                                                           NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 12-2288
                                   ___________

                               WENDY WILLARD,
                                        Appellant

                                         v.

            THE PENNSYLVANIA SOCIETY FOR THE PREVENTION
          OF CRUELTY TO ANIMALS; GEORGE BENGAL, in his official
    and individual capacity; TARA LOLLER, in her official and individual capacity
                              _______________________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                       D.C. Civil Action No. 2-11-cv-04543
                           (Honorable William H. Yohn)
                                 ______________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  March 4, 2013

              Before: SCIRICA, JORDAN, and ROTH, Circuit Judges.

                               (Filed: May 28, 2013)

                                _________________

                            OPINION OF THE COURT
                               _________________

SCIRICA, Circuit Judge.




                                         1
                                                 I.

       Plaintiff, Wendy Willard, owned twenty-three dogs, two of which lived in her

home while the other twenty-one dogs lived in a barn approximately 200 feet from her

home. On July 21, 2009, defendant Tara Loller, a humane officer for the Pennsylvania

Society for the Prevention of Cruelty to Animals (PSPCA),1 left her business card at

plaintiff‟s home in response to noise complaints from an unknown source. Loller

returned on July 27 with PSPCA officer Leonard Knox, and two Pennsylvania dog

wardens of the Bureau of Dog Law Enforcement (BDLE). The officers and dog wardens

observed plaintiff cleaning a 100-foot run outside of the barn. Loller swore out an

affidavit stating she observed plaintiff removing “large amounts of fecal material from

the outdoor kennel area. A strong odor of feces was also observed.” Based on this

affidavit, a Magistrate Judge issued a facially-valid warrant to the PSPCA officers to

search plaintiff‟s property, and to seize any evidence of animal cruelty violations. The

BDLE dog wardens also obtained a facially-valid warrant.

       Later that day, Loller, Knox, PSPCA officer George Bengal, the dog wardens and

two Philadelphia police officers executed the search warrants on plaintiff‟s property.

After searching the barn, Loller accused plaintiff of violating the Philadelphia law

limiting twelve animals to residences not licensed to operate as a kennel, and said she

would seize eleven of the dogs to bring plaintiff into compliance. Plaintiff avers she was

then coerced into signing surrender agreements for eleven dogs.




                                             2
       On August 10, 2009, plaintiff was cited for twenty-two violations of animal

cruelty for deprivation of clean and sanitary shelter and deprivation of veterinary care.

Plaintiff was also cited for two animal noise code violations which were dismissed. The

seized dogs had untreated eye conditions, untreated external parasites, and one had

untreated Lyme disease. In her appellate brief, plaintiff asserts the PSPCA adopted out

the dogs in January 2011.2 Also argued in her brief, but not alleged in the complaint,

plaintiff says she moved for the return of her dogs on December 4, 2009, during her

criminal prosecution for animal cruelty. Plaintiff does not provide the result of that

motion or say whether she received a hearing on it. Plaintiff argues the criminal

proceeding did not conclude until July 2011.3

       State court records show plaintiff‟s criminal prosecution for all twenty-two

citations concluded October 5, 2010, after plaintiff complied with a consent order.

Neither party has provided a copy of this consent order. State court dockets show entry

of plaintiff‟s omnibus motion seeking to suppress all evidence, dismiss all claims, and

return her dogs. The record also shows several hearings were scheduled in the criminal

case between December 2008 and October 2010.




1
  The PSPCA is charged with enforcing Pennsylvania‟s animal cruelty laws, and is a state
actor when functioning in that capacity. 18 Pa. Cons. Stat. Ann. § 5511. The PSPCA
and two of its humane officers, George Bengal and Tara Loller, are the defendants.
2
  One dog was euthanized three days after it was taken into PSPCA custody due to
complications from a surgical procedure.
3
  This fact was argued in plaintiff‟s appellate brief, but not alleged in her complaint.
There is no evidence the criminal prosecution continued beyond October 5, 2010 when
the state court docket showed the criminal complaint was withdrawn.
                                             3
                                              II.

