                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-3314
                        ___________________________

                                    Darryl Lunon

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

            Kathy Botsford, in her individual and official capacities as
         Director of Pulaski County Sanitation and Animal Services, et al.

                      lllllllllllllllllllllDefendants - Appellants
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                          Submitted: September 24, 2019
                            Filed: December 27, 2019
                                  ____________

Before LOKEN, COLLOTON, and KOBES, Circuit Judges.
                          ____________

LOKEN, Circuit Judge.

      Abandoning state law damage claims barred by statutory immunity, Darryl
Lunon filed an amended complaint seeking damages under 42 U.S.C. § 1983. The
individual defendants, sued in their individual and official capacities, are Animal
Control Officer Jonathan Dupree of the Pulaski County Sanitation and Animal
Services (“PCAS”), PCAS Director Kathy Botsford, and City of North Little Rock
Animal Control Director David Miles. Also named as defendants are Pulaski County,
PCAS, the City of North Little Rock, and North Little Rock Animal Control.

        Lunon alleges that each individual defendant violated his constitutional right
to procedural due process when the North Little Rock Animal Shelter, after a five-day
holding period, put a stray dog up for adoption and spayed the dog before delivering
it to the adopting family. Unknown to defendants, the stray dog was Lunon’s young
German Shepherd, Bibi Von Sonnenberg (“Bibi”), which boasts world champion
lineage and had escaped from Lunon’s back yard two weeks earlier. Lunon argues he
had a procedural due process right to notice and an opportunity to be heard before
Bibi was put up for adoption and her substantial value as a breeding dog destroyed by
spaying. He further alleges that Pulaski County and North Little Rock are liable for
failing to train their employees to comply with procedures that required animal control
officers to scan Bibi for an embedded microchip that would have disclosed Lunon as
her owner.

       Defendants removed the case to federal court and moved for summary
judgment, which the district court denied. The individual defendants “in their
individual capacities” then filed this interlocutory appeal, arguing the district court
erred in denying their motion for summary judgment because they are entitled to
qualified immunity. Reviewing the denial of qualified immunity de novo, we agree
and therefore reverse. Sutton v. Bailey, 702 F.3d 444, 446 (8th Cir. 2012) (standard
of review).

                                   I. Background

      After Bibi escaped from Lunon’s yard on February 14, 2017, Will Quinn
discovered a dog he did not recognize in his nearby garage and called the Pulaski
County Sheriff’s Office, which dispatched a deputy sheriff and contacted PCAS.



                                         -2-
PCAS dispatched Dupree, the only animal control officer on duty that day because a
colleague had called in sick. A Pulaski County ordinance authorizes animal control
officers, “on complaint by a resident,” to pick up and impound in an animal shelter a
“stray” domestic animal that is off the owner’s premises and running at large. Stray
is defined as lacking a collar with the owner’s name, address, and phone number. At
Quinn’s garage, Bibi did not resist Dupree, who saw that she had a collar but no metal
tag identifying her owner.1 With the dog’s owner unknown, Dupree took Bibi to the
North Little Rock Animal Shelter. The Shelter is an agency of the City, not Pulaski
County, but has a contract to accept stray dogs from Pulaski County animal control
officers for impoundment.

      Lunon’s procedural due process claim is based in large part on Dupree’s failure
to comply with Section III of PCAS Procedure P14-06, which provides:

      It shall be the responsibility of the Animal Service Officer who brings an
      animal into the North Little Rock Animal Shelter to make a kennel card
      for the animal. It shall also be the responsibility of this person to scan
      the animal for an implanted microchip and note it on the kennel card.
      All animals should be scanned [unless dangerous]. The Microchip
      Scanner is located above the work table in the kennel and must be
      returned there after each use!

When Dupree delivered Bibi to the Animal Shelter, he did not scan her for a
microchip. A scan would have revealed a permanent identifying number that could
have been searched through the American Kennel Club to identify Lunon as her
owner. Dupree completed the required kennel card, but he left blank the space for
microchip scanning and incorrectly listed Bibi as a male dog.


      1
         Lunon testified that Bibi had a tag (as a Pulaski County ordinance required).
In reviewing the denial of summary judgment, we accept Lunon’s testimony as true,
but it is undisputed that Dupree did not see a tag.


                                         -3-
      Animal Shelter staff impounded Bibi without scanning her for a microchip.
The Shelter impounded Bibi for five days, consistent with Section 3.1.7(B) of the
North Little Rock Municipal Code:

      If the owner of an impounded dog fails or refuses to reclaim such dog
      within five days after impoundment, the city animal shelter is hereby
      authorized to release such dog to a person other than the owner upon the
      payment of required fees or to humanely euthanize the dog.

