Maldonado v. Fontanes

United States Court of Appeals

For the First Circuit

No. 08-2211

MADELINE MALDONADO, individually and on behalf of her

minor children A.M.V., E.M.V., and C.M.V., ET AL.,

Plaintiffs, Appellees,

v.

SOL LUIS FONTANES, Mayor of Barceloneta, in his personal

and official capacities,

Defendant, Appellant,

MUNICIPALITY OF BARCELONETA, ET AL.,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. Garcia-Gregory, U.S. District Judge]

Before

Lynch, Chief Judge,

Farris* and Howard, Circuit Judges.

Luis F. Colon Gonzalez with whom Colon Gonzalez & Co., P.S.C.

was on brief for appellant.

Pedro R. Vázquez with whom María S. Kortright was on brief for

appellees.

June 4, 2009

*

Of the Ninth Circuit, sitting by designation.

LYNCH, Chief Judge. Residents of three public housing

complexes brought a civil rights suit under 42 U.S.C. § 1983

against the Mayor of Barceloneta, Puerto Rico, protesting the

precipitous seizures and cruel killings of their pet cats and dogs.

The twenty named plaintiff families assert violations of their

Fourth Amendment rights to be free from unreasonable seizures of

their "effects" and their Fourteenth Amendment procedural and

substantive due process rights.

The pets were taken in two successive raids, within ten

days of the Municipality of Barceloneta assuming control of the

public housing complexes from the Puerto Rico Public Housing

Administration ("PRPHA") on October 1, 2007. Plaintiffs allege

that before that transfer, they had been permitted to have their

pets. Only a few days before the raids, the residents were told to

surrender their pets on pain of being evicted from their homes.

They allege that after many of the pets were seized, the pets were

killed by slamming them into the sides of vans and by hurling the

survivors off a 50-foot-high bridge. Some plaintiffs eventually

found their family pets dead under the bridge.

The Mayor, in his personal capacity, moved to dismiss all

damages claims against him on grounds of qualified immunity. That

motion was denied; the Mayor has taken an interlocutory appeal.

This court denied the Mayor's motion to stay proceedings in the

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district court. We are informed that discovery is being completed

and that the case is nearly ready for trial.

We affirm the denial of the Mayor's motion for qualified

immunity on the Fourth Amendment and Fourteenth Amendment

procedural due process claims. Applying the Supreme Court's new

decision in Ashcroft v. Iqbal, No. 07-1015, ___ S. Ct. ___, 2009 WL

1361536 (May 18, 2009), we reverse the denial of qualified immunity

to the Mayor as to the plaintiffs' Fourteenth Amendment substantive

due process claims and order those claims dismissed. We also

revise our prior circuit law on the steps to follow in the

qualified immunity analysis in light of superceding Supreme Court

precedent.

I.

On interlocutory appeal from the denial of qualified

immunity through a motion to dismiss, "we must take all the factual

allegations in the complaint as true." Iqbal, 2009 WL 1361536, at

*13. Yet we need not accept as true legal conclusions from the

complaint or "'naked assertion[s]' devoid of 'further factual

enhancement.'" Id. at *12 (alteration in original) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).

The Municipality assumed operational control over three

public housing complexes in Barceloneta from the PRPHA on October

1, 2007. Between October 3 and 7, 2007, the Municipality delivered

notices to residents of those complexes that it would be enforcing

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a pet policy, which prohibited the residents from having cats or

dogs. The notices threatened eviction for those who did not

surrender their pets and included an English-language copy of the

pet policy, but not a Spanish-language version. The residents of

those complexes are predominantly Spanish speakers. Plaintiffs

allege that few speak, read, or write English. Before the

Municipality took control of the housing complexes, residents had

kept pets with the knowledge and consent of the housing complexes'

administrators, and there was no enforced prohibition on the

ownership of a cat or dog.

On October 8, 2007, without any further notice to the

residents, uniformed municipal employees and workers from Animal

Control Solutions, Inc. ("ACS"), a private contractor hired by the

Municipality, arrived at the three public housing complexes and

violently captured numerous pet cats and dogs. They went door-to-

door and demanded that the residents give up their pets or face

eviction. Many people complied. Some residents who were not home

at the time had their pets taken from inside their enclosed patios

and laundry areas. Municipal employees and ACS workers also

captured several pets that were in the common areas of the housing

project, even taking pets away from children. The Mayor and other

high ranking municipal officials were present that day at least at

one of the housing complexes while the animals were seized.

