United States District Court, S.D. Georgia, Savannah Division
ORDER AND REPORT AND RECOMMENDATION
CHRISTOPHER L. RAY, UNITED STATES MAGISTRATE JUDGE
se plaintiff Liberty Wallace alleges in her 42 U.S.C.
§ 1983 Complaint that a police officer took her dog and
may be attempting to euthanize it. Doc. 1 at 4-6. Plaintiff
paid her filing fee. Because defendant City of Savannah
Police Department is not a proper party to a 42 U.S.C. §
1983 complaint, any claims against it are frivolous and
should be DISMISSED. Plaintiff is
DIRECTED to file an amended complaint within
fourteen days from the date of this order rectifying the
below mentioned deficiencies or face a recommendation of
dismissal of her remaining claims. Plaintiff is also
DIRECTED to SHOW CAUSE as
to why her Complaint should not be dismissed for failure to
alleges that she was verbally attacked outside of her home by
an unidentified man who threatened to take her dog away. Doc.
1 at 3. Shortly thereafter, a city police officer
“broke into [her] house and took [her] dog.
Id. She states that, at a hearing where plaintiff
had an attorney, the dog was pleaded guilty in an attempt to
have the animal returned. Id. at 4. She has filed
suit against Chatham County Animal Service and the City of
Savannah Police Department. Id. at 1.
initial matter, Wallace has filed suit against the police
department itself. See doc. 1. However, the police
department is not an entity subject to suit under §
1983. Lovelace v. DeKalb Cent. Prob., 144 Fed.Appx.
793, 795 (11th Cir. 2005) (county police department not a
legal entity subject to suit under § 1983); Dean v.
Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (sheriff
and police departments are not considered legal entities
subject to suit), cited by Bunyon v. Burke Cnty.,
285 F.Supp.2d 1310, 1328 (S.D. Ga. 2003). To the extent
Wallace believes that the department is responsible as the
officer's employer, claims against local governments,
government officials, or supervisors brought pursuant to
§ 1983 cannot be based upon theories of respondeat
superior or vicarious liability. See Polk Cty. v.
Dodson, 454 U.S. 312, 325 (1981); Monell v.
Dep't of Soc. Servs. of New York, 436 U.S. 658, 691
(1978); Brown v. Crawford, 906 F.2d 667, 671 (11th
Cir. 1990). That is, a governmental entity cannot be held
liable just because it employs a tortfeasor. As a result, any
claims against the police department should be
to Plaintiff's substantive claims, she first alleges that
a police officer entered her home and took her animal. The
Fourth Amendment guarantees the right to privacy and security
in a person's home. See Wilson v. Layne, 526
U.S. 603, 610 (1999). As a result, absent an exception or
consent, a warrant is required to enter into a person's
home. Bates v. Harvey, 518 F.3d 1233, 1242-43 (11th
Cir. 2008) (citing Payton v. New York, 445 U.S. 573,
585-86 (1980)). However, it is unclear from the facts, as
pleaded, whether the police officer in plaintiff's
Complaint entered her home without either a warrant or
there is insufficient information in the Complaint to
determine if plaintiff states a claim arising from the loss
of her animal or the loss of due process protections. While
courts do recognize property rights in animals, see,
e.g., Reams v. Irvin, 561 F.3d 1258, 1264 (11th
Cir. 2009) (noting that individuals maintain property rights
to animals); see also Porter v. DiBlasio, 93 F.3d
301, 306 (7th Cir. 1996) (“[T]here can be no dispute
that an animal owner has a substantial interest in
maintaining his rights in a seized animal.”);
Cotton v. Ben Hill County, 208 F.Supp.3d 1353, 1359
(M.D. Ga. 2016) (pro se complaint for deprivation of property
involving seizure of cattle), plaintiff's facts fall
woefully short here. Her Complaint requests an injunction to
stop the euthanization of her dog, but is bereft of any
allegation suggesting that she was denied procedures to
challenge the taking of her animal, she was denied a hearing
on whether her animal is dangerous, or she will be denied a
hearing or chance to appeal any decision made regarding her
animal. Indeed, it appears from her Complaint that
the animal has not yet been euthanized. Doc. 1 at 4.
plaintiff's Complaint, as currently pleaded, implicates
abstention principles which would preclude this Court from
hearing Wallace's case. The Supreme Court's decision
in Younger v. Harris, 401 U.S. 37 (1971)
“precludes federal courts from interfering with pending
state judicial proceedings absent extraordinary
circumstances.” Fairfield Cmty. Clean Up Crew Inc
v. Hale, 735 Fed.Appx. 602, 604 (11th Cir. 2018)
(citations omitted). “Although Younger
involved a state criminal action, the Supreme Court has since
clarified that the ‘policies underlying
Younger are fully applicable to noncriminal judicial
proceedings when important state interests are
involved.'” Id. at 605 (quoting
Middlesex Cty. Ethics Comm. v. Garden State Bar
Ass'n, 457 U.S. 423, 423 (1982); see, e.g.,
Van Patten v. City of Binghamton, 137 F.Supp.2d 98,
102 (N.D.N.Y. 2001) (barring claims for declaratory or
injunctive relief regarding seizure of dog and process
afforded to dog owners during dangerous dog hearings on basis
of Younger). To decide whether Younger
requires abstention, the Court must first ask whether the
proceeding, “constitute[s] an ongoing state judicial
proceeding; second, [ ] implicate[s] important state
interests; and third, is there an adequate opportunity in the
state proceedings to raise constitutional
challenges[?]” Middlesex, 457 U.S. at 432
on the minimal information provided in the Complaint,
plaintiff's state proceeding appeared to be ongoing at
the time she filed it. Doc. 1 at 4 (noting that there was a
hearing the day before plaintiff filed her complaint). The
Court assumes without deciding that the state has an
important interest in regulating potentially dangerous dogs.
Likewise, although unclear, it appears that plaintiff may be
able to challenge the loss of her animal. See, e.g.,
id. at 4 (noting that she has an attorney who is filing
motions). Reading between the lines on plaintiff's
complaint, the case implicates abstention principles and may
be dismissed on those grounds alone.
Plaintiff had 90 days to serve her complaint or face a
recommendation of dismissal. Fed.R.Civ.P. 4(m). Plaintiff has
failed to provide that proof of service. However, because of
plaintiff's pro se status, and in view of
Fed.R.Civ.P. 15(a)'s admonition to give leave freely
“when justice so requires, ” the Court will give
Wallace another chance to explain the facts surrounding her
claims and to SHOW CAUSE as to why her
Complaint should not be dismissed for failure to serve.
Accordingly, plaintiff is DIRECTED to file
an amended complaint within fourteen days from the date of this
order rectifying the above mentioned deficiencies and
indicating whether the defendants have or will be served. She
must include a coherent “short and plain statement of
the claim showing” that she is entitled to the relief
sought. Fed.R.Civ.P. 8(a)(2). That means she must present the
Court with the factual allegations that support her claims.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (complaints must contain factual allegations
“sufficient to raise a right to relief above the
speculative level”). Mere conclusions that defendants
violated the law are not enough. See Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009).
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).
ORDERED and REPORTED AND RECOMMENDED,