Following the five-day hold, the Shelter put Bibi up for adoption and signed an
adoption contract with Christopher Vance on February 24. Section 3.1.5 of the North
Little Rock Municipal Code prohibited the Shelter from “releas[ing] to a new owner
any dog . . . which has not been sterilized.” Accordingly, the Shelter had Bibi
sterilized on February 28 before delivering her to Vance.

       After Bibi escaped, Lunon testified that he searched his neighborhood, posted
flyers, and requested help from friends on social media. Three days after the escape,
he called PCAS and North Little Rock and was told they did not have a German
Shepherd. A week after the escape, Quinn told Lunon “the police” had picked up his
dog. Lunon again called PCAS and North Little Rock and was again told they did not
have a German Shepherd. On March 18, Quinn called and told Lunon the Pulaski
County Sheriff had responded to Quinn’s complaint and picked up the dog. Lunon
contacted the Sheriff’s Office and obtained a copy of a report on Quinn’s complaint
stating that “animal control dupree was contacted.” Lunon then met separately with
PCAS and Animal Shelter officials including Dupree. They were able to reconstruct
Bibi’s capture, impoundment, adoption, and spaying. Lunon recovered ownership of
Bibi from Vance in a state court replevin action. This § 1983 damage action followed.




                                         -4-
                                      II. Discussion

       Qualified immunity shields public officials from liability for civil damages if
their conduct does not “violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). To defeat summary judgment based on qualified immunity, Lunon must
show that the individual defendants acting in their individual capacities violated a
constitutional or statutory right that was clearly established at the time of the violation.
Hansen v. Black, 872 F.3d 554, 557-58 (8th Cir. 2017), cert. denied, 138 S. Ct. 2010
(2018). The district court and Lunon assumed that defendants are collectively
responsible for any procedural due process violation. This is wrong. We require “an
individualized analysis of each officer’s alleged conduct to determine whether the
factual allegations . . . were sufficient to overcome qualified immunity.” Roberts v.
City of Omaha, 723 F.3d 966, 974 (8th Cir. 2013); see Manning v. Cotton, 862 F.3d
663, 668 (8th Cir. 2017).

       Lunon argues that defendants denied him his Fourteenth Amendment right to
procedural due process when they adopted out and spayed his dog Bibi without
providing pre-deprivation notice and an opportunity to be heard. The Due Process
Clause constrains “governmental decisions which deprive individuals of ‘liberty’ or
‘property’ interests.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Property
interests “are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law -- rules or
understandings that secure certain benefits and that support claims of entitlement to
those benefits.” Board of Regents v. Roth, 408 U.S. 564, 577 (1972) (emphasis
added). If Lunon establishes a protected property interest, “the question remains what
process is due,” which is a question of federal constitutional law. Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 541 (1985) (quotation omitted).




                                            -5-
       In this case, the district court failed to devote sufficient attention to whether
Lunon had a protected procedural due process property interest and if so, the nature
and extent of that interest. The court reasoned: “Animal owners have a substantial
interest in maintaining their [ownership] rights in animals seized by the state, whether
those animals are pets who are maintained for companionship or are animals owned
for commercial purposes,” citing Porter v. DiBlasio, 93 F.3d 301, 306 (7th Cir. 1996).
But Porter was a suit against officers who seized neglected animals and transferred
ownership without notice to their known owner.2

       In this case, Lunon asserts the same procedural due process rights against
officers who picked up a stray domestic animal. Lunon’s claim is that defendants had
an affirmative constitutional duty to learn that he was Bibi’s owner, a duty they
breached by failing to scan Bibi’s microchip. The Supreme Court declared more than
a century ago: “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., 166 U.S. 698,
704 (1897). And in Nicchia v. People of State of New York, 254 U.S. 228, 230-31
(1920), the Court declared that “property in dogs . . . may be subjected to peculiar and
drastic police regulations by the state without depriving their owners of any federal
right.” These precedents, not since questioned, required the district court to take a
close look at the Arkansas law relating to stray animals.




      2
       Other animal seizure cases cited by Lunon are distinguishable for the same
reason. See DiCesare v. Stuart, 12 F.3d 973, 978 (10th Cir. 1993); Humane Soc’y of
Marshall Cty. v. Adams, 439 So.2d 150, 153 (Ala. 1983); Anderson v. George, 233
S.E.2d 407, 408 (W. Va. 1977).


                                          -6-
      We conclude that longstanding Arkansas law is highly relevant, indeed
arguably controlling on the due process issue in this case. In Howell v. Daughet, the
Supreme Court of Arkansas stated, after reviewing cases from other jurisdictions:

             In those cases it was decided that under the police power there can
      be a summary seizure and sale of trespassing stock without personal
      service of notice on the owner, and without any kind of judicial
      proceedings. It may be noted . . . that the statute now under
      consideration provides for a judicial determination of the right under the
      statute to condemn in a given case, though it does not provide for the
      personal service of notice. It is not doubted that the provisions of the
      statute are valid so far as they relate to the seizure and sale of the
      property.

