396 F.3d 548 (4th Cir. 2005), 03-2092, Bogart v. Chapell

Docket Nº:03-2092.
Citation:396 F.3d 548
Party Name:Judy BOGART, Plaintiff-Appellant, v. Robbie CHAPELL, in his individual and official capacities; York County Humane Society, in its individual and official capacities; York County Sheriff's Department; York County Animal Control; Kathy Sowell; Arthur Moore; Donald Barnett; M.B. Mabry; Lester Terry, in their individual and official capacities; Bruce
Case Date:February 02, 2005
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 548

396 F.3d 548 (4th Cir. 2005)

Judy BOGART, Plaintiff-Appellant,


Robbie CHAPELL, in his individual and official capacities; York County Humane Society, in its individual and official capacities; York County Sheriff's Department; York County Animal Control; Kathy Sowell; Arthur Moore; Donald Barnett; M.B. Mabry; Lester Terry, in their individual and official capacities; Bruce M. Bryant, as Sheriff of York County; County Of York, Defendants-Appellees,


Della Martin; Darlene Steer, Defendants.

No. 03-2092.

United States Court of Appeals, Fourth Circuit

February 2, 2005

Argued: June 4, 2004

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[Copyrighted Material Omitted]

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Kevin Roger Eberle, Rosen, Rosen & Hagood, L.L.C., Charleston, South Carolina, for Appellant.

Andrew Frederick Lindemann, Davidson, Morrison & Lindemann, P.A., Columbia, South Carolina, for Appellees.


Mary Ann Hall, Charleston, South Carolina, for Appellant.

Terry B. Millar, Terry B. Millar, L.L.C., Rock Hill, South Carolina; R. Bryan Barnes, Thomas McRoy Shelley, III, Katherine B. Barroll, Rogers, Townsend And Thomas, P.C., Columbia, South Carolina, for Appellees.

Before Williams and King, Circuit Judges, and Louise W. Flanagan, United States District Judge for the Eastern District of North Carolina, sitting by designation.

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Affirmed by published opinion. Judge KING wrote the opinion, in which Judge FLANAGAN joined. Judge WILLIAMS wrote a dissenting opinion.


KING, Circuit Judge:

Judy Bogart appeals from the district court's award of summary judgment on her procedural due process claim, initiated under 42 U.S.C. § 1983, in connection with the euthanization of more than two hundred dogs and cats seized from her residential property. Bogart's appeal calls upon us to analyze and apply the decisions of the Supreme Court in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), and Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). In each of those cases, the Court evaluated the viability of a § 1983 claim that state employees, disregarding established state procedures, had deprived the plaintiff of property or liberty without a prior hearing, in contravention of the procedural aspects of the Fourteenth Amendment's Due Process Clause. The Court held in Parratt and Hudson that such a deprivation cannot be challenged under § 1983 if the employees' conduct was random and unauthorized--rendering it impracticable for the State to provide a predeprivation hearing--so long as the State has provided for an adequate postdeprivation remedy. Hudson, 468 U.S. at 533, 104 S.Ct. 3194; Parratt, 451 U.S. at 541, 101 S.Ct. 1908. The Court elaborated on this rule in Zinermon, explaining that the Parratt / Hudson doctrine is not applicable if the State had accorded its employees broad power and little guidance in effecting the deprivation. Zinermon, 494 U.S. at 135, 110 S.Ct. 975.

Relying on the Parratt / Hudson doctrine, the district court held that Bogart did not possess a viable § 1983 claim, because the destruction of her animals was in contravention of procedures spelled out in the South Carolina Code (and thus out of the State's control), and because the State's postdeprivation remedies were sufficient to compensate Bogart for her losses. See Bogart v. County of York, No. 01-CV-467, slip op. at 12-15 (D.S.C. July 11, 2003) (the "Summary Judgment Order"). Bogart maintains on appeal that her claim is saved by the Zinermon principle, in view of a locally adopted policy conferring discretion on an official to euthanize animals deemed to be sick or injured. As explained below, we reject Bogart's contention and affirm the district court.



Over several years, Bogart participated in animal rescue activities through various volunteer organizations in and around Rock Hill, South Carolina, including a group called Carolina Castaways. Bogart's efforts involved adopting dogs and cats from shelters where they otherwise may have been euthanized. Bogart kept the animals inside and outside her single-wide mobile home, which had a small fenced backyard. In late 1998 and throughout 1999, the York County Humane Society (the "YCHS") and its board co-chairman, local veterinarian Robbie Chappell,1 received complaints from other local veterinarians and members of Carolina Castaways regarding the number and condition of animals in Bogart's care, including personal pets and animals belonging

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to Carolina Castaways. Dr. Chappell met with Bogart at her home in late June 1999 to counsel her concerning the animals, but the complaints continued.

