Crooker v. Tessitore

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DENISE ANN CROOKER, :

Plaintiff, : CIVIL ACTION NO. 3:20-1695

v. : (JUDGE MANNION)

TESSITORE, et al., :

Defendants. :

MEMORANDUM

Pending before the court is defendants’ motion for summary judgment,

(Doc. 99), and Magistrate Judge Schwab’s report and recommendation on

defendants’ motion for summary judgment, (Doc. 116).1 Both the plaintiff,

(Doc. 120 & 121), and defendants, (Doc. 118 & 119) have filed objections to

Judge Schwab’s report and recommendation. Defendants filed a response

to plaintiff’s objections. (Doc. 122). The court will adopt Judge Schwab’s

report and recommendation for the reasons explained below.

1 In his correspondence, plaintiffs’ counsel misidentifies Magistrate

Judge Schwab as “Magistrate” Schwab. The title “magistrate” no longer

exists in the U.S. Courts, having been changed from “magistrate” to

“magistrate judge” in 1990. Judicial Improvements Act of 1990, 104 Stat.

5089, Pub. L. No. 101-650, §321 (1990) (“After the enactment of this Act,

each United States magistrate . . . shall be known as a United States

magistrate judge.”). Plaintiffs’ counsel is reminded to use the correct title in

the future, when referring to Judge Schwab.

I. Report and Recommendation of Judge Schwab

a. Standard of Review2

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. '636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to

the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.

Pa. 2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, Asatisfy

itself that there is no clear error on the face of the record in order to accept

the recommendation.@ Fed. R. Civ. P. 72(b), advisory committee notes; see

also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469

(M.D. Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.

1987) (explaining judges should give some review to every report and

recommendation)). Nevertheless, whether timely objections are made or not,

2 The factual background will not be repeated as Judge Schwab’s

report and recommendation contains an accurate background of the case.

the district court may accept, not accept, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge. 28 U.S.C.

'636(b)(1); Local Rule 72.31.

b. Discussion

Judge Schwab’s report and recommendation held that summary

judgment should be granted as it relates to probable cause for the search

warrant and seizure of the animals. (Doc. 116, p.32). Both parties object to

the report and recommendation of Judge Schwab. The defendants object to

the report and recommendation on the basis that the motion for summary

judgment was on all counts of the complaint. The defendants request that

this court now sua sponte decide if probable cause existed for Crooker’s

arrest. The defendants’ motion for summary judgment separated the motion

into three stages of probable cause for: the search warrant, the seizure of

the animals, and the arrest of Crooker. The defendants argue that if probable

cause existed at each stage, then the plaintiff’s complaint should be

dismissed. Plaintiff presents four objections to the report and

recommendation. First, plaintiff objects to the scope and mechanism of

analysis used. Plaintiff argues that Pennsylvania’s Rules of Criminal

Procedure require this court to constrain its analysis to the four corners of

the affidavit of probable cause used to apply for the search warrant. Second,

plaintiff objects that she was not at the property during the timeframe of

August 24, 2018 through September 9, 2018. Third, plaintiff objects to the

seizure of the rabbit because it was not mentioned in the affidavit of probable

cause. Lastly, plaintiff objects to the ownership of the animals contained

within the report and recommendation. Crooker says there is no evidence as

to the ownership being “theirs.”

Crooker’s complaint states four federal causes of action. First, a 42

U.S.C. §1985 conspiracy claim in violation of her Fourth, Fifth, and

Fourteenth Amendment rights under the United States Constitution. Counts

II and III claim through §1983 a violation of plaintiff’s Fourth, Fifth, and

Fourteenth Amendment rights. Count IV asserts a Monell claim pertaining

to PSP’s policies, patterns, and practices that led to an alleged violation of

plaintiff’s rights and a failure to supervise and train the officers involved.

Counts V – VII pertain to state law claims for malicious prosecution,

conversion, and replevin.

First, the court will separate the analysis of probable cause into three

sections: the search warrant, the seizure of the animals, and then the court

will separately address the arrest of Crooker. Judge Schwab addressed a

finding of probable cause as it pertains to the search warrant and the seizure

of the animals.

i. Probable Cause for the Search Warrant

Plaintiff’s objections pertain to the core findings of Judge Schwab’s

report and recommendation. As such, the court will utilize the objections to

review the core findings of the report and recommendation and frame the

discussion of the issues. Plaintiff has four objections to Judge Schwab’s

report and recommendation. First, Crooker challenges the “Scope and

Mechanism of Analysis Used.” As a preliminary matter, plaintiff argues in

numerous briefs that the Pennsylvania Rules of Criminal Procedure control.

