant in joint activity with the state, or the entity’s functions are entwined with state policies (“the joint action test” or “close nexus test”); or (3) when the entity has been delegated a public function by the state (“the public function test”).
Sybalski v. Indep. Grp. Home Living Program, Inc.,
at 50; Cooper,
*23
In analyzing whether a private entity acts under color of state law for purposes of
§ 1983, we begin “by identifying the specific conduct of which the plaintiff complains,”
rather than the general characteristics of the entity. Sullivan,
We need not resolve whether the spaying and neutering were compelled primarily
by New York law or only by SPCA internal policy, and whether the dogs were “adopted”
*24
for purposes of New York law or merely temporarily “fostered,” because those issues are
ultimately immaterial to this appeal. The spaying and neutering of the dogs, like the
search and arrest, constituted state action because they were part of the state function of
animal control delegated to the SPCA by state law. Those actions, indeed, would not
have been possible but for the SPCA defendants’ prior state action. See West v. Atkins,
Indeed, the dogs were in the custody of the SPCA, and subject to its decisions
about their appropriate care, as a result of a specific delegation of authority from the state.
The state court ordered that the seized dogs remain in SPCA custody pending Fabrikant’s
criminal proceedings, but allowed the animals not seized to remain on Fabrikant’s
property. Under state law, such an order may not even have been necessary for the SPCA
to maintain custody of the seized dogs, given that the New York Agriculture and Markets
Law “does not set forth any procedure for the return of animals” seized by an animal
control organization, and in fact “conveys authority upon” the SPCA “to humanely
destroy an animal already in its lawful possession.” Montgomery County SPCA v.
Bennett-Blue,
Defendants have not cited and we have not found any case, from our circuit or any
other, in which a court treated an animal control organization’s investigatory activities
and seizure of animals as state action, but its spaying and neutering of such animals as
private action. To the contrary, the few courts that have addressed this issue have drawn
no such distinction. See, e.g., Daskalea v. Wash. Humane Soc’y,
In operating on Fabrikant’s dogs following their seizure, however, the SPCA defendants were not acting in a private capacity, but were exercising “powers traditionally exclusively reserved to the State.” Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974). Animal control is part of the state’s police power. More than a century ago, the Supreme Court recognized:
Acting upon the principle that there is but a qualified property in [dogs], and that, while private interests require that the valuable ones shall be protected, public interests demand that the worthless shall be exterminated, they have, from time immemorial, been considered as holding their lives at the will of the legislature, and рroperly falling within the police powers of the several states. . . .
Even if it were assumed that dogs are property in the fullest sense of the word, they would still be subject to the police power of the state, and might be destroyed or otherwise dealt with, as in the judgment of the legislature is necessary for the protection of its citizens.
Sentell v. New Orleans & C.R. Co.,
The reasoning of West and Cooper extends to the present case. Just as “only the
State may legitimately imprison individuals as punishment for the commission of crimes,”
and thus the “[a]cts of prison employees will therefore almost certainly be considered acts
of the State whatever the terms of their employment,” Horvath,
The SPCA is not merely “a business affected with the public interest,” “subject to
extensive regulation,” subsidized by the public, or “given monopoly status by the state.”
Chan v. City of New York,
*30
On the facts of this case, in taking custody of the dogs and making decisions about
their proper maintenance and care, the SPCA officials were simply following up on the
initial seizure of the dogs, which concededly was state action. Just as the police maintain
custody of the property of an arrested person, so too did the SPCA undertake to safeguard
Fabrikant’s property – the dogs – after her arrest and their seizure. Thus, there is “a
sufficiently close nexus between the State and the challenged action of the [SPCA] that
the action of the latter may be fairly treated as that of the State itself” for purposes of
§ 1983. Jackson,
We therefore conclude that animal rescue organizations such as the SPCA – independent contractors to which, under New York law, municipalities can delegate authority to perform animal control – are state actors for purposes of § 1983 when they perform surgery on animals in their care while those animals are being kept from their (holding that a building security guard who was authorized by the state to use deadly force in self-defense, arrest people for criminal trespass pending arrival of the police, and carry a handgun was not a state actor because none of his powers were the exclusive preserve of the state). Here, the SPCA peace officers clearly enjoy powers that are the traditional prеserve of the state, and the parties agree that the search of Fabrikant’s home and seizure of the dogs constituted state action. The SPCA’s subsequent sterilization and fostering of the dogs was made possible only because the officers had previously exercised powers granted them by New York law and traditionally reserved for police officers.
