Fabrikant v. French

Citation691 F.3d 193
Decision Date16 August 2012
Docket NumberDocket No. 10–3288–cv.
PartiesJody FABRIKANT, Plaintiff–Appellant, Russell A. Schindler, Plaintiff, v. Christine FRENCH, William Deridder, Hector L. Mejias, Jr., John Spinato, Catherine Palmer–Wemp, Walter Sasse, Christina Khuly, David Stark, Diane Stark, Ulster County Society for the Prevention of Cruelty to Animals, Bradley Knee, Avery Smith, Laraine Caliri, Defendants–Appellees, Thomas Nace, Defendant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

OPINION TEXT STARTS HERE

Matthew Michael (Andrew Beyer, Baruch Weiss, on the brief), Arnold & Porter LLP, Washington, DC, for PlaintiffAppellant.

Sue H.R. Adler (Dean S. Sommer, on the brief), Young Sommer Ward Ritzenberg Baker & Moore LLC, Albany, NY, for DefendantsAppellees.

Before: NEWMAN, STRAUB, and LYNCH, Circuit Judges.

GERARD E. LYNCH, Circuit Judge:

Plaintiff-appellant Jody Fabrikant appeals from a decision of the United States District Court for the Northern District of New York (David N. Hurd, Judge ) granting summary judgment for defendants and dismissing her federal constitutional and pendent state-law claims. Because we conclude that defendants are entitled to judgment as a matter of law on all the claims that Fabrikant presses on appeal, we affirm the grant of summary judgment, although our reasons differ in several respects from those articulated by the district court.

BACKGROUND
I. The SPCA Investigation and State Criminal Proceedings

The material facts of this case are not in dispute.1

Jody Fabrikant is a pet owner in upstate New York. Beginning in the early 1990s, she started taking in dogs to save them from euthanasia, medical ailments, or abandonment. In 2001, she moved to a rental property in Ulster County, New York, that provided more space for her four dogs. She soon adopted a fifth dog.

On the property was a barn that the landlord rented to a woman named Camille Fraracci, who used it to hold various animals, including an ox, a cow, calf, and sheep, as well as approximately thirty dogs “running around loose.” In the spring of 2001, defendant-appellee John Spinato, an investigator for defendant-appellee the Ulster County Society for the Prevention of Cruelty to Animals (SPCA), made several visits to the property and asked Fabrikant for her help in an ongoing investigation of Fraracci, and to gain entrance into the barn to inspect Fraracci's animals. At the time, Spinato observed that Fabrikant's pets were in “decent condition.”

One of Fraracci's dogs impregnated one of Fabrikant's dogs, which gave birth to a litter of nine puppies in the summer of 2001. Fabrikant made some efforts to find adoptive homes for the puppies, by placing advertisements in newspapers and on bulletin boards and by making calls to rescue agencies, including the SPCA. None of her attempts to find adoptive homes for the puppies succeeded.

Fraracci eventually learned of the SPCA's ongoing investigation into her treatment of her animals. According to Fabrikant, Fraracci threatened to harm her and her pets if Fabrikant continued to assist the SPCA. Out of fear of Fraracci, and because of “the way Mr. Spinato carried out his investigation,” Fabrikant told Spinato that she would not participate further as a witness in the SPCA's investigation of Fraracci. Spinato became “pissed off,” “sarcastic,” and “rude.” The SPCA eventually dropped its investigation of Fraracci.

In January 2002, Fabrikant and her pets moved to a new rental property away from Fraracci. The house and land provided more space for Fabrikant's dogs. Fabrikant continued to seek adoptive homes for the nine puppies. She also placed an advertisement seeking a dog walker to help her walk the dogs. A young woman named Allison Klock responded to the ad, visited Fabrikant's house, and took one of the dogs for a walk. When Klock visited the house, she observed that the puppies' snouts were taped shut, and she began to cry when she saw the dogs' living conditions. Klock told her mother that the dogs were being neglected. Her mother, in turn, called the New York State Police and the SPCA to report that the dogs were being abused.2

By this point, Fabrikant was living with fifteen dogs and a cat. She became overwhelmed trying to care for the animals, staying up “around the clock” to look after them and getting only “one or two hours of sleep a night.” She kept the nine puppies on an enclosed porch attached to the house. Because it was winter, she hired a man to help her insulate the porch using “cardboard, wood, plastic and newspaper.” Those materials covered the porch's windows. Fabrikant heated the porch with three or four portable space heaters. In an effort to keep the puppies from barking, Fabrikant admits that she occasionally wrapped masking tape around their snouts—the same tape used to “insulate” the porch. The dogs defecated on newspapers inside the house; Fabrikant kept garbage bags filled with the dogs' feces on the enclosed porch. Fabrikant continued to place ads and post flyers in search of adoptive homes for the puppies. Several interested persons responded and offered to adopt the dogs, but Fabrikant ultimately refused each offer, or imposed deal-breaking conditions on the adoptions—for example, requiring that before prospective adopters could take the dogs, they sign a “contract” providing, inter alia, that Fabrikant would have “full visitation rights” to come onto the adopters' property to visit the dogs whenever she wanted.

