18-2639
Newsome v. Bogan

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
28th day of February, two thousand twenty.

Present:       ROSEMARY S. POOLER,
               PETER W. HALL,
               RICHARD J. SULLIVAN,
                           Circuit Judges.

_____________________________________________________

MICHAEL NEWSOME,

                              Plaintiff-Appellant,

                      v.                                                   18-2639

BOGAN, J. DRESSER, MARK PLYTER, BOB HOWARD,
HUGH COMPTON, HUMANE SOCIETY OF WAYNE COUNTY,

                        Defendants-Appellees.
_____________________________________________________

Appearing for Appellant:      Matthew B. Byrne, Gravel & Shea PC, Burlington, VT.

Appeal from the United States District Court for the Western District of New York (Geraci,
C.J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is REVERSED and
REMANDED in part and AFFIRMED in part.
        Appellant Michael Newsome appeals from the August 10, 2018 judgment of the United
States District Court for the Western District of New York (Geraci, C.J.), dismissing Newsome’s
amended complaint for failure to state a claim. We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.

       In its decision and order, the district court held that Newsome had not alleged a valid
Fourth Amendment claim based on the seizure and death of his dogs, nor had he alleged a
Fourteenth Amendment due process claim. Newsome v. Bogan, No. 16-cv-6451, 2018 WL
8967295, at *1 (W.D.N.Y. Aug. 9, 2018).

         To survive a motion to dismiss, a complaint must plead “enough facts to state a claim to
relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and we
need not accept as true legal conclusions couched as factual allegations. Id. at 555. “Even after
Twombly, though, we remain obligated to construe a pro se complaint liberally.” Harris v. Mills,
572 F.3d 66, 72 (2d Cir. 2009). This is particularly true “when the pro se plaintiff alleges that his
civil rights have been violated.” Ahlers v. Rabinowitz, 684 F.3d 53, 60 (2d Cir. 2012) (internal
quotation marks, citation, and alteration omitted).

        Newsome argues that his amended complaint states a valid Fourth Amendment claim
because his allegations suggest that the defendants unreasonably, and therefore illegally, seized
his pet dogs by removing them from his home and subsequently euthanizing them. We agree.

         We first address the issue of whether Newsome has properly alleged state action with
respect to the Humane Society and its employee Mark Plyter. State action requires “such a close
nexus between the state and the challenged action that the state is responsible for the specific
conduct of which the plaintiff complains.” Fabrikant v. French, 691 F.3d 193, 207 (2d Cir.
2012) (internal quotation marks, brackets, and citation omitted). When Fabrikant first came
before us, we held that the Ulster County Society for the Prevention of Cruelty to Animals
(“SPCA”) investigators were state actors “when they conducted the search of Fabrikant’s house
and the seizure of the dogs.” Id. at 203. When the case returned on remand, we further held that
“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,” and thus there was “a sufficiently close nexus between the State and the
challenged action” as needed for state action. Id. at 211 (internal quotation marks and citation
omitted). In Fabrikant, we reiterated that such a nexus could occur where “the state provides
significant encouragement to the entity, the entity is a willful participant in joint activity with the
state, [or] the entity has been delegated a public function by the state.” Id. at 207 (internal
quotation marks and citation omitted).

        Here, Newsome has alleged facts that are sufficient to plead state action by Plyter and the
Humane Society at this stage of the proceedings. For instance, Newsome alleged that Plyter had
participated in the seizure of the dogs from Newsome’s home, and when doing so, Plyter was
acting in concert with the state. See Fabrikant, 691 F.3d at 203. According to the complaint,
Plyter informed Newsome that the Lyons Police Department had instructed Plyter to consider the
dogs abandoned and not release them to Newsome. Newsome also alleged that the Humane



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Society euthanized his dogs. Based on these facts, Newsome has adequately pled state action as
to Plyter and the Humane Society.

        The unreasonable removal or killing of a companion animal constitutes an
unconstitutional seizure of personal property under the Fourth Amendment. See Carroll v.
County of Monroe, 712 F.3d 649, 651 (2d Cir. 2013); Fabrikant, 691 F.3d at 205, 215-16. “To
determine whether a seizure is unreasonable, a court must balance the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against the importance of the
governmental interest alleged to justify the intrusion and determine whether the totality of the
circumstances justified the particular sort of seizure.” Carroll, 712 F.3d at 651 (alterations,
internal quotation marks, and citation omitted).

        The amended complaint alleges facts supporting the conclusion that the removal of the
dogs from Newsome’s home was unreasonable. There is no question that the intrusion here was
severe “given the emotional attachment between a dog and an owner.” Id. The governmental
interest, on the other hand, appears to have been relatively weak. According to the amended
complaint, at least one of the dogs was enclosed in a crate and not obviously capable of
interfering with officer safety. There was also no apparent concern with destruction of evidence,
as the relevant evidence had been collected from Newsome’s home on a prior occasion. Plyter’s
after-the-fact statement that the dogs were aggressive and abandoned does not alter our
conclusion. The amended complaint states that Plyter initially told Newsome he could come
claim the dogs before calling back to tell him that the dogs were abandoned and aggressive. This
backtracking supports the inference that these reasons were pretextual.