[14] Thus, it does not matter whether state law specifically compelled, authorized, or
even forbade spaying or neutering of dogs under these circumstances. Having been vested
with custody of Fabrikant’s property as part of its delegated state-law enforcement
responsibilities, the SPCA, in choosing how to exercise its custodial function, engaged in
state action – just as a police officer’s activities in maintaining custody of an arrestee’s
property is state action, regardless of whether the officer’s particular action is compelled,
authorized, or forbidden by state law. Cf . Hudson v. Palmer,
II. Qualified Immunity
Our conclusion regarding state action does not end our inquiry, however, or compel reversal of the district court’s decision. To the extent that the SPCA defendants are subject to the obligations imposed on state actors, they also share the immunities the law extends to those actors. For reasons explained below, defendants are entitled to qualified immunity for spaying and neutering Fabrikant’s seized dogs prior tо sending them to foster homes.
A. Forfeiture
As an initial matter, Fabrikant contends that the defendants involved in the spaying
and neutering of her dogs waived or forfeited their qualified immunity defense by failing
to raise it in the district court or in their initial briefing to our Court – indeed, waiting to
unleash it until oral argument.
[15]
Although the defense of qualified immunity can indeed
be forfeited, see, e.g., McCardle v. Haddad,
*32 [W]e have discretion to consider waived arguments. We have exercised this discretion where the argument presents a question of law and there is no need for additional fact- finding. The matter of whether a right was clearly established at the pertinent time is a question of law.
Dean v. Blumenthal ,
B. Analysis
“The doctrine of qualified immunity protects government officials ‘from liability
for civil damages insofar as their conduct does not violate clearly established statutorily
or constitutional rights of which a reasonable person would have known.’” Pearson v.
Callahan,
*33
“To be clearly established, a right must be sufficiently clear that every reasonable
official would have understood that what he is doing violates that right.” Reichle v.
Howards,
The due process right asserted by Fabrikant – her right not to have her dogs
sterilized by the SPCA, at least without some form of process, prior to being sent to foster
homes while she was awaiting trial in state court on animal abuse charges – is not a right
that was “clearly established” at the time of defendants’ challenged actions in 2002. Nor
has the right achieved that status today. It was not then, and is not now, “sufficiently
clear that every reasonable official would have understood” that spaying or neutering
Fabrikant’s dogs following their seizure from her home violates a clearly established due
process right. See Reichle,
*35
Indeed, by spaying and neutering Fabrikant’s dogs and sending them to foster
homes, the SPCA appears to have acted well within the bounds of New York Agriculture
and Markets Law § 373. The Agriculture and Markets Law grants SPCAs and Humane
Societies broad powers to promote the welfare of at-risk animals. E.g. , N.Y. Agric. &
Mkts. Law §§ 372, 373(1), (2), (4). New York courts have consistently recognized the
breadth of those powers. See, e.g., Hand v. Stray Haven Humane Soc. & SPCA, Inc., 799
N.Y.S.2d 628, 631 (3d Dep’t 2005). As already noted, New York courts have held that
§ 373 “does not set forth any procedure for the return of animals.” Montgomery County
SPCA,
“The principles of qualified immunity shield an officer from personal liability
when an officer reasonably believes that his or her conduct complies with the law.”
Pearson,
III. Probable Cause
Fabrikant’s remaining federal claims fail because the search of Fabrikant’s home and her arrest were supported by probable cause.
The United States Constitution provides persons the right to be free from
unreasonable searches and arrests. U.S. Const. amend. IV. “Ordinarily, an arrest or
search pursuant to a warrant issued by a neutral magistrate is presumed reasonable
because such warrants may issue only upon a showing of probable cause.” Walczyk v.
Rio,
Probable cause for an arrest “requires an officer to have knowledge or reasonably
trustworthy information sufficient to warrant a person of reasonable caution in the belief
that an offense has been committed by the person to be arrested.” Panetta v. Crowley,
When determining whether probable cause exists courts must consider those facts available to the officer at the time of the arrest and immediately before it, as probable cause does not require absolute certainty. Courts should lоok to the totality of the circumstances and must be aware that probable cause is a fluid concept – turning on the assessment of probabilities in particular factual contexts – not readily, or even usefully, reduced to a neat set of legal rules. Nevertheless, an officer may not disregard plainly exculpatory evidence.
