Bilida v. McCleod

• Decision Date: 21 January 1999
• Docket Number: No. CIV. A. 96-621L.,CIV. A. 96-621L.
• Parties: Claire BILIDA, Plaintiff, v. Andrew McCLEOD, in his capacity as Director of the Department of Environmental Management, Officer Jeffrey S. Belmonte, and Officer Sheila DiSarro, Deputy Chief Thomas Greene, and State of Rhode Island, Defendants.
• Court: U.S. District Court — District of Rhode Island

41 F.Supp.2d 142

Claire BILIDA, Plaintiff, v. Andrew McCLEOD, in his capacity as Director of the Department of Environmental Management, Officer Jeffrey S. Belmonte, and Officer Sheila DiSarro, Deputy Chief Thomas Greene, and State of Rhode Island, Defendants.

No. CIV. A. 96-621L.

United States District Court, D. Rhode Island.

January 21, 1999.

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Linda S. MacDonald, MacDonald-Glenn & Associates, E. Greenwich, RI, John Michael Verdecchia, Providence, RI, for Plaintiff.

James R. Lee, Brenda A. Doyle, Attorney General's Office, Providence, RI, for Defendants.

MEMORANDUM AND ORDER

LAGUEUX, Chief Judge.

Claire Bilida ("plaintiff") rescued an orphaned racoon and raised the animal as her family's pet. Mia, the racoon, lived unremarkably for at least seven years in a wire cage attached to the back of plaintiff's house in Warwick, Rhode Island. That ended August 8, 1995 when the racoon was seized by officers of the Department of Environmental Management ("DEM"), Jeffrey Belmonte and Sheila DiSarro (the "DEM Officers" or "the Officers").

The Officers had been called to the house after a Warwick police officer responded to a silent security alarm and saw the caged racoon. Because an epidemic of rabies was then threatening Rhode Island, the DEM Officers told plaintiff that they would seize the animal. Plaintiff objected. She claims the Officers assaulted her and were excessively rough with the pet that she loved. She also claims that the Officers promised to keep the racoon alive. That day, the DEM summarily euthanized "Mia" and found that she was not infected by the rabies virus.

Plaintiff filed this action against Belmonte, DiSarro, Andrew McLeod, in his capacity as Director of DEM, DEM Deputy Chief Thomas Greene and the State of Rhode Island. In her Complaint, plaintiff alleges that defendants violated her right to privacy, violated her due process rights, and perpetrated an unreasonable search, all in contravention of the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution (Count I); that defendants violated her state right to privacy created by R.I. Gen. Laws § 9-1-28.1 (Count II); that defendants intentionally inflicted emotional distress upon her (Count III); that defendants negligently inflicted emotional distress upon her (Count IV); that defendants committed the tort of conversion (Count V); that defendants committed assault and battery upon her (Count VI); and that defendants are guilty of malicious prosecution and false arrest (Count VII). Plaintiff requests compensatory damages and, in Count VIII, punitive damages. The case is before this Court on defendants' motion for summary judgment.

This case turns on a security alarm and a state license. Plaintiff had the first and not the second. A silent alarm brought a Warwick police officer to plaintiff's home on August 8, 1995. That officer legally searched plaintiff's premises and saw the racoon in plain view, and the subsequent searches by the Warwick Animal Control Officer and the DEM Officers were incidental to the original search. A state license is necessary to keep a racoon for breeding or any other purpose. Because plaintiff did not have a license, the racoon was contraband. Although "Mia" was undoubtedly a cherished pet, she was not property under the law of Rhode Island. Therefore, plaintiff had no property interest in the racoon, and "Mia"'s seizure and death were not protected by the Fourth, Fifth or Fourteenth Amendments.

As discussed below, defendants' motion for summary judgment is granted as to Count I which contains all the federal claims. The remaining seven counts should be heard, if at all, in state court, and they are dismissed without prejudice pursuant to Fed.R.Civ.P. 12(b)(1).

I. Facts

On August 8, 1995, DEM seized the Bilida family pet from a cage where she had lived for the previous seven years. The pet was "Mia," a racoon that plaintiff had rescued as an infant and raised entirely in captivity. Plaintiff alleges that some DEM employees had previously given her advice about how to care for a baby racoon and had approved of her possession.