       In any event, Newsome also has a valid Fourth Amendment claim based on the death of
the dogs. Because law enforcement brought the dogs to the Humane Society, the government
lacked an interest in protecting the public from dangerous dogs. The dogs were not wandering
loose on the streets and able to harm the public while secured at the Humane Society. In
addition, Newsome made multiple attempts to arrange for his dogs to be picked up by him or his
mother. Though the interest in preventing danger to the person or property of others can justify a
dog catcher’s taking a stray into custody, this does not mean that the state may destroy a
companion animal without justification.

       Taking all inferences in Newsome’s favor as we must, his allegations support a claim that
the dogs’ removal and death were unreasonable seizures. Therefore, dismissal of the complaint
was improper. Newsome has adequately pled a Fourth Amendment claim against all of the
defendants.

        We further conclude that Newsome has pled a valid retaliation claim against Bogan and
Plyter based on Newsome’s allegation that they seized the dogs in response to his refusal to go to
the police station for an interview. A retaliation claim requires showing that the plaintiff
“engaged in conduct that was constitutionally protected and that retaliation against the protected
conduct was a substantial or motivating factor in the defendant’s actions.” Blue v. Koren, 72 F.3d
1075, 1082 (2d Cir. 1995) (internal quotation marks and citation omitted). The plaintiff must
show “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse
action against the plaintiff, and (3) that there was a causal connection between the protected



                                                3
speech and the adverse action.” Dolan v. Connolly, 794 F.3d 290, 294 (2d Cir. 2015) (internal
quotation marks and citation omitted).

        Newsome has met all three requirements here. The Fourth Amendment protects the right
of an individual to “walk away from police questioning.” Burns v. Martuscello, 890 F.3d 77, 90
(2d Cir. 2018); see also United States v. Hooper, 935 F.2d 484, 490 (2d Cir. 1991). Thus,
Newsome’s refusal to go to the station for questioning was protected conduct. Next, the seizure
of his dogs was undoubtedly an adverse action. Finally, Newsome has pled a connection between
the protected conduct and the seizure. The amended complaint contains statements from Bogan
and Plyter indicating that the seizure only occurred because of Newsome’s conduct. For
example, the complaint states, “I called the Lyons Police department and spoke with officer
Bogan who stated that since I did not come to the station and answer qustions [sic] on beating up
your girlfriend my men seized your dogs.” App’x at 19. The complaint also states that Plyter told
Newsome during a phone call “to contact Lyons Police department you should have went to the
station to answer their questios [sic] on beating up your girl friend.” Id. at 18. The amended
complaint has sufficiently pled a retaliation claim against Bogan and Plyter.

        We do, however, affirm the district court’s conclusion that Newsome has failed to state a
Fourteenth Amendment due process claim. The district court dismissed Newsome’s Fourteenth
Amendment claim because “New York provides an adequate post-deprivation remedy in § 9 of
the New York Court of Claims Act.” Newsome, 2018 WL 8967295, at *4. An adequate post-
deprivation remedy can serve to bar a procedural due process claim, see Love v. Coughlin, 714
F.2d 207 (2d Cir. 1983); Morello v. James, 810 F.2d 344, 347-48 (2d Cir. 1987), if that claim is
based on “random, unauthorized acts by state employees.” Hellenic Am. Neighborhood Action
Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996). This rule does not, however, act
as an automatic bar to procedural due process claims based on established state procedures, as
distinguished from random acts by individual state employees. Hellenic Am., 101 F.3d at 880.
“[D]ecisions made by officials with final authority over significant matters, which contravene the
requirements of a written municipal code, can constitute established state procedure.” Burtnieks
v. City of New York, 716 F.2d 982, 988 (2d Cir. 1983).

        Newsome has not alleged any facts from which it could be concluded that the seizure of
his dogs was authorized by state procedure or a high-ranking official with final authority over
significant matters. State law does not authorize the defendants’ purported actions. See N.Y.
Agric. & Mkts. Law §§ 117(1)(d), 123. Nor has Newsome alleged that any defendant possesses
the requisite authority such that their violations of state law would constitute an established
procedure.

        Newsome cannot assert a substantive due process claim under the Fourteenth
Amendment, either. When a claim “fits comfortably under the coverage of the Fourth
Amendment . . . the Fourth Amendment, rather than substantive due process, should serve as the
guide for analyzing” the claim. Russo v. City of Bridgeport, 479 F.3d 196, 208-09 (2d Cir. 2007)
(internal quotation marks and citation omitted).

        We have considered the remainder of Newsome’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is REVERSED and REMANDED in



                                                4
part and AFFIRMED in part. We remand to the district court with instructions to allow
Newsome to file a third amended complaint for his Fourth Amendment and retaliation claims.1

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




1
 The Court thanks pro bono counsel for its services, which greatly aided the Court in its
deliberations.


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