Id. (internal quotation marks, brackets, emphasis, and citations omitted). In addition,
“probable cause does not require an officer to be certain that subsequent prosecution of
the arrestee will be successful. It is therefore of no consequence that a more thorough or
more probing investigation might have cast doubt upon the situation.” Krause v. Bennett,
The existence of probable cause will defeat a claim of malicious prosecution and
unreasonable search and seizure. See Boyd v. City of New York,
As an initial matter, Fabrikant argues that the district court erroneously relied on
probable cause determinations made by the state court during Fabrikant’s criminal
proceedings. She contends that the issue of probable cause was not actually decided in
those proceedings, and that Fabrikant never received the full and fair opportunity to
litigate the issue there. To the extent the district court’s opinion can be read to treat
Fabrikant’s probable cause argument as collaterally estopped by her state court case, we
agree with Fabrikant that the district court erred. See Allen v. McCurry,
We agree with the district court that Fabrikant’s claims of malicious prosecution, unreasonable search and seizure, and First Amendment retaliation fail because defendants had probable cause to believe Fabrikant committed animal cruelty. Crucially, Fabrikant does not contest that multiple witnesses reported to the SPCA that Fabrikant was abusing of her animals; she merely argues that the witnesses were lying. In her deposition, Fabrikant testified:
Since it’s not the truth that I hurt my animals, abused my animals, neglected the animals and, therefore, they are сoming to accuse me of that and seizing them was based upon a lie, it’s my assessment that they all got together to put the lie together somehow; that they chose to do whatever they *40 needed to do in order to assemble the lie. And I’m not sure of who played what role in the lie, but a lie happened, because I know that I didn’t do what they say that I did. I know that their depositions were false.
I know that my animals were not abused and neglected. I know that they painted a picture of me to be different than what the truth was and in order to do that, they had to assemble a lie and make it appear that neglect happened.
However, later in the deposition, Fabrikant admitted that she had no evidence that defendants conspired against her, “other than [her] own assessments based upon the final result, which is that false and baseless charges were brought against me.”
That is insufficient as a matter of law to raise a factual issue as to the officers’
belief in the validity of the warrant and the information on which it was based.
“[I]nformation gleaned from informants can be sufficient to justify the existence of
probable cause. . . . [A] law enforcement official has probable cause to arrest if he
received his information from some person, normally the putative victim or eyewitness,
unless the circumstances raise doubt as to the person’s veracity.” Panetta,
Fabrikant has failed to raise any genuine issue of material fact as to the motives of the complaining witnesses. Instead, she makes only vague claims about the witnesses’ *41 conspiring against her, even though she admitted in her deposition that she had no evidence of any such conspiracy. Here, the complaining witnesses’ “status as [] identified citizen informant[s] provide[s] an indicia of reliability,” and “the fact that [their] descriptions . . . were based on eyewitness accounts also carries additional weight in assessing the reasonableness of [the investigators’] probable cause determination.” Id. at 397.
Furthermore, Fabrikant also does not materially contest the conditions observed by
SPCA investigators themselves during the course of the search of her home; instead, she
attempts to characterize those conditions in a more favorable light than SPCA
investigators viewed them – “a messy house,” for example, rather than conditions
constituting animal cruelty. But even assuming that Fabrikant’s explanations are
plausible, “[t]he fact that an innocent explanation may be consistent with the facts alleged
. . . does not negate probable cause.” United States v. Fama,
Fabrikant further contends that because the SPCA investigators visited her house on prior occasions and did not see fit to cite or arrest her on those visits, then they could have had no basis for obtaining a search warrant and searching her home at a later date, and they should have known that the complaining witnesses were mistaken or lying about *42 the conditions they claimed to have observed in Fabrikant’s home. This argument is wholly unavailing. That the investigators made multiple visits before applying for a warrant is unsurprising, given that they had not received all of the witness statements at the time of their visits. Furthermore, those witnesses described specific conditions and actions on Fabrikant’s part that might not necessarily have been present during the investigators’ initial visits to the home. In any event, an investigator’s initial efforts to gather information about a suspect – even if those initial efforts do not immediately result in an arrest – plainly do not foreclose the ability of the investigator to seek a search warrant against that suspect at a later time.