DEM Officers Belmonte and DiSarro only appeared at plaintiff's home on Dryden Boulevard, Warwick because a Warwick police officer had stumbled across the racoon earlier that morning. Warwick Police Officer Kenneth Brierly ("the Police Officer"), who is not a party to this litigation, responded to a silent alarm at the house and found a racoon rather than a burglar. "Mia" lived in a wire cage attached to the Bilida house, where she had a pool and where she played with family members.

Brierly called the City's Animal Control Officer ("ACO") Nora Legault. On hearing that ACO Legault would not arrive for a half-hour, Officer Brierly left the Bilida house for a time and later returned to meet Legault there. Legault, who is not a party to this litigation, came and met plaintiff at the premises and asked if she had a DEM permit to possess a racoon. It is illegal to possess a racoon without a DEM permit in Rhode Island. At the time, there was an epidemic of rabies that had spread along the Atlantic coast to and including Rhode Island. DEM had a policy that racoons were a high-risk "target species" and that any racoon that had contact with a human being should be captured and tested for rabies. The test for rabies includes killing the animal.

Plaintiff told Legault that she had a permit but could not produce one, so Legault returned to her office, called DEM and determined that plaintiff, in fact, did not have such a permit. As a result of Legault's call, DEM dispatched DiSarro and Belmonte to plaintiff's house at 11:30 a.m. Approximately two hours after Brierly discovered "Mia," the DEM Officers met plaintiff in her back yard. They told her that they would have to seize "Mia."

The parties dispute the actual events that occurred next. Plaintiff claims Belmonte grabbed her by the waist and pushed her away from Mia's cage. The DEM Officers allege that plaintiff climbed into the cage with "Mia" and tried to keep Belmonte from opening the door. Eventually, the Officers snared "Mia" and carried her away in a cage. Plaintiff claims Belmonte was overly rough with "Mia" and injured her as he snared her around the neck.

Once Belmonte and DiSarro had the racoon at the DEM barracks at Goddard Park, they contacted Deputy Chief Greene to ask him what they should do with "Mia." Greene called Rhode Island Public Health Veterinarian Susan Littlefield. On hearing that plaintiff fed "Mia" by hand, Littlefield told Greene that the state's rabies protocol called for the animal to be euthanized and tested for rabies. Greene related this information to Belmonte. Belmonte then confirmed that information with Littlefield directly. Thereafter, the racoon was euthanized and tested. "Mia" did not have rabies.

At plaintiff's home, DiSarro had issued plaintiff a summons for illegally possessing a racoon. On October 26, 1995, Belida pleaded nolo contendere to this charge. The plea was subsequently vacated. On April 22, 1996, a Superior Court judge filed the charge for one year on a not guilty plea.

II. Legal Standard for Motion for Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure sets forth the standard for ruling on summary judgment motions:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c). Therefore, the critical inquiry is whether a genuine issue of material fact exists. "Material facts are those `that might affect the outcome of the suit under the governing law.'" Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27, 31 (1st Cir.1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). "A dispute as to a material fact is genuine `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id.

On a motion for summary judgment, the Court must view all evidence and related inferences in the light most favorable to the nonmoving party. See Springfield Terminal Ry. Co. v. Canadian Pac. Ltd., 133 F.3d 103, 106 (1st Cir.1997). At the summary judgment stage, there is "no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, no room for the judge to superimpose his own ideas of probability and likelihood." Greenburg v. Puerto Rico Maritime Shipping Auth., 835 F.2d 932, 936 (1st Cir.1987). Similarly, "[s]ummary judgment is not appropriate merely because the facts offered by the moving party seem more plausible, or because the opponent is unlikely to prevail at trial." Gannon v. Narragansett Elec. Co., 777 F.Supp. 167, 169 (D.R.I.1991).

III. The Federal Constitutional Issues

Count I is based on 42 U.S.C. § 1983 and violations of plaintiff's federal constitutional rights. Plaintiff characterizes them as her rights to privacy, to freedom from unreasonable search and seizure and to due process. The first is specious. The second and third, although arguable, are unfounded because the racoon was found in plain view and because plaintiff had no property interest in the racoon.

A. No Federal Right To Privacy Was Violated

Plaintiff alleges a violation of her federal right to privacy, but neither party briefed this issue in its filings. Simply put, there is no federal constitutional right for an individual to keep police from knowing she has a racoon in the back yard. "The Supreme Court has inferred a federal constitutional right to privacy from various Bill of Rights protections and from the basic guarantee of fairness that the Due Process Clause of the Fourteenth Amendment provides. This right to...