Plaintiff contends that Judge Schwab’s analysis “erroneously” failed to

confine its analysis to the four-corners of the affidavit as Pennsylvania law

requires. (Doc. 121, p.1). Crooker writes, “had this been a suppression

motion in state criminal court,” but this is not a suppression motion in state

criminal court. The current question before the court pertains to §1983 and

a violation of the plaintiff’s Fourth Amendment rights. The Third Circuit has

explained:

A section 1983 plaintiff who challenges the validity of a

search warrant by asserting that law enforcement agents

submitted a false affidavit to the issuing judicial officer must

satisfy the two-part test developed by the Supreme Court in

Franks v. Delaware, 438 U.S. 154, 155–56, 98 S.Ct. 2674, 2676–

77, 57 L.Ed.2d 667 (1978). See Lippay v. Christos, 996 F.2d

1490, 1502, 1504 (3d Cir. 1993). This is true whether the alleged

falsehood is an affirmative misrepresentation or a material

omission. See, e.g., United States v. Frost, 999 F.2d 737, 742–

43 & n. 2 (3d Cir. 1993); Stewart v. Donges, 915 F.2d 572, 582

(10th Cir. 1990).

Under Franks and its progeny, the plaintiff must prove, by

a preponderance of the evidence, (1) that the affiant knowingly

and deliberately, or with a reckless disregard for the truth, made

false statements or omissions that create a falsehood in applying

for a warrant; and (2) that such statements or omissions are

material, or necessary, to the finding of probable cause. See

Franks, 438 U.S. at 171–72, 98 S.Ct. at 2684–85; Frost, 999 F.2d

at 742–43; Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994).

Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997). While the plaintiff

spent numerous pages, multiple briefs, and several filings arguing that the

Pennsylvania Rules of Criminal Procedure apply, she has never identified

any federal case law that indicates state criminal procedure must apply

when suing under §1983 for violations of her constitutional rights. Id.

(applying federal procedural law to plaintiff’s §1983 claims).

Under Franks, Crooker has the burden to prove “the affiant knowingly

and deliberately, or with a reckless disregard for the truth, made false

statements or omissions that create a falsehood in applying for a warrant;

and that such statements or omissions are material or necessary.” Franks,

438 U.S. at 171. As Judge Schwab explained in her report and

recommendation, Crooker does not allege that the officers knowingly and

deliberately or with a reckless disregard for the truth, made false statements

or omissions that created a falsehood in the application for the warrant.

Crooker argues that the statement “[a]ll of the dogs that were observed were

emaciated” was untrue as two of the dogs were, allegedly, according to her,

in ideal body condition and that the omission of the rabbit’s body condition

from the affidavit was a material omission. (Doc. 121). Plaintiff attempts to

utilize the reports by Veterinarian Thompson after the animals were seized

to argue that the animals were not “emaciated” and that it is allegedly

anatomically impossible for a dog to urinate blood.3 Officers are not

veterinarians. The Third Circuit has explained, “[t]he supporting affidavit

must be read in its entirety and in a commonsense and nontechnical

manner.” United States v. Conley, 4 F.3d 1200, 1206 (3d Cir. 1993).

Reading the affidavit of probable cause in its entirety and in a commonsense

and nontechnical manner reveals that the officers reasonably thought the

animals were significantly underweight, were living in conditions with feces,

and had trash strewn about their caged area. See Conley, 5.3d at 1206.

“[A]n affidavit ‘should not be judged as an entry in an essay contest, but,

3 Plaintiff on one hand argues that the review must be limited to the

four-corners of the affidavit for the search warrant, but then on the other

hand, utilizes the veterinarian reports, deposition testimony, and other items

to bolster her argument that there was not probable cause.

rather, must be judged by the facts it contains.’ Harris, 403 U.S. at 579, 91

S.Ct. at 2080 (quoting Spinelli, 393 U.S. at 438, 89 S.Ct. at 600 (Fortas, J.,

dissenting)). Affidavits ‘are normally drafted by nonlawyers in the midst and

haste of a criminal investigation. Technical requirements of elaborate

specificity ... have no proper place in this area.’ Ventresca, 380 U.S. at 108,

quoted with approval in Gates, 462 U.S. at 235, 103 S.Ct. at 2330–31.”