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Once the pets were captured, municipal employees and ACS

workers injected some of the animals with an unknown substance.

They also slammed the animals against the side of a van, causing

some witnesses to believe that their pets had been killed in their

presence. Those animals surviving the initial trauma were then

thrown to their deaths off a 50-foot-high bridge, known as El Paseo

de Indio ("The Indian Walk"). Some residents eventually found

their pets dead underneath the bridge.

Similar raids occurred two days later at each of the

three housing complexes, also resulting in the cruel killings of

the residents' animals. There is no claim that the defendant Mayor

was present at these raids. The residents protested. On October

17, 2007, the Municipality resigned its position as the

administrator of the public housing complexes in Barceloneta.

On October 19, 2007, the residents sued the Mayor and

other municipal officials under 42 U.S.C. § 1983, claiming

violations of their rights under the Fourth and Fourteenth

Amendments, as well as under other federal and state laws that are

not involved in this appeal. The complaint sought, inter alia,

punitive damages and compensatory damages of at least $1500 for the

value of each pet and $500,000 for the harm inflicted on each

plaintiff, as well as injunctive and declaratory relief.

On April 29, 2008, the Mayor moved to dismiss all the

damage claims against him, asserting qualified immunity. On July

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29, 2008, the district court issued an opinion and order denying

the Mayor qualified immunity on the plaintiffs' Fourth and

Fourteenth Amendment claims.1 This interlocutory appeal from the

district court's denial of qualified immunity followed.

II.

A. Appellate Jurisdiction over Denials of Qualified Immunity

An order rejecting a public official's qualified immunity

defense is immediately appealable as a "final" judgment within the

meaning of 28 U.S.C. § 1291 to the extent that it turns on an issue

of law. Iqbal, 2009 WL 1361536, at *8 ("[T]his court has been

careful to say that a district court's order rejecting qualified

immunity at the motion-to-dismiss stage of a proceeding is a 'final

decision' within the meaning of § 1291."); Behrens v. Pelletier,

516 U.S. 299, 306-07 (1996); Bergeron v. Cabral, 560 F.3d 1, 5 (1st

Cir. 2009). That is, "when the district court assumes a set of

facts favorable to the plaintiff and decides as a matter of law

that those facts do not form a satisfactory basis for a finding of

qualified immunity, an interlocutory appeal is available under the

collateral order doctrine." Bergeron, 560 F.3d at 6.

Here, we have jurisdiction to consider the Mayor's legal

argument that the plaintiffs have not stated cognizable

1

The Mayor also moved to dismiss for failure to state a

claim, which the district court granted as to a few claims, but

denied as to the Fourth and Fourteenth Amendment claims and pendent

state law claims. That order was not appealable and is not before

us.

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constitutional violations, accepting the facts alleged in the

complaint as true. We also have jurisdiction to decide whether the

constitutional rights that the Mayor allegedly violated were

clearly established at the time. But we do not at this stage in

the litigation have jurisdiction to decide whether any

constitutional violations actually occurred or to resolve any

factual disputes necessary to make that determination.

Assessing qualified immunity at the motion to dismiss

stage requires that we evaluate the sufficiency of the plaintiffs'

pleadings. Indeed, because "whether a particular complaint

sufficiently alleges a clearly established violation of law cannot

be decided in isolation from the facts pleaded," Iqbal, 2009 WL

1361536, at *9, we must scrutinize the plaintiffs' complaint to

determine whether it states a plausible entitlement to relief.

Two underlying principles guide our assessment of the

adequacy of the plaintiffs' pleadings. "First, the tenet that a

court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions. Threadbare

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

conclusory statements, do not suffice." Id. at *13 (citing

Twombly, 550 U.S. at 555). Such conclusory statements are "not

entitled to the assumption of truth." Id.

"Second, only a complaint that states a plausible claim

for relief survives a motion to dismiss." Id. (citing Twombly, 550

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U.S. at 556). This second principle recognizes that the court's

assessment of the pleadings is "context-specific," requiring "the

reviewing court to draw on its judicial experience and common

sense." Id. "[W]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the

complaint has alleged -- but it has not 'show[n]' -- 'that the

pleader is entitled to relief.'" Id. (second alteration in

original) (quoting Fed. R. Civ. P. 8(a)(2)).

