                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                         April 30, 2018
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
KENT MAYFIELD; TONYA
MAYFIELD,

      Plaintiffs - Appellants,

v.                                                        No. 17-3197
                                                 (D.C. No. 6:14-CV-01307-JTM)
HARVEY COUNTY SHERIFF’S                                     (D. Kan.)
DEPARTMENT; HARVEY COUNTY
DISTRICT COURT; T. WALTON;
CARMAN CLARK; JIM BETHARDS;
SCOTT MOTES; TODD HANCHETT;
GREG NYE; TIM BOESE,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, BALDOCK, and BACHARACH, Circuit Judges.
                  _________________________________

      Kent and Tonya Mayfield appeal the district court’s order dismissing their

claims against several members of the Harvey County Sheriff’s Department (HCSD)

and the HCSD itself. They also appeal the district court’s order denying their motion



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
for summary judgment against Jim Bethards and instead granting summary judgment

in his favor. We affirm.

      I. Background

      One morning in 2014, Harvey County Sheriff’s Deputies Jim Bethards and

Carman Clark took a report of dogs attacking livestock near Halstead, Kansas. They

began searching for the dogs and, less than a mile away, found three dogs matching

the description they were given. According to the officers, the dogs were near what

appeared to be an abandoned house and were not wearing collars or restrained in any

way. Two of the dogs fled as the officers approached, but the third behaved

aggressively and threatened to attack, so Bethards shot and killed it. That dog, a

three-year-old Malamute/Husky mix named Majka Tikaani, belonged to the

Mayfields.

      The Mayfields sued Bethards under 42 U.S.C. § 1983 claiming he violated

their Fourth Amendment rights. Their complaint also asserted claims against Clark,

fellow HCSD members Tim Boese and Todd Hanchett, the HCSD itself, and others.

The district court denied Bethards’ motion to dismiss on qualified immunity grounds,

but it dismissed the Mayfields’ claims against the other defendants.

      In a prior appeal, we affirmed the denial of Bethards’ motion to dismiss. See

Mayfield v. Bethards, 826 F.3d 1252, 1259 (10th Cir. 2016). We concluded the

allegations in the Mayfields’ complaint—which did not include the officers’ account

of the events—were sufficient to support the Mayfields’ claim that Bethards violated

their clearly established Fourth Amendment rights. See id. at 1258-59. We therefore

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agreed with the district court that Bethards was not entitled to dismissal on qualified

immunity grounds. See id. at 1259. Back in the district court, Bethards and the

Mayfields completed discovery and both moved for summary judgment. The district

court denied the Mayfields’ motion, but granted summary judgment in favor of

Bethards.

       In this appeal, the Mayfields argue1 the district court erred by (1) dismissing

their claims against Clark, Boese, Hanchett, and the HCSD2; (2) denying their motion

for summary judgment against Bethards; and (3) granting summary judgment in favor

of Bethards. We affirm the district court’s orders.

       II. The district court did not err by dismissing the Mayfields’ claims
           against Clark, Boese, Hanchett, and the HCSD.

       We review de novo the district court’s order dismissing the Mayfields’ claims

against Clark, Boese, Hanchett, and the HCSD. See S.E.C. v. Shields, 744 F.3d 633,

640 (10th Cir. 2014). To survive a motion to dismiss, a complaint must allege facts

that, if true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (internal quotation marks omitted). A claim is facially

plausible when the facts alleged give rise to “the reasonable inference that the


       1
         The Mayfields appear pro se, so we liberally construe their briefs and hold
their pleadings to a less stringent standard than those drafted by attorneys. Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). But the
Mayfields must follow the same rules of procedure as all litigants; we cannot serve as
their “attorney [by] constructing arguments and searching the record.” Id.
       2
        The Mayfields do not appear to challenge the dismissal of their claims
against the other defendants named in the complaint.

                                              3
defendant is liable.” Id. Applying this standard, we see no error in the district

court’s ruling.

               A. Clark

      The district court dismissed the Mayfields’ claim against Clark on qualified

immunity grounds. “Qualified immunity protects government officials from suit for

civil damages if their conduct does not violate clearly established statutory or

constitutional rights.” Mayfield, 826 F.3d at 1255. “When a defendant raises a

qualified immunity defense, the court must dismiss the action unless the plaintiff

shows that (1) the defendant violated a statutory or constitutional right, and (2) the

right was clearly established at the time of the violation.” Id.