Conley, 4 F.3d at 1207–08.

Plaintiff first argues that the warrant should have separated the

probable cause analysis for each animal. Second, she argues that the

affidavit of probable cause for the search warrant was overly vague and a

“fishing expedition” in that it identified sections 5532, 5533, and 5534 of the

Pennsylvania Crimes Code with each section containing numerous

violations.

Turning to plaintiff’s first argument, the affidavit of probable cause

stated:

They observed multiple dogs in a fenced in area in the rear

of the residence, confined to chains in living conditions that were

less than habitable, such as feces everywhere, miscellaneous

household trash strewn about the property. All of the dogs that

were observed were emaciated, in particular one of the dogs was

severely emaciated. The dog was observed severely emaciated

was urinating blood while troopers were there. … The inside of

the residence was observed in deplorable conditions with more

animals observed inside the residence living in conditions that

were less than habitable.

(Doc. 100-4, p.15). Plaintiff contends that the courts should have gone

through the warrant and identified which violation each animal could have

been found to be in violation of and conducted a probable cause analysis

for each one. Plaintiff’s argument stems from no cited authority. As a §1983

claim, plaintiff meets neither requirement from Franks.

Turning to plaintiff’s second argument, the statutory sections cited by

the officer in the affidavit for probable cause “was nothing but a fishing

investigation in search of a pond.” (Doc. 121, p.13). As Judge Schwab

thoroughly addressed, the officers clearly indicated the conditions that were

present (trash, feces, deplorable conditions), observed the animals as being

“emaciated,” and specified the relevant crimes as Title 18 Sections 5532,

5533, 5534 of the Pennsylvania Code, which pertain to neglect of animals,

cruelty to animals, and aggravated cruelty to animals. Then, the warrant

described the place to be searched and the items to be seized in relation to

the listed crimes. (Doc. 116, p.19). Plaintiff’s arguments simply lack merit.

Plaintiff repeats the arguments she made before Judge Schwab by

complaining of the vague language of “deplorable conditions.” As Judge

Schwab explained, the supporting affidavit must be read in its entirety and

in a commonsense and nontechnical manner. Reading the affidavit in such

a manner, trash strewn about the property and feces everywhere echoes

the conditions raised in Tomey and Shickora. Additionally, officers further

described the property to be in deplorable condition. The animals were

confined to a small fenced in area with unavoidable trash and feces. There

was no food present for the animals, and they appeared “emaciated” or

underweight. Plaintiff’s attempt to claim “deplorable conditions” is a vague

term simply misses the mark and ignores the conditions that were present

when officers visited the property. Reading the supporting affidavit in its

entirety and in a commonsense and nontechnical manner provides more

than sufficient evidence that probable cause existed for the search warrant.

ii. Seizure of the Animals

Before addressing Crooker’s additional objections, the court will

address the seizure of the animals. During the execution of the search

warrant, officers noted the algae, mud, and feces in the area the dogs were

living. (Doc. 101, ¶31). The dog said to be urinating blood had sunken-in

eyes and was unable to walk on its own. (Doc. 101, ¶32). The photos taken

during the execution of the search warrant display the animals as they were

on the day they were seized. (Doc. 100-7). The photos showcase: the dogs

in caged areas or chained to a fence/tree; the area contained mud, feces,

and trash; dogs with visible rib cages; one dog with what appears to be skin

irritation or skin issues; and a rabbit with severely overgrown nails. (Doc.

100-7). Pursuant to the search warrant and after viewing the animals in

person and taking photographs, the officers seized seven dogs and one

rabbit. (Doc. 100-4). The court agrees with Judge Schwab’s report and

recommendation in that after finding probable cause existed for the search

warrant, then, based on the condition of the animals and the conditions

present on the property where the animals were staying, that the defendants

have shown undisputed facts that probable cause existed to seize the

animals. See Tomey 884 A.2d at 295-96.

Next, plaintiff objects to her whereabouts without presenting any

argument as to why this objection impacts or changes the outcome of Judge

Schwab’s decision. Judge Schwab’s report and recommendation pertains

to probable cause existing for the search warrant and seizure of the animals.

Plaintiff’s whereabouts impacts neither of those findings.