B. The Qualified Immunity Doctrine

The qualified immunity doctrine provides defendant public

officials an immunity from suit and not a mere defense to

liability. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). For

this reason, immunity is to be resolved at the earliest possible

stage in litigation. Hunter v. Bryant, 502 U.S. 224, 227 (1991).

In some cases, the doctrine ensures that insubstantial claims

against government officials will be resolved before discovery.

Anderson v. Creighton, 483 U.S. 635, 640, n.2 (1987). Indeed,

"[t]he basic thrust of the qualified immunity doctrine is to free

officials from the concerns of litigation, including 'avoidance of

disruptive discovery.'" Iqbal, 2009 WL 1361536, at *16 (quoting

Siegert v. Gilley, 500 U.S. 226, 236 (1991) (Kennedy, J.,

concurring in judgment)).

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1. Qualified Immunity: A Two-Step Analysis

The Supreme Court's most recent rulings on qualified

immunity provide clarification on several points and require some

revision of the nomenclature and steps this circuit has previously

used.

In Pearson v. Callahan, 129 S. Ct. 808 (2009), the Court

reiterated that the qualified immunity inquiry is a two-part test.

A court must decide: (1) whether the facts alleged or shown by the

plaintiff make out a violation of a constitutional right; and (2)

if so, whether the right was "clearly established" at the time of

the defendant's alleged violation. Id. at 815-16. The Supreme

Court has often described the analysis as a two-step test. See,

e.g., id. at 815; Scott v. Harris, 550 U.S. 372, 377 (2007);

Brosseau v. Haugen, 543 U.S. 194, 195 (2004) (per curiam); Chavez

v. Martinez, 538 U.S. 760, 766 (2003); Saucier v. Katz, 533 U.S.

194, 201 (2001), overruled in part by Pearson, 129 S. Ct. 808.

It is clear from the Supreme Court's description of the

second, "clearly established" step of the qualified immunity

analysis that the second step, in turn, has two aspects. One

aspect of the analysis focuses on the clarity of the law at the

time of the alleged civil rights violation. To overcome qualified

immunity, "[t]he contours of the right must be sufficiently clear

that a reasonable official would understand that what he is doing

violates that right." Anderson, 483 U.S. at 640. The other aspect

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focuses more concretely on the facts of the particular case and

whether a reasonable defendant would have understood that his

conduct violated the plaintiffs' constitutional rights. Indeed,

"[i]t is important to emphasize that this inquiry 'must be

undertaken in light of the specific context of the case, not as a

broad general proposition.'" Brosseau, 543 U.S. at 198 (quoting

Saucier, 533 U.S. at 201). Cognizant of both the contours of the

allegedly infringed right and the particular facts of the case,

"[t]he relevant, dispositive inquiry in determining whether a right

is clearly established is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted." Id. at 199 (quoting Saucier, 533 U.S. at 202)

(internal quotation marks omitted). That is, the salient question

is whether the state of the law at the time of the alleged

violation gave the defendant fair warning that his particular

conduct was unconstitutional. See Hope v. Pelzer, 536 U.S. 730,

741 (2002).

In administering the Court's test, this circuit has

tended to list separately the two sub-parts of the "clearly

established" prong along with the first prong and, as a result, has

articulated the qualified immunity test as a three-part test. See,

e.g., Bergeron, 560 F.3d at 7 & n.2; Estate of Bennett v.

Wainwright, 548 F.3d 155, 167 (1st Cir. 2008); Parker v. Gerrish,

547 F.3d 1, 12 (1st Cir. 2008); Philip v. Cronin, 537 F.3d 26, 34

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(1st Cir. 2008). While the substance of our three-part test has

been faithful to the substance of the Court's two-part test, we owe

fidelity to the Court's articulation of the test as well. And so

we now adopt the Court's two-part test and abandon our previous

usage of a three-step analysis.

This we can do without invoking an en banc court given

the intervention of the Supreme Court's decision in Pearson. See

Wallace v. Reno, 194 F.3d 279, 283 (1st Cir. 1999) ("When a panel

of this circuit has decided an issue, another panel will ordinarily

not revisit that issue; but, of course, this limitation does not

apply where an intervening decision of the Supreme Court overturns

or undermines our earlier decision.").