Several of the prospective adopters who visited Fabrikant's house alerted the SPCA about the conditions they observed there. Investigators visited Fabrikant's property three times in February 2002 to check on the animals. None of those visits resulted in any charges against Fabrikant. First, a New York State Trooper visited the house to investigate the complaint filed by the mother of Klock, the prospective dog walker. Fabrikant allowed the trooper into the house. The trooper found no “indication of violation of [New York] Agriculture & Markets Law,” and later told the SPCA that the animals “appeared in excellent condition.”

Second, Spinato, the SPCA investigator, made an unannounced visit to the house. Fabrikant allowed him in and permitted him to examine the animals. Although Spinato and Fabrikant discussed the dogs' overcrowding and Fabrikant's use of twine as collars for the animals, Spinato concluded “that a violation of the Agriculture and Markets Law sufficient enough so as to seize Ms. Fabrikant's fifteen animals was not established at that time.” Third, another SPCA investigator, defendant-appellee Walter Sasse, visited Fabrikant's house. Apart from overcrowding, Sasse found “no other real problems present.”

Eventually, however, after Spinato and Sasse received additional reports from visitors to Fabrikant's property, Sasse prepared a search warrant application for the house, based on witness statements from Klock and defendants-appellees Christina Khuly, Diane Stark, and David Stark, each of whom had visited Fabrikant's house and observed the conditions of the dogs. In their statements, those witnesses described the scene inside the house and on the enclosed porch. One witness, Diane Stark, described “garbage everywhere and newspapers covering nearly every part of the floor”; puppies being kept six to a pen and three to a cage; at least twenty-five [H]efty bags filled with dog feces”; dogs with “ropes/twine around their necks”; two dogs with mange, one described as “sickly”; a dog “chewing at an infection on its front foot”; conditions inside the house that “were the worst I have ever seen in my life—filth and a definite fire hazard”; and “no drinking water for the animals.” In addition, according to this witness, Fabrikant complained that she was ‘dreadfully overwhelmed’ and not able to properly care for the dogs,” and Fabrikant refused to take one sick dog to the veterinarian even though Fabrikant told her the dog's infected foot was “starting to smell.”

Other witness statements described a similar scene. Klock reported seeing a two-by-two-foot cage with “four puppies in it”; a dog that “wouldn't stand up” but “only crawled across the floor”; another dog that “had its mouth taped shut until I started crying so [Fabrikant] took it off”; and a dog with “twine on the neck ... choking the dog”—a practice Fabrikant attempted to justify by explaining that she “can't afford collars.”

Another witness, Khuly, described the enclosed porch attached to Fabrikant's house, where Fabrikant kept nine dogs, as having “an overwhelming smell of feces and urine.” Puppies were “crammed into two crates—three dogs to a crate.” The dogs had no leashes or collars. One dog, which this witness tried to take for a walk, “stood with its head down and his legs askance not knowing what to do,” behavior the witness understood to indicate that the dog “had not only been hit many times but was also not often outside of his crate.” Another dog “was so afraid [that] he bit” the hand of the witness's husband. Dogs had twine tied around their necks. Garbage bags filled with feces were “stock piled in a corner,” and there was a “mound” of dog food in the kitchen. Five dogs had “tape around their snouts,” which, according to the witness, Fabrikant attempted to explain by saying that one dog's barking “left her no other option than to shut him up with tape.” One dog's fur was falling out. Fabrikant cried, screamed, and complained that she needed help and couldn't take this anymore.” After cutting tape off a dog's snout, Fabrikant retaped it “really tight,” “much tighter than when” the witness “first came over that day.” Fabrikant also reportedly told the witness that one of the dogs had come to her in a dream and “had asked [Fabrikant] to let them go.” According to this witness, Fabrikant said that in the dream the dog asked her, [D]o I have to kill you?’

Witness David Stark described seeing “food (human food) all over the kitchen. Newspapers with urine...

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