In early November 1999, after observing twice as many dogs in Bogart's yard as had been there in June, Dr. Chappell requested Deputy Brent Mabry of the York County Sheriff's Department to investigate the situation. Deputy Mabry drove by Bogart's property, at which time he smelled a strong animal odor and heard a large number of barking dogs. Bearing in mind Dr. Chappell's admonition that Bogart was unlikely to voluntarily permit examination of the animals, Mabry decided to request a search warrant from a local magistrate judge. On November 16, 1999, the magistrate judge issued a warrant for the search of Bogart's residential property and the seizure of any animals there that had been mistreated or housed improperly. Dr. Chappell planned to accompany Mabry in executing the search warrant. Mabry knew that Dr. Chappell intended to immediately euthanize at least some of the animals, but did not share that information with the judge.

Deputy Mabry also conferred about the search, which was scheduled for November 17, 1999, with Lester Terry, the supervisor of York County Animal Control. Officer Terry had been contacted as well by Dr. Chappell, who had advised Terry to "have a lot of trucks ready" based on the assumption that many of the animals would be seized. Dr. Chappell and Terry later disagreed over whether their first conversation about the impending seizure occurred as long as a week or just two days before the event. However, they agreed that Dr. Chappell estimated that Bogart had at least eighty to ninety animals on her premises. They also agreed that Dr. Chappell anticipated that at least some of the animals would be euthanized immediately, and others might be housed by the YCHS and the York County Animal Shelter (the "Shelter") if space was available for them. According to Officer Terry, Dr. Chappell called him again on the day of the seizure; when Terry informed Dr. Chappell that the Shelter was nearly at full capacity, Dr. Chappell said that all of the animals to be taken from Bogart's property were diseased and needed to be euthanized anyway. There is no dispute that Dr. Chappell, at that time, had not closely examined the animals.

The search and seizure at Bogart's mobile home was executed on November 17, 1999, as planned. The participants included Dr. Chappell and at least one of his employees, representatives of the YCHS, Deputy Mabry and other law enforcement officers, and Officer Terry and other animal control officers. At first, Deputy Mabry did not serve the search warrant on Bogart, because she allowed Mabry, Dr. Chappell, and those accompanying them to examine and even remove some of the approximately twenty-five dogs in her backyard. Thereafter, however, Bogart began to move dogs into her home through the back door. Mabry then confronted Bogart at the front door, serving her with the search warrant so that there could be an examination of the animals inside the home. According to Mabry, Bogart made an effort to reenter the home in an evasive manner, prompting Mabry and others to handcuff her and escort her to a waiting patrol car. Bogart was then arrested for ill treatment of the animals, in violation of section 47-1-40 of the South Carolina Code.2 The remainder of Bogart's dogs and

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cats were subsequently removed from inside the home.

In total, 82 dogs and 129 cats were seized from Bogart's property. All but two of the dogs and some of the cats had been euthanized by the following morning. At that time, Bogart arrived at the Shelter and requested some of her pets. Officer Terry called Dr. Chappell, who gave permission for Bogart to take the two surviving dogs and her choice of five of the remaining cats. Those cats not selected were killed later that morning.

Neither Dr. Chappell, who allegedly ordered the euthanizations, nor Officer Terry, who oversaw the procedures, would accept the ultimate responsibility for deciding the animals' fates. Dr. Chappell informed the press just after the raid on Bogart's property that her animals had been killed because of their poor health, as well as space limitations at the Shelter. However, it does not appear that all, or even many, of the more than two hundred doomed animals were closely examined by Dr. Chappell or any other veterinarian prior to euthanization. Rather, Dr. Chappell quickly inspected some of the animals as they were being removed from Bogart's property. Dr. Chappell conceded in this litigation that, if he had examined the dogs once they arrived at the Shelter, as many as fifteen to twenty of them might have been found healthy enough to save. Moreover, an expert for the Defendants opined that, if space at the Shelter was a problem, some of the animals could have remained on Bogart's property for at least another day without "much more jeopardy than they were already in" until room could be found for them elsewhere. In any event, it was not disputed that this was the first and only time that York County officials had immediately--and, one could find, indiscriminately--destroyed animals that had just been seized in...

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