2. It is Permissible to Avoid the First Step of the

Qualified Immunity Analysis

Pearson also held that while it is frequently appropriate

for courts to answer each step in turn, it is not mandatory that

courts follow the two-step analysis sequentially. Courts have

discretion to decide whether, on the facts of a particular case, it

is worthwhile to address first whether the facts alleged make out

a violation of a constitutional right.

As Pearson explained, the primary motivation behind

Saucier's sequential two-step rule was to promote the development

of constitutional precedent. 129 S. Ct. at 816. Of course, there

may be instances where "a discussion of why the relevant facts do

not violate clearly established law . . . make[s] it apparent that

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in fact the relevant facts do not make out a constitutional

violation at all," id. at 818, making it worthwhile to address the

first prong of the qualified immunity analysis.

But in some cases, discussion of the first prong of the

qualified immunity analysis will result "in a substantial

expenditure of scarce judicial resources on difficult questions

that have no effect on the outcome of the case." Id. This

expenditure of resources by the courts and the parties is difficult

to justify in cases where the constitutional questions presented

are heavily fact-bound, minimizing their precedential value. Id.

at 819.

Further, the utility of bypassing the first prong is

particularly apparent "[w]hen qualified immunity is asserted at the

pleading stage [because] the precise factual basis for the

plaintiff's claim or claims may be hard to identify." Id. Indeed,

as this circuit has held, and Pearson recognized, where the answer

to the first prong of the immunity question may depend on the

further development of the facts, it may be wise to avoid the first

step. See id. (citing Buchanan v. Maine, 469 F.3d 158, 168 (1st

Cir. 2006)). The Mayor here has chosen not to wait, but to press

the Fourth Amendment and Fourteenth Amendment issues at the

pleadings stage, and then to appeal, in part, the denial of

qualified immunity on the pleadings.

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III.

A. Application of Qualified Immunity Analysis to the Fourth

Amendment Claim

The Mayor argues that the complaint fails to state a

cognizable constitutional claim under the Fourth Amendment because

that Amendment does not provide protection to individuals in their

ownership of household pets under these circumstances. The first

part of the Mayor's argument is essentially that taking plaintiffs'

assertions in the complaint as true, the complaint still fails to

state a Fourth Amendment claim.

An individual's interest in his pet cat or dog does fall

within the Fourth Amendment's prohibition of unreasonable seizures,

though we have not addressed the question before. As the Fourth

Circuit's decision in Altman v. City of High Point, 330 F.3d 194

(4th Cir. 2003), establishes, privately owned pet dogs do qualify

as property, such that pets are "effects" under the seizure clause

of the Fourth Amendment.2 Id. at 202-04. We rely on and do not

repeat Judge Luttig's scholarly analysis that dogs are "effects"

for purposes of being secure from unreasonable seizure under the

Fourth Amendment.

2

The Fourth Amendment provides, in relevant part: "The

right of the people to be secure in their persons, houses, papers

and effects, against unreasonable searches and seizures, shall not

be violated." U.S. Const. amend. IV. The Fourth Amendment's

prohibition on unreasonable searches and seizures applies to Puerto

Rico and to the states through the Fourteenth Amendment. See Mapp

v. Ohio, 367 U.S. 643, 655 (1961); Martínez-Rivera v. Sánchez

Ramos, 498 F.3d 3, 7 n.4 (1st Cir. 2007).

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The killing of a person's pet dog or cat by the

government without the person's consent is also a seizure within

the meaning of the Fourth Amendment. Three other circuits had

announced this conclusion well before the violations alleged here.

See Brown v. Muhlenberg Twp., 269 F.3d 205, 210 (3d Cir. 2001);

Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994), overruled on other

grounds by Robinson v. Solano County, 278 F.3d 1007 (9th Cir.

2002); Lesher v. Reed, 12 F.3d 148, 150-51 (8th Cir. 1994). Since

then, the Seventh Circuit has also held that the killing of a

companion dog is a Fourth Amendment seizure. See Viilo v. Eyre,

547 F.3d 707, 710 (7th Cir. 2008). No circuit court has held

otherwise.

We reject the Mayor's argument that this law was not

clearly established because this court had not earlier addressed

the questions of effects and seizure. Against the widespread

acceptance of these points in the federal circuit courts, the

Mayor's argument fails. These are principles of law, and the law

was sufficiently recognized by courts to be clearly established.

See Wilson v. Layne, 526 U.S. 603, 617 (1999) (holding that a

constitutional right is clearly established if "a consensus of

persuasive authority" exists "such that a reasonable officer could

not have believed that his actions were lawful"); Bergeron, 560

F.3d at 11-12.