      In their complaint, the Mayfields claim Clark violated Kent Mayfield’s Fourth

Amendment rights by temporarily seizing his handgun. The Mayfields allege that,

after hearing Majka had been shot, they drove to the scene and found Clark talking to

a neighbor. Kent Mayfield, armed with a holstered gun, approached Clark and asked

whether he shot Majka. Citing safety concerns, Clark seized the gun and returned it

at the end of their encounter.3

      The district court found the temporary seizure was a reasonable precaution to

ensure the safety of the officers and others present. See United States v. Gordon,

741 F.3d 64, 71 (10th Cir. 2014) (“Temporary seizures of persons or objects may be

permissible when reasonably connected to the safety of officers or the protection of

others.” (citation omitted)); see also United States v. Rodriguez, 601 F.3d 402, 408

      3
          The gun’s magazine was not returned until the next day.
                                            4
(5th Cir. 2010) (concluding “police were justified in temporarily seizing [a] shotgun”

when they responded to a domestic violence call, were told there was a gun in the

house, and “discovered that other persons were there whose presence had not been

disclosed during the 911 call”). It therefore concluded the complaint failed to state a

plausible Fourth Amendment claim and Clark was entitled to qualified immunity.

         The Mayfields identify no error in the district court’s reasoning. They just

argue Clark should be denied qualified immunity because of his participation in “the

illegal search and seizure” and an unspecified “cover up.” Opening Br. at 27. This

conclusory argument, without supporting authority, is not enough prevail on appeal.

See Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1092 (10th Cir.

2006).

               B. Boese and Hanchett

         The Mayfields’ complaint alleges that several HCSD officers, including Boese

and Hanchett, “were aware of [Bethards’ and Clark’s] criminal acts and did nothing

to stop the criminal cover up.” R. at 8. The complaint also accuses Boese of

“attempt[ing] to cover up a crime and slander.” Id. at 9. But “liability under § 1983

must be based on [a] defendant’s personal involvement in the alleged constitutional

violation.” Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 768

(10th Cir. 2013) (alterations and internal quotation marks omitted). So a complaint

must allege that each defendant, through his own actions, violated the constitution.

Id. Because the Mayfields’ complaint does not specify what actions Boese and



                                             5
Hanchett took to violate their constitutional rights, we agree with the district court

that they failed to state plausible claims against these defendants.

              C. The HCSD

        In their complaint, the Mayfields accuse the HCSD of “conspiring to commit

[an] illegal cover up.” R. at 8. The district court dismissed this claim because it

concluded the HCSD lacked the capacity to be sued. As the district court recognized,

for parties who are not individuals or corporations, the capacity to be sued is

determined “by the law of the state where the court is located.” Fed. R. Civ. P.

17(b)(3). Under Kansas law, “subordinate government agencies do not have the

capacity to sue or be sued in the absence of a statute.” Hopkins v. State, 702 P.2d

311, 316 (Kan. 1985) (concluding the Kansas Highway Patrol lacked the capacity to

be sued). There is no dispute the HCSD is a subordinate government agency and the

Mayfields do not identify a statute giving the HCSD the capacity to sue or be sued.

We therefore agree with the district court that the HCSD lacked the capacity to be

sued.

        III. The Mayfields were not entitled to summary judgment against
             Bethards.

        The district court denied the Mayfields’ motion for summary judgment

because it concluded they failed to satisfy the requirements of Fed. R. Civ. P. 56.

Reviewing the district court’s decision de novo, see Yaffe Companies, Inc. v. Great

Am. Ins. Co., 499 F.3d 1182, 1185 (10th Cir. 2007), we agree.




                                            6
       A party is entitled to summary judgment if he “shows that there is no genuine

dispute as to any material fact and [he] is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). The moving party “bears the initial burden of presenting

evidence to show the absence of a genuine issue of material fact.” Trainor v. Apollo

Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). He must support a claim

that a fact is not genuinely disputed by “citing to particular parts of materials in the

record, including depositions, . . . affidavits or declarations, . . . or other materials.”