Next, Fabrikant insists that, in evaluating the probable cause question as it relates
to her arrest, the video recording made by investigators during the search is “irrelevant”
because defendants had “presumably” decided to arrest Fabrikant before they entered the
house, and because “the video was made after the arrest.” In her view, we may consider
only what the investigators knew before they reached the house and began the search,
because they had decided ahead of time that they were going to arrest Fabrikant, and thus
the actual conditions at the house at the time of the arrest should not affect the analysis of
whether they had probable cause to arrest her. That argument misses the mark. “Courts
evaluating probable cause for an arrest must consider those facts available to the officer at
the time of the arrest and immediately before it.” Lowth v. Town of Cheektowaga, 82
F.3d 563, 569 (2d Cir. 1996); see also Warren v. Dwyer,
At bottom, Fabrikant’s arguments attempt to turn the question of probable cause on
the issue of whether she
actually committed
animal cruelty. But that issue, while
determinative of her guilt or innocence on the state criminal charges, does not create a
genuine issue of material fact as to the existence of probable cause for the search of
Fabrikant’s house, the seizure of the animals, and Fabrikant’s arrest. The question is
whether there was a basis for a reasonable officer to
believe
, even if incorrectly, that
Fabrikant was committing animal cruelty. See Panetta,
Because probable cause existed to search Fabrikant’s house, arrest her, and prosecute her for animal cruelty, and because defendants are entitled to qualified immunity, Fabrikant’s malicious prosecution, unreasonable search and seizure, and First Amendment retaliation claims must fail.
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Notes
[1] Fabrikant has admitted or failed to contest most of these facts. Other facts, where noted, are drawn from the statements of witnesses who visited Fabrikant’s home in 2002. Fabrikant disputes the accuracy of some of those witnesses’ assertions. For purposes of this appeal, however, the relеvant question is not whether the witnesses’ statements were accurate, but whether a peace officer reviewing those statements – which plaintiff does not dispute were in fact made – could reasonably have believed that they established probable cause to apply for a search warrant of Fabrikant’s house. As explained later in this opinion, the witnesses’ statements clearly met that standard.
[2] Although Fabrikant contends Klock is lying, she does not dispute that Klock’s allegations were reported to the authorities.
[3] The findings of the veterinarian do not precisely match the witnesses’ accounts: one dog had an infection on its face, not on a foot; no dog had mange, though one had other skin diseases. The medical examination of the dogs sufficiently corroborated the witnesses’ accounts, however, to support the officers’ reliance on those accounts.
[4] Fabrikant does not dispute that the animals suffered from these veterinary conditions; she argues merely that they did not rise to the level of animal cruelty, and that some of the dogs already had these medical conditions when she adopted them.
[5] Again, Fabrikant does not dispute these facts. Instead, she attempts to explain, justify, or contextualize them. She argues that she placed the dogs in the bathroom and the cat in the bathroom closet to protect them during the SPCA’s raid of the house. Similarly, she contends that the feces on the floor of the bathroom “was most likely the result of the commotion during the home invasion and raid.” However, her proffered justifications do not raise a material issue of fact in this case, because while they are relevant to the question of whether Fabrikant actually committed animal cruelty – the question at issue in her state criminal trial – they have no bearing on the question before us: whether defendants had probable cause to believe that Fabrikant had committed animal cruelty.
[6] Fabrikant does not dispute these conditions. She disputes only how to characterize that evidence. Whereas defendants argue that because the photos and video showed open garbage bags, piles of feces, and animals locked in small crates, they constitute “evidence of inhumane conditions in which [Fabrikant] held the animals,” Fabrikant argues that the photos and video show merely a “messy house,” which she argues is no crime. She further contends that the conditions in the house could in fact be “characterized as evidence of a loving home for her animals.”
[7] Fabrikant’s co-plaintiff on one of the state-law claims in the complaint (libel) was Russell A. Schindler, her attorney for her state criminal case. Schindler represented himself. Fabrikant represented herself in the district court, although, as explained below, she is now represented by court-appointed pro bono counsel. Schindler is not a party to this appeal.
[8] Fabrikant’s Notice of Appeal purports to challenge the district court’s dismissal of her “numerous claims and case.” But in her appellate brief, Fabrikant does nоt challenge the district court’s decision not to exercise supplemental jurisdiction over her pendent state-law claims. Accordingly, she has abandoned those claims. See Universal Church v. Geltzer, 463 F.3d 218, 229 (2d Cir. 2006) (“Generally claims not raised on appeal are deemed abandoned, at least when it is the appellant who fails to do so.”).