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The Mayor's underlying argument as to the Fourth

Amendment qualified immunity issue is that, as a matter of law, a

court should now hold that a reasonable official in the Mayor's

position would not have thought he was violating the plaintiffs'

Fourth Amendment rights, under the second aspect of the "clearly

established" second prong. He reasons that there is a diminished

expectation of privacy in pet ownership, and that diminished

interest routinely must give way to public safety and health

concerns. The Mayor argues that the plaintiffs' privacy interest

in their pets was particularly diminished here because the

residents had "voluntarily subscribed" to the pet policy through

their lease agreements. Given the state's interest in collecting

stray animals, the plaintiffs' "voluntary" subscription to the pet

policy, and the Municipality's decision to collect strays and

accept non-conforming pets only with advance notice, the Mayor

argues that he could reasonably believe that his actions did not

violate the Fourth Amendment.

The Mayor's version of what happened is, however,

inconsistent with the factual allegations of the complaint, which

we must take as true. Starting with the pet policy, the inferences

from the complaint are that the terms of the pet policy were not

part of plaintiffs' leases, and were imposed after the fact and

without the residents' consent. A reasonable inference from the

complaint is that the pet policy was new to the residents of these

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three public housing complexes and was unilaterally imposed by the

Mayor on October 1. These are material disputes of fact as to when

the pet policy was first applied to plaintiffs and the

circumstances under which it was applied. The Mayor says these

disputes are immaterial by pointing to 42 U.S.C. § 1437z-3, a

public health and welfare law covering pet ownership in public

housing complexes. But that statute works against the Mayor for it

authorizes public housing residents to own common household pets

"subject to the reasonable requirements of the public housing

agency." Id. § 1437z-3(a).3

The residents also complain about the manner in which

they were notified of the policy, and their lack of an opportunity

to object. The residents are predominantly Spanish speaking; yet

the Municipality provided the pet policy to them only in English.

The notice on its face did not provide any opportunity to object to

the policy. Nor did the notice say when the policy would be

enforced. And the short length of time between the residents'

receipt of the notice and the policy's enforcement, the plaintiffs

allege, provided them with insufficient opportunity to find humane

solutions for any pets which they had to relinquish.

3

It is unclear whether the residents also deny that the

pet policy is a reasonable requirement or that there have been

problems such as to justify the regulations. If so, this presents

material issues of disputed fact.

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We cannot say on the basis of the pleadings alone that an

objective official in the Mayor's position, as a matter of law,

would have reasonably concluded his actions in implementing and

executing the pet policy were not a violation of the Fourth

Amendment. The district court was correct to deny the Mayor

qualified immunity on the Fourth Amendment claims based on the

pleadings.

B. Application of Qualified Immunity Analysis to the

Fourteenth Amendment Due Process Claims

The Mayor has waived any appeal from the denial of

qualified immunity as to the Fourteenth Amendment procedural due

process claims by failing to brief it.4

The plaintiffs have also alleged Fourteenth Amendment

substantive due process violations, and the Mayor does appeal from

the denial of qualified immunity as to those claims. Fourteenth

Amendment substantive due process claims often turn on whether the

alleged misconduct "shocks the conscience." See Espinoza v. Sabol,

558 F.3d 83, 87 (1st Cir. 2009) ("The substantive component of the

Due Process Clause is violated by executive action 'when it can

properly be characterized as arbitrary, or conscience shocking, in

a constitutional sense.'" (quoting County of Sacramento v. Lewis,

523 U.S. 833, 847 (1998))).

4

This does not mean he is barred from raising qualified

immunity as to the procedural due process claims again on a more

developed record before or at trial.

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The Mayor's primary argument that he is entitled to

immunity is that a "shock the conscience" violation against him or

other municipal officials is not stated on the face of the

complaint because such a claim cannot arise as to the treatment of

animals. He makes a cursory argument that such a claim may be

stated only as to the treatment of people and that the treatment of

animals must be left to state law. But the language of the

Fourteenth Amendment is that a state shall not "deprive any person

of life, liberty, or property, without due process of law." U.S.

Const. amend. XIV, § 1. The Fourteenth Amendment protects against

certain deprivations of people's property, and "property"

encompasses people's pet cats and dogs.