230 S.W. 559, 560 (Ark. 1921) (emphasis added). In the earlier case of Fort Smith
v. Dodson, where a property owner challenged the impoundment and sale of swine
found running at large, the Court held that five days’ notice by posters in public places
was “all that is necessary” to satisfy due process. 46 Ark. 296, 300 (1885).

       We have held that “[a] dog owner’s protected property interest wanes if [his]
pet escapes.” Hansen, 872 F.3d at 559. As the Fourth Circuit explained, “dog owners
forfeit many of th[eir] possessory interests when they allow their dogs to run at large,
unleashed, uncontrolled, and unsupervised, for at that point the dog ceases to become
simply a personal effect and takes on the nature of a public nuisance.” Altman v. City
of High Point, N.C., 330 F.3d 194, 206 (4th Cir. 2003). Hansen and Altman involved
Fourth Amendment claims that stray dogs were personal property that had been
unlawfully seized. This case involves a different type of due process claim -- an
asserted procedural due process property interest in pre-deprivation notice and an
opportunity to be heard.




                                          -7-
       Due process is a flexible concept, requiring only “such procedural protections
as the particular situation demands.” Mathews, 424 U.S. at 334 (quotation omitted).3
Lunon concedes that defendants had the right to seize Bibi as a stray dog under the
Pulaski County ordinance, and to impound, adopt out, and spay the dog under the City
of North Little Rock Municipal Code. But, he argues, defendants violated his
procedural due process right to affirmative notice before Bibi was adopted out and
spayed. The Supreme Court of Arkansas expressly rejected this claimed procedural
right in Howell v. Daughet and Fort Smith v. Dodson. If one views those decisions
as defining the dimensions of Lunon’s procedural due process property interest under
Board of Regents v. Roth, then he has no due process claim. If those decisions are
instead viewed as declaring “what process is due,” that is a federal question so they
are not controlling precedents.4

       We agree with the Supreme Court of Arkansas that affirmative pre-deprivation
notice is not constitutionally required in this situation, when an animal shelter holds
a stray dog for more than five days and then adopts out and spays the dog after the
owner fails to file a claim. Cf. Mickelson v. Cty. of Ramsey, 823 F.3d 918, 928 (8th
Cir. 2016), cert. denied, 137 S. Ct. 1578 (2017) (rejecting the categorical assertion that
only pre-deprivation procedures can satisfy due process). Numerous reported
decisions involving stray dogs have reached the same conclusion. See Fabrikant, 691

      3
       “Relevant factors include the affected private interest, the risk of an erroneous
deprivation, the probable value of additional procedural safeguards, and the
government’s interest, including burdens that additional safeguards would entail.”
Parrish v. Mallinger, 133 F.3d 612, 615 (8th Cir. 1998), citing Mathews, 424 U.S. at
335.
      4
        At a minimum, these Supreme Court of Arkansas decisions establish that the
procedural due process right alleged by Lunon -- that defendants had an affirmative
duty to learn the identity of a stray dog’s owner and to provide personal notice before
adopting out and spaying the dog -- was not clearly established at the time of the
alleged violation. See Fabrikant v. French, 691 F.3d 193, 212-13 (2d Cir. 2012).


                                           -8-
F.3d at 212-14; Wall v. City of Brookfield, 406 F.3d 458, 459-60 (7th Cir. 2005);
O’Keefe v. Gist, 908 F. Supp.2d 946, 952-53 (C.D. Ill. 2012) (due process does not
require municipalities to scan dogs for microchips); Lamare v. N. Country Animal
League, 743 A.2d 598, 603 (Vt. 1999) (noting that “longterm confinement is severely
detrimental to the health of dogs and a considerable expense to the impounding
agency”); Jenkins v. City of Waxahachie, 392 S.W.2d 482, 484 (Tex. Civ. App.
1965); see generally Validity of Statute or Ordinance Providing for Destruction of
Dogs, 56 A.L.R.2d 1024 (1957).

       In addition, Lunon failed to prove that each individual defendant’s conduct
violated his right to procedural due process. Defendant Dupree picked up Bibi and
delivered her to the North Little Rock Animal Shelter. Picking up a stray dog and
turning it over to the Animal Shelter for proper impounding did not deprive Lunon of
a protected property interest. See Wall, 406 F.3d at 460; Williams v. Soligo, 104 F.3d
1060, 1061 (8th Cir. 1997). Lunon’s claim is that the Shelter’s adoption and spaying
nearly two weeks later deprived him of procedural due process. Dupree did not
participate in these actions, but Lunon argues Dupree is nonetheless liable because the
deprivation “resulted from [Dupree’s] adherence to an established procedure” of
ignoring his duty to scan animals he delivered to the Shelter. But there is no
constitutional duty to scan a stray dog for a microchip, and “[o]fficials sued for
constitutional violations do not lose their qualified immunity merely because their
conduct violates some statutory or administrative provision.” Davis v. Scherer, 468
U.S. 183, 194 (1984). Lunon had a claim under state law (barred by statutory
immunity) that Dupree’s negligent failure to scan Bibi proximately caused Lunon’s
loss of the dog’s substantial economic value, but “the Due Process Clause is simply
not implicated by a negligent act of an official.” Daniels v. Williams, 474 U.S. 327,
328 (1986).