Fed. R. Civ. P. 56(c)(1)(A); see D. Kan. R. 56.1(d) (“All facts on which a motion [for

summary judgment] or opposition is based must be presented by affidavit, declaration

under penalty of perjury, and/or relevant portions of the pleadings . . . .”).

       The Mayfields did not satisfy this standard. By our review, their motion for

summary judgment cites no evidence supporting their factual assertions. For

example, the Mayfields contend Majka “was not posing any threat to anyone,”

R. at 33, and “Bethards was not faced with any split-second decisions,” id. at 32,

before shooting her. But the Mayfields cite no evidence supporting these statements.

See Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004)

(“Unsubstantiated allegations carry no probative weight in summary judgment

proceedings.”). Moreover, the Mayfields were not present during the incident and do

not explain why their account of the events would be admissible at trial. See Argo v.

Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (“[A]

court necessarily may consider only the evidence that would be available to the



                                              7
jury.”). In short, the Mayfields failed to meet the requirements of Fed. R. Civ. P. 56

and the district court properly denied their motion for summary judgment.

      VI. The district court did not err by granting Bethards’ motion for
          summary judgment.

      The district court found that, based on the uncontroverted facts set forth in

Bethards’ motion for summary judgment, the Mayfields failed to show he violated

their clearly established Fourth Amendment rights by killing Majka.4 It therefore

concluded Bethards was entitled to qualified immunity and granted summary

judgment in his favor. We see no error.

       “We review de novo the district court’s order granting summary judgment . . .

on qualified immunity grounds.” Gutteridge v. Okla., 878 F.3d 1233, 1238 (10th Cir.

2018). When a defendant raises qualified immunity at the summary judgment stage,

the burden shifts to the plaintiff, who must show (1) the defendant violated his

constitutional rights and (2) the rights were clearly established. Id. To satisfy the

second requirement, the plaintiff must show it would have been “clear to a reasonable

officer that his conduct was unlawful in the situation.” Maresca v. Bernalillo Cty.,

804 F.3d 1301, 1308 (10th Cir. 2015) (internal quotation marks omitted). Only after


      4
        The district court noted this was the Mayfields’ only claim against Bethards
because it was the only one identified in the pretrial order. The Mayfields argue
Bethards also violated their Fourth Amendment rights by entering the property where
the dogs were found. But there is no dispute this claim was omitted from the pretrial
order. Because “claims . . . not included in the pretrial order are waived even if they
appeared in the complaint,” Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir.
2002), we agree the Mayfields’ only claim against Bethards was that killing Majka
was an unreasonable seizure.

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“the plaintiff meets this two-part test does a defendant then bear the traditional

burden of the movant for summary judgment—showing that there are no genuine

issues of material fact and that he or she is entitled to judgment as a matter of law.”

Gutteridge, 878 F.3d at 1238 (internal quotation marks omitted).

       The Fourth Amendment protects “[t]he right of the people to be secure in

their . . . effects[] against unreasonable . . . seizures.” U.S. Const. amend. IV. It is

clearly established that killing a pet dog is a “seizure” of its owner’s “effects.”

Mayfield, 826 F.3d at 1256, 1258-59. So to overcome Bethards’ qualified immunity

defense, the Mayfields had to show the seizure was unreasonable under clearly

established law.

       Generally speaking, a seizure of personal property is unreasonable unless it is

accompanied by a warrant. United States v. Place, 462 U.S. 696, 701 (1983). But

“because the ultimate touchstone of the Fourth Amendment is reasonableness, the

warrant requirement is subject to certain exceptions.” Brigham City v. Stuart,

547 U.S. 398, 403 (2006) (internal quotation marks omitted); see Mayfield, 826 F.3d

at 1256 (“[I]t is unlawful to seize a dog absent a warrant or circumstances justifying

an exception to the warrant requirement.”). And several circuits have recognized that

shooting a dog is a reasonable seizure when the dog poses an imminent threat to

officer safety and the use of force is unavoidable. See Brown v. Battle Creek Police

Dep’t, 844 F.3d 556, 566 (6th Cir. 2016); Robinson v. Pezzat, 818 F.3d 1, 7

(D.C. Cir. 2016); Viilo v. Eyre, 547 F.3d 707, 710 (7th Cir. 2008); see also Carroll v.