       Plaintiff brings claims under 42 U.S.C. § 1983 for unconstitutional search and

seizure, deprivation of procedural due process and substantive due process, a Monell

claim for inadequate training and supervision, and seeks a declaratory judgment her

constitutional rights were violated. The district court granted defendants‟ motion to

dismiss for failure to state a claim on all claims.4

                                             III.5

       A complaint must contain “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “When there are well-pleaded

factual allegations, a court should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009). “[A] plaintiff‟s obligation to provide the „grounds‟ of his „entitle[ment] to relief‟

requires more than labels and conclusions, and a formulaic recitation of the elements of a




4
  The declaratory judgment claim requested identical relief to the other claims. The
District Court properly dismissed plaintiff‟s substantive due process claim because it
sought to redress the same harm alleged in her procedural due process claim, and was
barred by the “more-specific-provision” rule. Betts v. New Castle Youth Dev. Ctr., 621
F.3d 249, 260 (3d Cir. 2010). The District Court properly dismissed the Monnell claim
because plaintiff did not plead any PSPCA policy, custom or practice that led to the
alleged constitutional violations, and there is no respondeat superior liability in § 1983
actions. City of Canton v. Harris, 489 U.S. 378, 385 (1989).
5
  We have jurisdiction over this appeal under 28 U.S.C. § 1291. We review a district
court‟s order granting defendant‟s motion to dismiss de novo. McMullen v. Maple Shade
Twp., 643 F.3d 96, 98 (3d Cir. 2011). The district court‟s refusal to permit leave to amend
is reviewed for abuse of discretion. Great W. Mining & Mineral Co. v. Fox Rothschild
LLP, 615 F.3d 159, 163 (3d Cir. 2010) cert. denied, 131 S. Ct. 1798 (U.S. 2011).

                                               4
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(internal citation omitted).

                                                 A.

       The Fourth Amendment protects against unreasonable searches and seizures, and a

warrant supported by probable cause is typically required to search a home. Brighton

City v. Stuart, 547 U.S. 389, 403 (2006). The District Court held the search and seizure

were constitutional, even if the PSPCA warrant was invalid, because defendants were

assisting in the BDLE warrant execution. Plaintiff did not challenge the validity of the

BDLE warrant. Instead, plaintiff argues defendants cannot rely on the BDLE warrant

because of the “stalking horse” doctrine.

       The Eighth Circuit held police cannot conduct an investigative search based on a

parole officer‟s valid search warrant for parole violations “when it is nothing more than a

ruse for a police investigation.” United States v. McFarland, 116 F.3d 316, 318 (8th Cir.

1997). We rejected the “stalking horse” theory in United States v. Williams, finding “the

Supreme Court‟s more recent teaching in Knights precludes the viability of „stalking

horse‟ claims in this context. „Stalking horse‟ claims are necessarily premised on some

notion of impermissible purpose, but Knights found that such inquiries into the purpose

underlying a probationary search are themselves impermissible.” 417 F.3d 373, 377 (3d

Cir. 2005) (citing United States v. Knights, 534 U.S. 112, 122 (2001)). Accordingly,

where the search was conducted pursuant to a valid warrant, there is no Fourth

Amendment violation. Id.



                                             5
       Plaintiff contends, despite Williams, the “stalking horse” theory is viable in

contexts outside parole searches. Before Williams, we found the central stalking horse

“„question is whether the parole officer used her authority to help the police evade the

fourth amendment‟s warrant requirement.‟” Shea v. Smith, 966 F.2d 127, 132 (3d Cir.

1992) (quoting United States v. Harper, 928 F.2d 894, 897 (9th Cir. 1991) overruled on

other grounds by United States v. King, 687 F.3d 1189 (9th Cir. 2012)). Evidence of

collaboration between police and parole officers “is certainly not enough to invalidate a

parole search. Indeed, such collaboration is expected given the similar duties of parole

officers and police officers.” Williams, 417 F.3d at 377.