The Mayor's argument continues that the substantive due

process "shock the conscience" caselaw does not apply in situations

of deprivation of property, but only to deprivations of the life

and/or liberty of a person. This argument, we think, ignores the

language of the Amendment. It is the effect on the person from the

deprivation of the interest in life, liberty, or property which may

be "shocking to the conscience," and perhaps beyond the

constitutional pale. We see no reason to read the word "property"

out of the Amendment; we would be reluctant to conclude that

deprivations of property cannot ever be so shocking in their effect

on the person as to lead to a Fourteenth Amendment substantive due

process violation. Cf. Clark v. Boscher, 514 F.3d 107, 112-13 (1st

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Cir. 2008) (considering an alleged substantive due process

violation involving the deprivation of property but recognizing

that "the substantive due process doctrine may not, in the ordinary

course, be invoked to challenge" the type of misconduct alleged

(quoting Mongeau v. City of Marlborough, 492 F.3d 14, 17 (1st Cir.

2007))).

Yet it is also true that the Supreme Court has been firm

in its reluctance to expand the doctrine of substantive due

process. See Chavez, 538 U.S. at 775. Indeed, it is because of

this resistance toward expanding the reach of substantive due

process that the official conduct "most likely to rise to the

conscience-shocking level" is "conduct intended to injure in some

way unjustifiable by any government interest." Id. (quoting Lewis,

523 U.S. at 849) (internal quotation marks omitted). While there

is reason for skepticism about the plaintiffs' theory, we are

reluctant to resolve at this point the question of whether the

government had an interest sufficient to justify the cruel killing

of household pets arbitrarily seized from their owners, even if the

government ultimately had a legitimate interest in restricting

ownership of pet cats and dogs in public housing. We do not need

to render what would essentially be an advisory opinion on these

precise arguments by the Mayor that a substantive due process claim

may never be stated as to the arbitrary and cruel seizure and

killing of pets. See Pearson, 129 S. Ct. at 818.

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Instead, we resolve the qualified immunity issue in the

Mayor's favor under Pearson's first prong for different reasons.

That is, analyzing the pleadings under Iqbal, we hold that the

allegations of the complaint do not allege a sufficient connection

between the Mayor and the alleged conscience-shocking behavior --

the killing of the seized pets -- to state the elements of a

substantive due process violation.5

The purported liability of the Mayor for damages for

substantive due process violations does not involve a policy of the

Municipality for which he is responsible, nor does it rest on his

personal conduct. Instead, the allegations against the Mayor are

that he promulgated a pet policy for the public housing complexes

and was present at and participated in one of the raids. This

level of involvement is insufficient to support a finding of

liability.

First, there is nothing conscience-shocking about the pet

policy itself. The terms of the pet policy, for which the

complaint holds the Mayor responsible, say nothing about how

"Prohibited Pets," which include cats and dogs, are to be removed

5

The district court, in denying qualified immunity on the

substantive due process claim, did not analyze the specific facts

alleged against the Mayor, but incorrectly focused instead on the

acts of the "government officials." We also note that the district

court opinion uses language which could be misread to conclude that

the court found the defendants had in fact violated constitutional

rights. That issue was not before the court, and it could make no

such findings at this stage in the litigation.

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from their owners or what happens thereafter to the pets.

Plaintiffs complaint identifies no policy which authorized the

killing of the pets, much less one which the Mayor authorized.6

Second, the complaint does not allege that the Mayor was

personally involved in any conscience-shocking conduct during the

raids. The complaint does allege that the Mayor was present during

the first raid on October 8, 2007 and that he observed it. But he

is not named as the individual who directly planned, supervised,

and executed the raids of their aftermath; the complaint merely

alleges that he supervised, directly or indirectly, the agencies

involved. And there is no allegation the Mayor participated in the

killing of any pet or directed the services of the private

contractor.

There is a generalized allegation that the Mayor planned,

personally participated in, and executed the raids in concert with

others, but the others are named as the persons with specific

administrative responsibilities as to the public housing complexes.

6

The complaint alleges that an informal policy emerged

from the repeating of the raids. But a single repetition of the

raids alone is insufficient to establish endorsement of an informal

policy by the Mayor. See Estate of Bennett, 548 F.3d at 177

(recognizing that to impose liability on the policymaking official

under § 1983, a policy "must be so well settled and widespread that

the policymaking officials of the municipality can be said to have

either actual or constructive knowledge of it yet did nothing to

end the practice" (quoting Bordanaro v. McLeod, 871 F.2d 1151, 1156

(1st Cir. 1989))). We reject such "'naked assertion[s]' devoid of

'further factual enhancement.'" Iqbal, 2009 WL 1361536, at *12

(alteration in original) (quoting Twombly, 550 U.S. at 557).

