42 U.S.C.A. Section 1983
- Created on 28 May 2010
- Last Updated on 17 March 2014
- Written by Fred M. Kray
- Hits: 3093
42 U.S.C.A. § 1983
There is no question that if you want to go on the offense in a Dangerous Dog case, that filing a damage claim under 42 U.S.C.A. § 1983 is a very good way to do so. There is also an attorney fee provision if you prevail (42 U.S.C.A § 1988) but it is discretionary.
In Florida, you might not even have to bother with Notice to the governmental entity under Florida's Sovereign Immunity statute.
I have had a few opportunities to file claims for Dangerous Dog owners under § 1983. Ultimately, I decided against doing so. Removal to Federal Court, practicing in Federal Court, and the amount of time spent versus the ultimate monetary damage result have caused me to take a pass.
This is a very complex area of law with specific pleading requirements. It is not for the faint of heart. Some of the reported opinions are 50 pages long. And although I have never handled one, I can imagine that there would be a very high level of zeal in the defense of such a case.
§ 1983 Complaints
Sammeth v. City of Seattle - § 1983 Complaint - Handled by one of the premier animal law lawyers in the country, Adam Karp, the case ended with Adam winning a partial summary judgment the order for which is here. He did most of his discovery through pleadings and took only a few depositions. A very good strategy and cost effective. A sliding fee scale seemed to make everyone happy.
Applicable Case Law
Minnesota Council of Dog Clubs v. City of Minneapolis, 540 N.W.2d 903 (Minn. Ct. App. 1996) - While dealing with attorney fees with respect to a successful § 1983 action, the case does confirm that the underlying § 1983 action regarding Minnesota Cruelty to Animals Act was successful.
Van Patten v. City of Binghamton, 137 F.Supp.2d 98 (U.S.D.C.N.D. N.Y. 2001) - Defendant's summary judgment denied on Plaintiff's § 1983 claim based on denial of due process. Defendants euthanized Plaintiff's dog Shadow without giving the owner any reasonable time for appeal. The problem was not with the ordinance, but with the way Defendant's executed it. The hearing officer's determination did not state the reasons supporting his euthanasia order. Nor was the hearing officer a municipal judge as required by the Ordinance. The court noted: "(Dogs) are property with personality. No two dogs are the same. Pets are capable of providing invaluable love, friendship, and companionship - things that other types of personal property simply cannot provide....Thus while we can buy another pet that may fill some of the voids caused by the loss of a pet, there is no such thing as a replacement." Id. at 104, 105.
Snead v. Society For the Prevention of Cruelty to Animals of Pennsylvania, 929 A.2d 1169 (ED P. 2007) - This was a successful § 1983 claim in which an owner whose dogs had been taken away from via an anti-cruelty statute, The dogs were taken as evidence and she was charged with dog fighting. The dog fighting cases were dropped but the owner was never told. Three days later she went to check on them and was told they had been euthanized (although they had not) Since the owner never went back to follow up because she thought the dogs were dead, they were subsequently euthanized. A jury trial was held on plaintiff's claims for negligence, conversion and § 1983 claim. The court affirmed the jury verdict in plaintiff's favor finding that Defendants had the owner's number but made no effort to notify her before the dog were euthanized. The court struck the punitive damages portion finding the defendants acts did not constitute reckless indifference.
Maldonado v. Municipality of Barceloneta, 2010 WL 184247 (USDC D.Puerto Rico 2010) - The mayor sent letters to residents of a housing complex that they were no longer able to keep their pets. Two days later city employees went through the public housing communities to pick up pets in possession of residents. There was no provision for hearings for owners to be heard. A § 1983 claim was filed by several families. The court denied Defendant's Motion for Summary Judgement, finding that there were still issues of fact as to whether due process was met since there were no post seizure hearings provided, whether seizure of the pets was unreasonable, supervisory liability under § 1983 for formulating policy or engaging in behavior that leads to a § 1983 violation, and whether officials acted with gross negligence.
Daskalea v. Washington Humane Society, 480 F.Supp 2d 16 (USDC DC 2007) - Class action suit with state law and a § 1983 claim. All pets had been seized under the anti-cruelty laws, impounded, sterilized all without the consent or knowledge of their owners.There was no opportunity given to the owners to contest the seizure. The court found the Humane Society acted under color of state law, that the Animal protection law violated due process by enforcing an unconstitutional statute. The statute failed to establish reasonable and articulate standards for the seizure of pets, failed to provide a due process hearing to contest seizure, set reasonable and articulable standards for the release of seized pets, prevent involuntary medical treatment, and prevent arbitrary fines. The statute in question allowed the Humane Society sole discretion in its decision to seize and animal, make the decision at to whether it was neglected, and to put a lien on the animal for the cost of its care. Nor is the owner able to provide instruction regarding nourishment and care of the animal while being held. The court allowed Plaintiff's claim for diminution of value to her dog and her claim for conversion.