                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                    September 4, 2009
                                  TENTH CIRCUIT
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court

 NANCY LEWIS and LADY BROWN
 DOG THE ENFORCER,

                Plaintiffs-Appellants,                    No. 09-2160
 v.                                                       (D. of N.M.)
 BURGER KING,                                (D.C. No. 6:09-CV-00305-JCH-RLP)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Nancy Lewis and her dog, Lady Brown Dog the Enforcer (Lady Brown

Dog), challenge the district court’s dismissal with prejudice of their civil rights

suit against Burger King. 1 Because Lewis and her dog were proceeding in forma




      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
           Lady Brown Dog appears as a co-plaintiff on Lewis’s complaint.
pauperis (IFP), the district court reviewed their complaint under 28 U.S.C.

§ 1915(e)(2) and concluded it failed to state a claim for relief.

      Having jurisdiction under 28 U.S.C. § 1291, we agree that Lady Brown

Dog, as an animal, lacks standing to sue, and AFFIRM the district court’s

dismissal of Lady Brown Dog’s claims with prejudice. Because we conclude the

district court should have afforded Lewis an opportunity to amend her complaint,

we VACATE the district court’s dismissal with prejudice of her claims and

REMAND for entry of an order dismissing Lewis’s complaint without prejudice.

                                   I. Background

      On January 14, 2009, Lewis and Lady Brown Dog were apparently asked to

leave a Burger King restaurant in Espanola, New Mexico. According to Lewis,

this was “on account of . . . Lady Brown Dog’s being a dog.” R., Doc. 1 at 1.

      Lewis then filed suit in federal district court alleging that Burger King had

violated their civil rights. 2 Lewis, proceeding pro se, 3 complained that Burger

King had violated her rights under the Americans with Disabilities Act of 1990

(ADA) by discriminating against her, as a disabled person, and, apparently,

against her dog as a service dog. Lewis sought “punitive and compensatory

damages commensurate with the . . . civil rights violation.” Id. Lewis’s



      2
          Burger King was not served with process and is not a party to this appeal.
      3
        We construe Lewis’s pro se pleadings liberally. See Price v. Philpot, 420
F.3d 1158, 1162 (10th Cir. 2005).

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complaint, however, did not describe her disability, nor the medical service or

assistance that Lady Brown Dog supposedly provides.

       Because Lewis requested to proceed IFP, the magistrate judge reviewed

her complaint under 28 U.S.C. § 1915(e)(2) to determine whether a reasoned,

nonfrivolous argument on the law and facts existed to support the action against

Burger King. See Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir.

2005). The magistrate judge issued a report recommending Lewis’s complaint be

dismissed for failure to state a claim for relief. Specifically, the magistrate judge

found Lewis (1) failed to allege that she is a qualified person under the ADA or

that she has a physical or mental impairment, (2) failed to identify the particular

assistance Lady Brown Dog provided her, and (3) was improperly seeking

monetary damages. The magistrate judge’s report also noted that because “Lewis

may be able to cure some or all the problems in her Complaint,” the dismissal

should be without prejudice. R., Doc. 5 at 5.

      Finally, the magistrate judge recommended Lady Brown Dog’s claims be

dismissed with prejudice as “neither the ADA nor any other civil rights statute

confer upon an animal the right to bring a civil action.” Id.

      Lewis objected to the magistrate judge’s recommended disposition. She

stated she suffers from several medical conditions which make her “unsteady on

her feet.” R., Doc. 6 at 2. Lewis further noted that she had trained Lady Brown




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Dog herself after rescuing the dog as a stray. According to Lewis, Lady Brown

Dog serves as her walking aid as well as a constant and protective companion.

      Lewis also took issue with the magistrate judge’s conclusion that Lady

Brown Dog lacked standing. Lewis, referencing news stories of animals

inheriting large sums of money upon the death of their human owners, maintained

it was unfair that “Lady Brown Dog can work her Pit Bull flanks off to earn her

keep, [but] she can’t object to being denied the right to practice her profession as

a service dog.” Id. As a result, Lewis stated it was time that courts permitted

“non-human creatures” to sue, at least via a human advocate. Id.