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"These bare assertions, much like the pleading of conspiracy in

Twombly, amount to nothing more than a 'formulaic recitation of the

elements' of a constitutional [tort]," Iqbal, 2009 WL 1361536, at

*14 (quoting Twombly, 550 U.S. at 555), and are insufficient to

push the plaintiffs' claim beyond the pleadings stage. Moreover,

the complaint alleges, without any more details, that the Mayor was

among all the other public and private employees "snatching pets

from owners." Although these bare allegations may be "consistent

with" a finding of liability against the Mayor for seizure of the

same pets, such allegations "stop[] short of the line between

possibility and plausibility of 'entitlement to relief'" on the

larger substantive due process claim. Iqbal, 2009 WL 1361536, at

*12 (quoting Twombly, 550 U.S. at 557) (internal quotation marks

omitted).

A government official who himself inflicts truly

outrageous, uncivilized, and intolerable harm on a person or his

property may be liable; but there is no claim in this complaint the

Mayor himself inflicted such harm. Cf. Vélez-Díaz v. Vega-

Irizarry, 421 F.3d 71, 79 (1st Cir. 2005) (granting qualified

immunity where there was no allegation that the government actors

were directly involved in the offensive conduct). The allegations

against the Mayor thus do not establish that his involvement was

sufficiently direct to hold him liable for violations of the

plaintiffs' substantive due process rights.

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Nor do the allegations make out a viable case for

supervisory liability, such that the Mayor could, on these

pleadings, be held responsible for violations of the plaintiffs'

substantive due process rights committed by subordinate municipal

employees or workers from ACS.7 See Estate of Bennett, 548 F.3d at

176-77 (explaining that supervisory liability for alleged

substantive due process violations requires a showing of

"supervisory encouragement, condonation or acquiescence or gross

negligence amounting to deliberate indifference" (quoting Pineda v.

Toomey, 533 F.3d 50, 54 (1st Cir. 2008))). Indeed, supervisory

liability lies only where an "'affirmative link' between the

behavior of a subordinate and the action or inaction of his

supervisor" exists such that "'the supervisor's conduct led

inexorably to the constitutional violation.'" Pineda, 533 F.3d at

54 (quoting Hegarty v. Somerset County, 53 F.3d 1367, 1380 (1st

Cir. 1995)).

Further, supervisory liability under a theory of

deliberate indifference "will be found only if it would be manifest

7

Some recent language from the Supreme Court may call into

question our prior circuit law on the standard for holding a public

official liable for damages under § 1983 on a theory of supervisory

liability. See Iqbal, 2009 WL 1361536, at *11 ("Because vicarious

liability is inapplicable to Bivens and § 1983 suits, a plaintiff

must plead that each Government-official defendant, through the

official's own individual actions, has violated the

Constitution."). We need not resolve this issue, however, because

we find that the plaintiffs have not pled facts sufficient to make

out a plausible entitlement to relief under our previous

formulation of the standards for supervisory liability.

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to any reasonable official that his conduct was very likely to

violate an individual's constitutional rights." Id. (quoting

Hegarty, 53 F.3d at 1380) (internal quotation marks omitted).

Here, the Mayor's promulgation of a pet policy that was silent as

to the manner in which the pets were to be collected and disposed

of, coupled with his mere presence at one of the raids, is

insufficient to create the affirmative link necessary for a finding

of supervisory liability, even under a theory of deliberate

indifference. The Mayor is entitled to qualified immunity on the

pleadings on the Fourteenth Amendment substantive due process

claims.

We note that the Mayor has denied many of the factual

allegations asserted in the complaint. Nothing in this opinion

precludes the Mayor from seeking qualified immunity on a further

developed record at a later stage.

IV.

The district court's order denying the Mayor qualified

immunity as to the plaintiffs' Fourth Amendment and Fourteenth

Amendment procedural due process claims is affirmed. The district

court's order denying the Mayor qualified immunity as to the

plaintiffs' Fourteenth Amendment substantive due process claims is

reversed, and the plaintiffs' Fourteenth Amendment substantive due

process claims are dismissed. Each party shall bear its own costs.

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