Then, plaintiff objects to the seizure of the rabbit. While the search

warrant does not specify “rabbit,” it does state the items to be seized include,

“Any and all animals to include alive, dead, born, or unborn that could be

victims of Title 18 Section 5532 Neglect of Animals, Section 5533 Cruelty to

Animal, or Section 5534 Aggravated Cruelty to Animals.” (Doc. 100-4, p.14).

The affidavit of probable cause stated both that there were additional

animals inside the home and explicitly authorized the seizure of all animals

located at the specific home and in the curtilage around the residence. (Doc.

100-4, p.14).

Finally, plaintiff objects to the ownership of the animals listed as

“theirs,” referring to hers and Mr. Peters. Plaintiff simply objects to the

categorization as “theirs” without any legal argument to the objection

contained within her accompanying brief.

Upon review of these issues, the court agrees with the sound

reasoning which led Judge Schwab to her conclusions. As such, the court

will adopt the report and recommendation pertaining to these issues as the

decision of the court.

II. Probable Cause to Arrest the Plaintiff

a. Factual Background

On October 19, 2018, Officer Tessitore filed two criminal complaints

and affidavits of probable cause charging both Peters and Crooker pursuant

to 18 Pa.C.S. §5534(a)(2), with Aggravated Cruelty to Animal (one count);

§5533(a) Cruelty to Animal (eight counts); and §5532(a) Neglect of Animal

(eight counts). (Doc. 100-4, p.21-34). At the hearing, Officer Tessitore

testified that he spoke with Peters and determined that Crooker also resided

at the residence, but she was not present on September 19, 2018. (Doc. 100,

p.15). Officer Tessitore also testified that Peters stated Crooker was co-

owner of the animals. (Doc. 104, p.10).

On January 18, 2019 a preliminary hearing was held. (Doc. 101, ¶50).

At the preliminary hearing, all charges against Crooker were dismissed.

(Doc. 104, p.13). On or about January 29, 2019, Plaintiff sought the return of

her six living dogs, one deceased dog, and her rabbit. In May of 2021, plaintiff

received two of her dogs and the remains of Kelly/Elizabeth. (Doc. 104,

p.13). At this point in time, plaintiff has not received her remaining animals.

The four dogs and one rabbit were fostered out by Papillon. (Doc. 104-4).

The individuals fostering the animals have declined to return the animals.

(Doc. 104-4).

b. Standard of Review

Summary judgment is appropriate if the pleadings, the discovery

[including, depositions, answers to interrogatories, and admissions on file]

and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp., 901

F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury

could find for the non-moving party, and is material if it will affect the outcome

of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986); Aetna Cas. & Sur. Co. v. Ericksen, 903 F. Supp.

836, 838 (M.D. Pa. 1995). At the summary judgment stage, the judge’s

function is not himself to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for trial. Anderson,

477 U.S. at 249; see also Marino v. Indus. Crating Co., 358 F.3d 241, 247

(3d Cir. 2004) (a court may not weigh the evidence or make credibility

determinations). Rather, the court must consider all evidence and inferences

drawn therefrom in the light most favorable to the non-moving party. Andreoli

v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).

To prevail on summary judgment, the moving party must affirmatively

identify those portions of the record which demonstrate the absence of a

genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving party

can discharge the burden by showing that on all the essential elements of its

case on which it bears the burden of proof at trial, no reasonable jury could

find for the non-moving party. In re Bressman, 327 F.3d 229, 238 (3d Cir.

2003); see also Celotex, 477 U.S. at 325. If the moving party meets this initial

burden, the non-moving party must do more than simply show that there is

some metaphysical doubt as to material facts, but must show sufficient

evidence to support a jury verdict in its favor. Boyle v. County of Allegheny,

139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986)). However, if the non-moving

party fails to make a showing sufficient to establish the existence of an

element essential to [the non-movant’s] case, and on which [the non-movant]

will bear the burden of proof at trial, Rule 56 mandates the entry of summary

judgment because such a failure necessarily renders all other facts

immaterial. Celotex Corp., 477 U.S. at 322-23; Jakimas v. Hoffman-La

Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).

c. Discussion

Defendants moved for summary judgment arguing that probable cause

existed for the arrest of plaintiff. In addressing false arrest and malicious

prosecution claims, the Third Circuit has explained:

[T]he constitutional violation question [] turns on whether

‘‘’a reasonable officer could have believed that probable cause

existed’ to arrest” the plaintiff at that time. Blaylock v. City of

Philadelphia, 504 F.3d 405, 411 (3d Cir. 2007) (quoting Hunter

v. Bryant, 502 U.S. 224, 228-29 (1991)). Moreover, because [the

officer] arrested [the defendant] on a valid warrant, the District

Court properly focused its probable cause analysis on whether

[the defendant] “‘knowingly and deliberately, or with a reckless

disregard for the truth, made false statements or omissions that

create[d] a falsehood in applying for a warrant.’’’ Sherwood v.

Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997). Therefore, we must

concentrate on two elements: first, whether “the officer, with at

least a reckless disregard for the truth, ‘made false statements

or omissions that create[d] a falsehood in applying for a warrant,’

and second, whether those assertions or omissions were

‘material, or necessary, to the finding of probable cause. [Wilson

v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000)] (quoting

Sherwood, 113 F.3d at 399).’” Dempsey v. Bucknell Univ., 834

F.3d 457, 468–69 (3d Cir. 2016).

Andrews v. Scuilli, 853 F.3d 690, 697 (3d Cir. 2017). When deciding a motion

for summary judgment, the court cannot:

[E]xclude from the probable cause analysis unfavorable

facts an officer otherwise would have been able to consider.

Instead, we view all such facts and assess whether any

reasonable jury could conclude that those facts, considered in

their totality in the light most favorable to the nonmoving party,

did not demonstrate a “fair probability” that a crime occurred.

Dempsey, 834 F.3d at 468. Plaintiff argues that the criminal complaint was

lacking information in the affidavit that she was involved in the criminal

conduct. Additionally, plaintiff attempts to separate the statements made

within the affidavit and attack them individually. However, the facts must be

considered in their totality. Id. Plaintiff also claims that additional facts

should have been considered in relation to the arrest warrant.

First, plaintiff claims one dog was identified as a score of five out of

nine on the Nestle Purina Body Condition System4, which she claims means

they were in ideal body condition. Second, Crooker claims that multiple

items listed in the report are not illegal, such as finding rocks in a dog’s

stomach, flea infestations, and Lyme disease. Next, plaintiff claims that a

failure to receive necessary vaccinations is not a cruelty violation, but

actually a different violation. Fourth, Crooker challenges the hearsay

statements of Papillon, who does not have a veterinary degree. Papillon

explained that the dogs were not being adequately fed and receiving enough

water. Fifth, plaintiff claims that “overfilled with feces” is not very clear. (Doc.

104). Then, Crooker claims the matted hair is subjective and does not

constitute cruelty. Lastly, the statement about the rabbit’s curled nails is

vague and conclusory because the nails were not shown to have grown into

the pads of the paws and were not causing pain.

Considering the affidavit in its totality, Dempsey, 834 F.3d at 468,

including plaintiff’s additional facts, the affidavit of probable cause from the

4 The Nestle Purina Body Condition System apparently suggests that

a score of one to three is too thin, four and five are ideal, and six to nine is

too heavy.

criminal complaint clearly demonstrates much more than a “fair probability”

that a crime has occurred.

Crooker also argues that she was not present at the property during

the time period when the officers visited the property and then executed the

search warrant on September 19 and September 20 of 2018. Title 18

Pa.C.S. §5532(a) explains:

A person commits an offense if the person fails to provide for the

basic needs of each animal to which the person has a duty of

care, whether belonging to himself or otherwise, including any of

the following:

(1) Necessary sustenance and potable water.

(2) Access to clean and sanitary shelter and protection from

the weather. The shelter must be sufficient to permit the

animal to retain body heat and keep the animal dry.

(3) Necessary veterinary care.

Additionally, plaintiff argues that she was not present at the property

during the time of the arrest and therefore could not be held to have a duty

of care. While plaintiff’s argument may not have been sufficient to the district

magisterial justice to prove guilt beyond a reasonable doubt, that is not the

burden here. Officers were informed by Peters, Crooker’s husband, that

Crooker lived at the property and the animals belonged to both of them.

(Doc. 100-4) (stating “The other owner of the animals was identified as the

DEFENDANT, Denise Anne CROOKER.”). Thus, officers reasonably

believed that Crooker was residing at the property and co-owned the

animals and did not act “with at least a reckless disregard for the truth” nor

“made false statements or omissions that create[d] a falsehood in applying

for a warrant.” Andrews, 853 F.3d at 697; Sherwood, 113 F.3d at 399.

