Walker v. Prince George's County, Md.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT WALKER; COURTNEY 

WALKER,

Plaintiffs-Appellants,

v.

PRINCE GEORGE’S COUNTY,  No. 08-1462

MARYLAND; JANET JACOBS, #907 in

her official capacity and individual

capacity,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Alexander Williams, Jr., District Judge.

(8:07-cv-00123-AW)

Argued: May 14, 2009

Decided: July 30, 2009

Before Sandra Day O’CONNOR, Associate Justice

(Retired), Supreme Court of the United States,

sitting by designation, WILKINSON, Circuit Judge, and

Joseph F. ANDERSON, Jr., United States District Judge

for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Associate Justice O’Connor

wrote the opinion, in which Judge Wilkinson and Judge

Anderson joined.

2 WALKER v. PRINCE GEORGE’S COUNTY

COUNSEL

Jason Christopher Crump, SMITH GRAHAM & CRUMP,

LLC, Largo, Maryland, for Appellants. Stephen Thibodeau,

PRINCE GEORGE’S COUNTY OFFICE OF LAW, Upper

Marlboro, Maryland, for Appellees.

OPINION

O’CONNOR, Associate Justice (Retired):

This is a case about a wolf named Dutchess. Concerned

that the wolf’s presence on residential property posed a risk

to the public, a Prince George’s County Animal Control Offi-

cer seized Dutchess and left word for her absent owners.

Those owners sued the officer and the county for monetary

damages, arguing that the seizure violated their civil rights.

The district court concluded that the officer was entitled to

qualified immunity and that the plaintiffs failed adequately to

plead a claim against the county. We agree and consequently

affirm the court’s judgment.

I

Because plaintiffs-appellants Robert and Courtney Walk-

er’s claims were rejected on summary judgment, we view the

factual evidence in the light most favorable to them. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

In February 2006, Robert Walker obtained an animal that

he believed was a dog. Walker and his wife, Courtney

Walker, named the animal Dutchess and had her vaccinated

for rabies. The veterinarian who performed the vaccination

determined that Dutchess was an Alaskan Malamute, a breed

of dog that looks like a husky. He gave the Walkers proof of

the vaccination, which identified Dutchess as a dog. The

WALKER v. PRINCE GEORGE’S COUNTY 3

Walkers used this report to obtain a "dog/ferret/cat license"

from Prince George’s County.

In July, Robert Walker and his sister, Antonia Payne, had

a heated confrontation in front of his home. Walker struck and

cracked the windshield of Payne’s car. Payne left and reported

the incident to the Prince George’s County Police Depart-

ment. The Walkers also left the house. Payne returned to the

Walkers’ home, and when an officer arrived at the scene, she

told the officer that Robert Walker kept a wolf as a pet. The

officer contacted the county’s Animal Management Division

to report Payne’s claim.

Defendant-Appellee Janet Jacobs, an Animal Control Offi-

cer, responded to the call. She observed that the animal was

in an unlocked 12-foot by 12-foot chain-link kennel near the

driveway and determined that it was a wolf based on its phys-

ical characteristics. She then called her supervisor, who told

her to impound the animal. Jacobs did so and left notice for

the Walkers, instructing them to contact the Animal Control

Office.

The next day, the Walkers filed a petition with the Animal

Control Commission, requesting Dutchess’ return. In Septem-

ber, the Commission held a hearing and found that Dutchess

was a wolf hybrid and that the Walkers consequently had vio-

lated Prince George’s County Code § 3-176, a provision that

prohibits the keeping of a wolf without a permit. The Walkers

did not appeal the Commission’s decision. Instead, they sued

Prince George’s County and Officer Jacobs. Seeking compen-

satory and punitive damages, the Walkers alleged in State

court civil trespass, violation of Articles 24 and 26 of the

Maryland Constitution, and violation of their Fourth Amend-

ment rights under 42 U.S.C. § 1983. The defendants removed

the action to the United States District Court for the District

of Maryland and sought summary judgment. Officer Jacobs

argued she was entitled to qualified immunity from suit, and

the County challenged the sufficiency of the Walkers’ plead-

4 WALKER v. PRINCE GEORGE’S COUNTY

ings. The Walkers filed a cross-motion for summary judg-

ment, arguing that they lawfully possessed Dutchess on their

property.

The district court granted the defendants’ motion and

denied appellants’. It concluded that Officer Jacobs’ actions

were reasonable under the Fourth Amendment. "Even assum-

ing that Jacob’s seizure was unreasonable," the court con-

cluded, "it was reasonable for [her] to believe that her actions

did not constitute a violation of Plaintiffs’ constitutional

rights." Walker v. Prince George’s County, Civ. Action No.

AW-07-123, slip op. at 7 n.5 (D. Md. Mar. 28, 2008). The

court also held that the Walkers had failed adequately to plead

a claim against the county under Monell v. New York City

Dept. of Social Servs., 436 U.S. 658 (1978), because they

"failed to make any allegations in their complaint in regards

to the existence of the County’s policy, custom, or practice."