Cty. of Monroe, 712 F.3d 649, 651 (2d Cir. 2013) (“[C]ourts have held that, at least

                                            9
in some circumstances, it is reasonable for an officer to shoot a dog that he believes

poses a threat to his safety or the safety of the community.”); Brown v. Muhlenberg

Twp., 269 F.3d 205, 210-11 (3d Cir. 2001) (“[W]hen there is reason to believe the pet

poses an imminent danger . . . the state’s interest may even justify the extreme

intrusion occasioned by the destruction of the pet in the owner’s presence.”). So the

question is whether Bethards reasonably believed Majka posed an imminent threat

and shooting her was unavoidable.

      Among the materials supporting Bethards’ motion for summary judgment were

sworn declarations by himself and Clark. By their accounts, the officers were

dispatched to investigate a report of dogs attacking livestock. The livestock owner

told them three dogs had killed two of her goats and wounded other goats and sheep.

She described the dogs responsible for the attack, R. at 145, 149-50, and told the

officers some of “her friends and family were armed and already looking for the

dogs,” id. at 145, 150. Concerned about “an armed confrontation,” the officers

“sought to immediately capture the dogs.” Id. As they searched, the officers

“noticed neighboring homes with chickens, goats, and horses,” which made them

concerned the dogs “may attack the other animals in the area.” Id.

      Less than a mile away, near a city park, the officers found three dogs matching

the description they were given. The dogs were roaming free near what appeared to

be an abandoned house. There were no people on the property and the dogs were not

wearing collars or restrained in any way. The officers were concerned the “dogs



                                          10
posed a risk to other people and property,” id. at 146, 151, so they tried to corral the

dogs.

        As the officers approached the dogs, two showed no signs of aggression and

quickly ran away. The third dog, Majka, had what looked like dried blood on her

neck. As the officers walked toward her, Majka “quickly turned and charged” them.

Id. at 147, 151-52. Fearing she would attack, Bethards fired shots in her direction.

Majka ran to the other side of the house and the officers followed, still hoping to

corral her. As they approached Majka a second time, the officers saw what appeared

to be dried blood around her mouth. Majka “snarled, showed [her] teeth, barked at

[the officers] in an aggressive manner, and attacked [them] again.” Id. at 147, 152.

Bethards then shot Majka twice, killing her.

        The Mayfields offered no admissible evidence contradicting this account of the

shooting. Therefore, the uncontested evidence showed Bethards was tasked with

protecting the public from three dangerous dogs. He had reason to believe Majka

was one of these dogs when he encountered her unrestrained with her owners

nowhere to be found. She behaved aggressively and tried to attack him and Clark.

Under the circumstances, a reasonable officer could conclude Majka posed an

imminent threat and the use of deadly force was unavoidable. The Mayfields

therefore failed to show shooting Majka was unreasonable under clearly established

law. Because they did not make the showing required to defeat Bethards’ qualified

immunity defense, the district court properly granted summary judgment in his favor.



                                           11
      The Mayfields argue this conclusion conflicts with our holding in the prior

appeal. But the issue then was whether the allegations in the Mayfields’ complaint,

assuming they were true, could support a claim that Bethards violated their clearly

established Fourth Amendment rights. See Mayfield, 826 F.3d at 1258-59. We

concluded they satisfied this standard, but the Mayfields cannot overcome a motion

for summary judgment by resting on the allegations in their complaint, see Trevizo v.

Adams, 455 F.3d 1155, 1159 (10th Cir. 2006). Indeed we recognized in the prior

appeal that “Bethards could present evidence that might succeed at summary

judgment or trial.” Mayfield, 826 F.3d at 1258. That is what he did.

      V. Conclusion

      We affirm the district court’s order dismissing the Mayfields’ claims against

Clark, Boese, Hanchett, and the HCSD, as well as its order denying the Mayfields’

motion for summary judgment and granting summary judgment in favor of Bethards.


                                           Entered for the Court


                                           Bobby R. Baldock
                                           Circuit Judge




                                          12