In addition to the officers reasonably believing that Crooker both

resided at the property and that the animals were neglected based upon the

report of the veterinarian, there was clear probable cause for the arrest of

Crooker.

Plaintiff asserts what appears to be a Monell claim against PSP for

maintaining policies, patterns, and practices that led to the alleged violation

of plaintiff’s rights and a failure to supervise and train the officers involved.

The Third Circuit has explained the requirements for a Monell claim:

A municipality's failure to train police officers only gives rise to a

constitutional violation when that failure amounts to deliberate

indifference to the rights of persons with whom the police come

into contact. City of Canton, Ohio v. Harris, 489 U.S. 378, 388,

109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). We have held that a

failure to train, discipline or control can only form the basis for

section 1983 municipal liability if the plaintiff can show both

contemporaneous knowledge of the offending incident or

knowledge of a prior pattern of similar incidents and

circumstances under which the supervisor's actions or inaction

could be found to have communicated a message of approval to

the offending subordinate. See Bonenberger v. Plymouth

Township, 132 F.3d 20, 25 (3d Cir. 1997).

Montgomery v. De Simone, 159 F.3d 120, 126-27 (3d Cir. 1998). Because

the court found probable cause existed for the search warrant, seizure, and

arrest, plaintiff’s Monell claim fails as a matter of law. See Mulholland v.

Gov't Cty. of Berks, 706 F.3d 227, 238 n.15 (3d Cir. 2013) (noting “[i]t is

well-settled that, if there is no violation in the first place, there can be no

derivative municipal claim” based on Monell).

A section 1983 claim for deprivation of procedural due process

requires two elements. See Chambers ex rel. Chambers v. School Dist. of

Philadelphia Bd of Educ., 587 F.3d 176, 194 (3d Cir. 2009) (hereinafter

“Chambers”). The plaintiff must prove “‘(1) he was deprived of an individual

interest that is encompassed within the Fourteenth Amendment's protection

of ‘life, liberty, or property,’ and (2) the procedures available to him did not

provide due process of law.’” Id. (quoting Hill v. Borough of Kutztown, 455

F.3d 225, 234 (3d Cir. 2006)). A state “typically” should give an individual a

pre-deprivation hearing. Elsmere Park Club, L.P. v. Town of Elsmere, 542

F.3d 412, 417 (3d Cir. 2008) (citing Fuentes v. Shevin, 407 U.S. 67, 81

(1972)). However, “in special circumstances, a state may satisfy the

requirements of procedural due process merely by making available ‘some

meaningful means by which to assess the propriety of the State's action at

some time after the initial taking.’” Id. (quoting Parratt v. Taylor, 451 U.S.

527, 539 (1981), overruled on other grounds by Daniels v. Williams, 474

U.S. 327 (1986)).

Plaintiff has not stated a claim for procedural due process as it pertains

to the living animals. The complaint alleges, “Defendants [] have refused to

return Plaintiff’s animals upon the dismissal of charges against her, thus

depriving her of a constitutionally protected property interest.” (Doc. 1, ¶99).

While plaintiff has asserted an individual interest in her property, the living

animals, she has not plead that the procedures available to her did not

provide due process of law. Chambers, 587 F.3d at 194. Pennsylvania

Rules of Criminal Procedure provide for an individual to move for the return

of seized property that they are lawfully entitled to possess. Pa. R. Crim. P.

588(a). As plaintiff has not moved under the pertinent Pennsylvania Rule of

Criminal Procedure, she cannot claim a cognizable denial of due process.

Plaintiff only cites to an agreement with the defendants, but this is not a

denial of due process.

However, as it pertains to Kelly/Elizabeth, the dog that was

euthanized, the court will order supplemental briefing as contained in the

attached order.

III. Conclusion

Judge Schwab recommended granting summary judgment on Counts

III and V-VII. This court will adopt and grant summary judgment on Counts

I, III, IV, and V. The court will require additional briefing to address whether

the defendant, Camp Pampillon and Pocono Peak Veterinary Center, are

state actors for procedural due process purposes. As probable cause has

been found for the search, seizure, and arrest of plaintiff, Count II will be

limited to determine if plaintiff’s due process rights were violated with the

euthanasia of Kelly/Elizabeth without notice or a hearing. The remaining

state law claims will be addressed following the supplemental briefing.

An appropriate order will follow.

s/ Malachy E. Mannion_

MALACHY E. MANNION

United States District Judge

DATE: May 16, 2023

20-1695-02