                                         -9-
       Defendant Botsford was a supervisor at PCAS. Though a supervisor can be
individually liable if she participates in a constitutional violation, Lunon offered no
evidence that Botsford participated in Bibi’s adoption and sterilization or even had
knowledge that Dupree did not scan Bibi or accurately complete a kennel card at the
Animal Shelter. Rather, Lunon argues that Botsford is personally liable for the
alleged procedural due process violation because she “instituted and enforced” an
“established pattern of non-compliance” with two Pulaski County directives:
(i) a County ordinance providing that “[w]hen [an] animal is impounded, the [PCAS]
director or personnel shall give notice to the owner, if known, of at least forty-eight
(48) hours,”5 and (ii) the PCAS policy requiring animal control officers to scan stray
dogs delivered to the Animal Shelter for microchips. Botsford is entitled to qualified
immunity on this failure-to-train claim because no subordinate violated Lunon’s
constitutional rights. See Brockinton v. City of Sherwood, Ark., 503 F.3d 667, 673
(8th Cir. 2007).

        Defendant Miles was a supervisor at the North Little Rock Animal Shelter.
Lunon offered no evidence that Miles personally participated in Bibi’s adoption and
sterilization. Rather, Lunon argues that Miles “should have known” his subordinates’
failure to scan Bibi or investigate the incomplete kennel card would lead to their
failure to give Lunon notice and an opportunity to be heard. Like Botsford, Miles
cannot be liable in his individual capacity for failure to train his subordinates because
Lunon failed to prove those subordinates violated his constitutional rights. Moreover,
“should have known” is a claim of negligence that does not implicate the Due Process
Clause. Daniels, 474 U.S. at 328. For these reasons, each individual defendant is
entitled to qualified immunity as a matter of law because Lunon failed to show that
he or she violated Lunon’s federal constitutional right to procedural due process.

      5
      This claim is without merit, first because Bibi was impounded by the City of
North Little Rock, not Pulaski County, and second because Bibi’s owner was
unknown throughout her impoundment.


                                          -10-
      For the foregoing reasons, the Order of the district court dated October 25,
2018, is reversed insofar as it denied summary judgment to the individual defendants
acting in their individual capacities, the only issue before us on appeal. The case is
remanded with directions to enter judgment dismissing those claims with prejudice
and for further proceedings not inconsistent with this opinion.

COLLOTON, Circuit Judge, concurring in the judgment.

        I agree with the court insofar as it holds that the appellants are entitled to
qualified immunity because they did not violate any clearly established right of
appellee Lunon. There is no comparable decision holding that a party in Lunon’s
position is entitled to the requested pre-deprivation notice and hearing before officials
sterilize a stray dog and place it out for adoption. The closest decisions, see ante, at
8-9, rule against the existence of similar rights. Lunon may have a better case than
some earlier litigants, but the claimed right is far from obvious. I therefore concur in
the judgment reversing the denial of qualified immunity to the individual-capacity
defendants.

      It is a closer question whether Lunon presented sufficient evidence to support
a due process claim against one or more of the defendants under the framework of
Mathews v. Eldridge, 424 U.S. 319 (1972). Although Lunon’s private interest is
diminished by the fact that he allowed his dog to run stray, other Mathews factors are
more favorable to his claim: the evident risk of erroneous deprivation, the seemingly
high value of scanning for a microchip to identify an owner who could be notified,
and the relatively modest burden that scanning for a microchip with a readily available
scanner would entail. Cf. O’Keefe v. Gist, 908 F. Supp. 2d 946, 952-53 (C.D. Ill.
2012) (rejecting due process claim where official had no scanner). In my view, the
old Arkansas cases, Howell v. Daughet, 230 S.W. 559 (Ark. 1921), and Fort Smith v.
Dodson, 46 Ark. 296 (1885), addressed the federal question of what process is due



                                          -11-
long before the Supreme Court developed its modern due process jurisprudence, so
they are both non-binding and outdated. In light of the Supreme Court’s direction to
“think hard, and then think hard again” before turning small cases into large ones by
deciding constitutional questions unnecessarily, Camreta v. Greene, 563 U.S. 692,
707 (2011), it is sufficient here to resolve the appeal based on immunity.
                         ______________________________




                                        -12-