       In Williams we rejected the “stalking horse” theory in light of Supreme Court

precedent. Even if we found the theory persists in other contexts, plaintiff‟s allegations do

not support an illegal search under the “stalking horse” theory because there is no

allegation of improper collusion to evade the Fourth Amendment. Furthermore, it is

implausible defendants used the BDLE warrant as a ruse to evade the Fourth Amendment

because they already had a facially-valid warrant to search plaintiff‟s property and seize

evidence. Accordingly, even if the PSPCA warrant lacked probable cause, defendants

were legitimately on plaintiff‟s property to execute the BDLE‟s warrant.

                                             B.

       “In order to state a claim for failure to provide due process, a plaintiff must have

taken advantage of the processes that are available to him or her, unless those processes

are unavailable or patently inadequate.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.

2000) (“If there is a process on the books that appears to provide due process, the

                                              6
plaintiff cannot skip that process and use the federal courts as a means to get back what

he wants.”). “[A] state provides constitutionally adequate procedural due process when it

provides reasonable remedies to rectify a legal error by a local administrative body.”

DeBlasio v. Zoning Bd. of Adjustment for Twp. of W. Amwell, 53 F.3d 592, 597 (3d Cir.

1995).

         In Parratt v. Taylor, the Supreme Court held the process available in a state tort

claim for conversion was adequate to remedy plaintiff‟s property deprivation. 451 U.S.

527, 543 (1981). Accordingly, he could not state a § 1983 claim for due process

violations, because he failed to avail himself of the process available. Id.; see also

Hudson v. Palmer, 468 U.S. 517, 534-65 (1984) (finding the “several common-law

remedies available to respondent would have provided adequate compensation for his

property loss” even though he alleged the property was unique and had sentimental value

that could not be compensated). In Revell, we found no due process violation, because

the plaintiff failed to bring a state law tort claim or move for return of his property during

his criminal proceeding. Revell v. Port Auth. of N.Y., N.J., 598 F.3d 128, 139 (3d Cir.

2010).

         Here, plaintiff did not avail herself of Pennsylvania Rule of Criminal Procedure

588 or bring a tort claim for return of the dogs. Instead, she contends that a Rule 588

motion for return of her property would have been futile, because the PSPCA adopted out

the dogs in January 2011, and she could not have secured their return until after the




                                               7
criminal trial concluded.6 But plaintiff says she moved for return of the dogs on

December 4, 2009, and the dogs were not adopted until January 2011, leaving a gap of

more than 18 months before the dogs were permanently dispossessed. This does not

mean that the procedures were patently inadequate. Moreover, plaintiff did not bring a

tort claim for return of the dogs at any time, and does not argue the available tort

procedures are inadequate.7 Since plaintiff‟s complaint failed to allege she availed

herself of Rule 588 or state tort law or that the available procedures were inadequate, the

complaint does not state a claim for relief.

                                               C.

       When “a complaint is vulnerable to 12(b)(6) dismissal, a District Court must

permit a curative amendment, unless an amendment would be inequitable or futile.”

Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). But, plaintiff contends she should

have been granted leave to amend because the District Court dismissed her claim for her

failure to plead facts about the December 5 motion in her criminal case. Plaintiff does

not assert she could plead additional facts showing she did not receive a hearing on the

December motion in state court. Furthermore, as discussed above, plaintiff failed to avail

herself of any state tort remedies available, so she cannot state a claim for deprivation of


6
  Plaintiff did not allege any of the procedural facts she now argues in her appellate brief.
The complaint merely states she was denied any pre-deprivation or post-deprivation
procedure, which is conclusory and insufficient. Even if plaintiff amended her complaint
to include her omnibus motion to the state court and the date her dogs were adopted, she
still could not state claim for deprivation of due process.
7
  Although a beloved family pet is not replaceable, the Supreme Court rejected that the
sentimental value of unique property rendered state tort law inadequate process in
Hudson, 468 U.S. at 533.
                                               8
procedural due process even if she pled the facts of her December motion in an amended

complaint. Accordingly, amendment would be futile.

                                           IV

       For the forgoing reasons the District Court order granting defendants‟ motion to

dismiss is affirmed.




                                            9