      A letter from a certified family nurse practitioner was also attached to

Lewis’s objection. The letter indicated Lewis suffers from “chronic sciatica,

diabetes, hypertension, and hyperlipidemia.” R., Doc. 6 at 5. According to the

nurse practioner, Lewis “is in a delicate condition and is often unsteady on her

feet.” Id. Apparently referencing Lady Brown Dog, the nurse practitioner stated

she believes “having the dog is good for Nancy as she has become her companion.

Nancy feels safer and more able to walk with the dog around, and the dog is

friendly. She makes an excellent companion dog.” Id.

      Lewis also submitted a letter from the Santa Fe, New Mexico, transit

department. This letter apparently grants her ADA paratransit eligibility,

permitting her to use the Santa Fe Ride Program—as well as similar programs




                                         -4-
nationwide—whenever her disability prevents her from using the regular bus

system. It further allows her to bring along her “service animal.” Id. at 6.

      The district court rejected Lewis’s objection and adopted the magistrate

judge’s proposed findings. The court also adopted the magistrate judge’s

recommended disposition, but dismissed Lewis’s ADA claims with prejudice

despite the report’s recommendation the dismissal be without prejudice.

      Lewis now brings this appeal.

                                    II. Analysis

      On appeal, Lewis argues the district court erred by failing to grant her an

opportunity to amend her complaint. She also contends that, with respect to Lady

Brown Dog, “the time has come for new precedent to spur Congress to give

standing to animals.” Aplt. Br. at 4.

      Section 1915(e)(2)(B)(ii) permits a court to dismiss an IFP action if it “fails

to state a claim on which relief may be granted.” Construing Lewis’s complaint

liberally, we review the district court’s dismissal de novo. Kay v. Bemis, 500

F.3d 1214, 1217–18 (10th Cir. 2007). “Dismissal of a pro se complaint for failure

to state a claim is proper only where it is obvious that the plaintiff cannot prevail

on the facts he has alleged and it would be futile to give him an opportunity to

amend.” Id. at 1217 (quotation omitted). “In determining whether a dismissal is

proper, we must accept the allegations of the complaint as true and construe th[e]




                                         -5-
allegations, and any reasonable inferences that might be drawn from them, in the

light most favorable to the plaintiff.” Id. (quotation omitted).

      To the extent Lewis’s objection to the magistrate judge’s report and

recommendation raised issues of fact regarding her disability and the assistance

Lady Brown Dog provides, we agree that “Lewis may be able to cure some or all

the problems in her Complaint.” See R., Doc. 5 at 5 (emphasis added). For this

reason, we cannot conclude it would have been futile to give Lewis an

opportunity to amend her complaint. Therefore, the district court erred in

dismissing Lewis’s claims with prejudice.

      We agree, however, with the district court that Lady Brown Dog, as a dog

and putative co-plaintiff, lacks standing to sue under the ADA (or any other civil

rights statute). See Cetacean Cmty. v. Bush, 386 F.3d 1169, 1179 (9th Cir. 2004)

(“If Congress and the President intended to take the extraordinary step of

authorizing animals as well as people and legal entities to sue, they could, and

should, have said so plainly.” (minor alteration and quotation omitted)); see also

Cass R. Sunstein, Standing for Animals (With Notes on Animal Rights), 47 UCLA

L. Rev. 1333, 1359 (2000) (“[T]he question of whether animals have standing

depends on the content of positive law. If Congress has not given standing to

animals, the issue is at an end.”). The district court, therefore, did not err in

dismissing Lady Brown Dog’s claims with prejudice.




                                           -6-
                               III. Conclusion

      For the foregoing reasons, we VACATE the district court’s dismissal with

prejudice of Lewis’s claims and REMAND for entry of an order dismissing

Lewis’s claims without prejudice. We further AFFIRM the district court’s

dismissal with prejudice of Lady Brown Dog’s claims.

                                    Entered for the Court

                                    Timothy M. Tymkovich
                                    Circuit Judge




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