Walker, Civ. Action No. AW-07-123, at 9. Lastly, the district

court rejected the Walkers’ contention that they lawfully pos-

sessed Dutchess. It concluded that the Walkers were not in

lawful possession of the animal under county law, and that

there was no evidence that they "ever intended to report their

possession of a wolf or dog hybrid to comply with Maryland

code." Id. at 13.

The Walkers appeal the grant of summary judgment in

appellees’ favor on their Fourth Amendment § 1983 claim

and also the denial of their motion for summary judgment on

that claim.* They also argue that they were entitled to sum-

mary judgment. We have jurisdiction to review the district

court’s opinion under 28 U.S.C. § 1291, and we review that

*Appellants also assert that their rights under Articles 24 and 26 of the

Maryland Constitution were violated. Yet they fail to present an argument

to that effect—indeed, even to discuss those provisions. "Judges are not

like pigs, hunting for truffles buried in briefs." United States v. Dunkel,

927 F.2d 955, 956 (7th Cir. 1991). We thus confine our analysis to their

claim under the Fourth Amendment of the U.S. Constitution.

WALKER v. PRINCE GEORGE’S COUNTY 5

opinion de novo, Hill v. Lockheed Martin Logistics Mgmt.,

354 F.3d 277, 283 (4th Cir. 2004) (en banc).

II

We affirm the judgment of the district court. Officer Jacobs

was entitled to qualified immunity, and appellants failed ade-

quately to plead a Monell claim against the County.

A

Qualified immunity "protects government officials ‘from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’" Pearson v.

Callahan, 555 U.S. __, 129 S. Ct. 808, 815 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). There is a

two-prong test for resolving qualified immunity claims. First,

a court "must decide whether the facts that a plaintiff has

alleged (see Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown (see

Rules 50, 56) make out a violation of a constitutional right."

Id. at 815-16. Second, if the plaintiff has satisfied this first

step, "the court must decide whether the right at issue was

‘clearly established’ at the time of [the] alleged misconduct."

Id. at 816. (citation omitted). Overruling Saucier v. Katz, 533

U.S. 194 (2001), the Supreme Court recently held that "courts

of appeals [are] permitted to exercise their sound discretion in

deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances

in [a] particular case." Pearson, 129 S. Ct at 818. Here, we

think "it is plain that [the] constitutional right" postulated by

the appellants "is not clearly established." Ibid. We thus

decline to invest "a substantial expenditure of scarce judicial

resources" by engaging in the "essentially academic exercise"

of determining whether that right exists at all. Id. at 811, 818.

Appellants argue that the seizure of an animal may be rea-

sonable for purposes of the Fourth Amendment only when an

6 WALKER v. PRINCE GEORGE’S COUNTY

official has first determined whether the animal is being law-

fully possessed. Their Fourth Amendment rights were vio-

lated, they contend, because they were not "giv[en] . . . time

to prove that they possessed a license for the animal." Appel-

lant Brief 20. They base this argument on the applicable ani-

mal control provisions. The Walkers concede, as they must,

that "both the State of Maryland and Prince George’s County

have enacted laws prohibiting the possession of wolf-

hybrids." Id. at 19. They stress, though, that "[e]ach statute

contains exceptions," and they argue that they met these

exceptions. Id. "It is the nature of these exceptions," they con-

tend, "that ma[de]" Officer Jacobs’ seizure of Dutchess "un-

reasonable, unjustified, and therefore illegal." Id. It is difficult

to imagine that the Fourth Amendment secures such a

right—that the lawfulness of the seizure of a dangerous ani-

mal turns not only on the risk it poses, but also on its registra-

tion status, a status that presumably has no bearing on the

reasons for seizure.

But as we have explained, we need not delay ourselves

with that inquiry because appellants’ purported Fourth

Amendment right is certainly not "clearly established." In two

short paragraphs in their brief, appellants contend that "Offi-

cer Jacobs knew or should have known" that the Fourth

Amendment obliged her to inquire into the lawfulness of the

Walkers’ possession of Dutchess before seizing the wolf. Id.

at 22. As authority, they cite only a single Prince George’s

County Ordinance, § 3-176. That provision "enables persons

to lawfully possess wild and exotic animals as long as they

have a license or permit to do so." Appellant Brief 21. It was

clear that their possession of Dutchess might have been law-

ful, their argument goes, and thus the Fourth Amendment

right to an inquiry on that issue before seizure of the animal

was well recognized.

This contention fails for at least two reasons. First, the ordi-

nance upon which appellants rely says nothing about the law-

ful procedure for the seizure of a wolf. That a wolf may

WALKER v. PRINCE GEORGE’S COUNTY 7

lawfully be possessed does not mean that the lawfulness of its

possession must be verified as a prerequisite to its seizure

when that seizure is necessary to protect the public safety or

otherwise. Appellants’ understanding of the ordinance is fur-

ther undermined by the fact that their construction stands in

direct conflict with other applicable provisions. See, e.g.,

Walker, Civ. Action No. AW-07-123, at 7 ("Jacobs was acting

pursuant to the County law prohibiting the keeping of a wolf

on one’s premise and pursuant to the protocols of the Animal

Control Office, wherein she has eighteen years of experi-

ence."); Md. CODE ANN. § 10-621(d)(1)(i-ii) (2008) (An

animal must immediately be seized when "there is probable

cause to believe that the possession of the animal is in viola-

tion of [law] or the animal poses a risk to the public health or

the public safety."). Second, even if the county ordinance

required such verification, that fact alone does not support the

existence of a Fourth Amendment right. See Virginia v.