[9] Fabrikant complains that the district court granted summary judgment without first
hearing oral argument. From the district court docket sheet, it is difficult to discern what
exactly transpired: the court originally set a motion hearing, then postponed it at defendants’
request, and then again at plaintiffs’ request. Apparently oral argument never occurred.
Fabrikant makes no effort to explain how the oral argument came to be canceled or how she
might have been prejudiced by the district court’s decision not to hold oral argument. “[A]
party seeking to reverse a summary judgment order must demonstrate that it was prejudiced
by the court’s refusal to hear argument.” AD/SAT, A Div. of Skylight, Inc. v. Assoc. Press,
[10] Cf. Garraway v. Julian, 106 F. App’x 745, 745-46 (2004) (summary order)
(concluding that plaintiff’s suit against Humane Society’s administrator for detention of dog
was collaterally estopped “because the New York State Supreme Court . . . ruled that the dog
did not belong to [plaintiff]” and plaintiff therefore lacked standing, and declining to reach
the issue of whether administrator was a state actor). Several other circuits have touched on
related but not identical issues, reaching varying results on records differing in various ways
from the present case. See, e.g., Crawford v. Van Buren County,
[11] By “animal control,” we mean the regulation of privately owned animals for the
purpose of protecting those animals or the community. Animal control includes such
activities as investigating animal cruelty, impounding or confiscating animals, and bringing
criminal charges against citizens. See, e.g., Brunette,
[12] Cases in which an SPCA has been found not to be a state actor are easily
distinguishable. In Robbins v. Cloutier, for example, we held that an SPCA did not engage
in state action in firing one of its peace officers, but noted that the organization may be a state
actor for § 1983 purposes with respect to its provision of animal-control services. 121 F.
App’x 423, 424 (2d Cir. 2005) (summary order). See also Petrusa v. Suffolk County SPCA,
No. 05-CV-6017,
[13] Other courts have recognized that where private actors perform powers traditionally
reserved for police officers, the private actors can be considered state actors. See, e.g.,
Payton v. Rush-Presbyterian-St. Luke’s Med. Ctr.,
[15] In the district court, the parties’ state-action arguments focused on Spinato and Sasse, the SPCA peace officers. Those defendants raised a qualified immunity defense, although the other SPCA defendants did not.
[16] The two out-of-circuit cases that Fabrikant cites, from the Seventh and Tenth
Circuits, are plainly inapposite, as well as not binding on this Court. Neither case deals with
spaying or neutering. In Porter v. DiBlasio,
[17] Of course, we do not suggest that state law may authorize conduct that clearly violates federal constitutional rights. We merely note that, in the absence of clеarly established federal law to the contrary, a state actor who relies on state law authorizing his behavior is unlikely to be found to have acted unreasonably in believing his conduct to be lawful.
[18] Nor do we endorse the district court’s observation that Fabrikant offered “no opposition to defendants’ argument with respect to her free speech claim despite being granted permission to submit a memorandum of law in excess of the traditional twenty-five pages afforded litigants under” the local rules. Fabrikant II,722 F. Supp. 2d at 257 . This passage could be read as suggesting that Fabrikant waived an argument in opposition to defendants’ summary judgment motion. If that is what the district court meant, it erred. Federal Rule of Civil Procedure 56 provides that if a party fails to properly support or address another party’s assertion of fact, the court may “grant summary if the motion and supporting materials – including the facts considered undisputed – show that the movant is entitled to it.” Fed. R. Civ. P. 56(e)(3). We have “made clear” that where a nonmoving party “chooses the perilous path of failing to submit a response to a summary judgment motion,” the district court still has an obligation to determine whether summary judgment is appropriate. Vt. Teddy Bear Co. v. 1-800-Beargram Co.,373 F.3d 241 , 244 (2d Cir. 2004) (internal quotation marks omitted). If the evidence submitted with the summary judgment motion fails to meet “the movant’s burden of production, then summary judgment must be denied even if no opposing evidentiary matter is presented .” Id. (emphasis added) (internal quotation marks omitted). Here, the district court gave ample reason that Fabrikant’s First Amendment claim failed as a matter of law beyond Fabrikant’s failure to oppose this part of defendants’ summary judgment motion. Accordingly, this passage of the district court’s opinion does not require reversal.