Moore, 553 U.S. __, __, 128 S. Ct. 1598, 1602 (2008)

(explaining that the Fourth Amendment is not "a redundant

guarantee of whatever limits on search and seizure legisla-

tures might have enacted"); California v. Greenwood, 486

U.S. 35, 43 (1988) ("[W]hether or not a search is reasonable

within the meaning of the Fourth Amendment" has never "de-

pend[ed] on the law of the particular State in which the search

occurs.").

In short, appellants have failed to point us to any authority

that even suggests the existence of their purported Fourth

Amendment right. We have found none. To the contrary, we

recently sustained a far more dramatic seizure of animals that

were known to be properly licensed. Altman v. City of High

Point, 330 F.3d 194 (4th Cir. 1998) (holding that it was objec-

tively reasonable for police to shoot vicious dogs that were

properly licensed and tagged). We thus cannot say that "it

would have been apparent to a reasonable officer in [Officer

Jacobs’] positio[n] that her actions violated the Fourth

Amendment." Walker, Civ. Action No. AW-07-123, at 7 n.5.

Consequently, she is entitled to qualified immunity.

8 WALKER v. PRINCE GEORGE’S COUNTY

Appellants devote a substantial portion of their brief to

their creative argument that their possession of Dutchess was

lawful. They had a "de facto" license to possess the wolf, they

contend, which was preserved by a grandfathering provision

in the applicable ordinances. Appellant Brief 10-17. That

argument is irrelevant. Appellants are not here to seek the

return of Dutchess, but to pursue monetary damages for a pur-

ported Fourth Amendment violation. As we have explained,

Officer Jacobs cannot be held liable for failing to inquire into

the lawfulness of the possession of Dutchess; it was reason-

able for her to believe that the Fourth Amendment posed no

obstacle to her immediate seizure of the wolf. Thus, by defini-

tion it does not matter whether the Walkers had a permit to

possess Dutchess. Appellants’ challenge to the denial of their

motion for summary judgment is thus beside the point.

B

The Walkers failed adequately to plead a Monell claim

against the County. Under Monell, a municipality’s liability

"arises only where the constitutionally offensive actions of

employees are taken in furtherance of some municipal ‘policy

or custom.’ " Milligan v. City of Newport News, 743 F.2d 227,

229 (4th Cir. 1984). Thus, appellants were obliged to "iden-

tify a municipal ‘policy,’ or ‘custom’ that caused [their]

injury." Board of Comm’rs of Bryan Cty. v. Brown, 520 U.S.

397, 403 (1997) (quoting Monell v. City of New York Dep’t

of Soc. Servs., 436 U.S. 658, 694 (1978)). We agree with the

district court that appellants "failed to make any allegations in

their complaint in regards to the existence of the County’s

policy, custom, or practice, therefore failing to plead" a viable

Monell claim. Walker, Civ. Action No. AW-07-123, at 9 (cit-

ing Semple v. City of Moundsville, 195 F.3d 708, 712 (4th Cir.

1999)).

Appellants assert without elaboration that a County policy

to seize animals without inquiring whether their owners have

valid permits for those animals "can be inferred from Officer

WALKER v. PRINCE GEORGE’S COUNTY 9

Jacobs’ testimony" and that it should be "presumed that the

County never checks to see if owners lawfully possess wild

or exotic animals before seizing them." Appellant Brief 24.

But they fail to explain the basis of their inference or the justi-

fication for their presumption. At best, plaintiffs have alleged

that it was Officer Jacobs’ "common practice based on her

years of experience and training . . . to tell her supervisor

what she is observing and then he will tell her whether she

should take the animal." Id. at 21. Critically lacking is any

support for the proposition that Officer Jacobs’ common prac-

tice "implemented an official government policy or custom."

Walker, Civ. Action No. AW-07-123, at 9 (quotation marks

omitted).

As the Supreme Court has recently explained, "[t]hreadbare

recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice" to plead a claim.

Ashcroft v. Iqbal, 556 U.S. __, ___, 129 S. Ct. 1937, 1949

(2009). And "[w]e are not bound to accept as true a legal con-

clusion couched as a factual allegation." Id. at 1949-1950

(quotation marks omitted). Appellants’ allegations "do not

permit [us] to infer more than the mere possibility of miscon-

duct." Id. at 1950. This mere possibility is inadequate to sub-

ject the County to appellants’ suit for monetary damages.

III

For the reasons stated, the judgment of the district court is

hereby

AFFIRMED.