Martino Recchia v. City of La Dept. Animal Svcs.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTINO RECCHIA, No. 13-57002

Plaintiff-Appellant,

D.C. No.

v. 2:12-cv-07468-

DDP-MRW

CITY OF LOS ANGELES DEPARTMENT

OF ANIMAL SERVICES, North Central

Animal Care Center; RODRIGUEZ, OPINION

ACO, (Activity No. A11-031309), in

her individual capacity; R.

WEEKLEY, ACO, (ID No. 0999082)

in his individual capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Dean D. Pregerson, District Judge, Presiding

Argued and Submitted December 6, 2017

Pasadena, California

Filed May 1, 2018

2 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.

Before: Kim McLane Wardlaw and Ronald M. Gould,

Circuit Judges, and Raner C. Collins, * Chief District Judge.

Opinion by Judge Gould

SUMMARY **

Constitutional Law

In an action concerning the warrantless seizure of

Martino Recchia's twenty birds and euthanization of all but

two of the birds, the panel (1) affirmed the district court’s

summary judgment on Recchia’s Fourteenth Amendment

claim against Los Angeles Department of Animal Control

officers and state law claims as to all defendants; and

(2) vacated summary judgment on Fourth Amendment

claims against the officers and constitutional claims against

the City of Los Angeles.

Concerning Recchia’s claim that the Officers violated

his Fourth Amendment rights, the panel held that there was

a genuine factual dispute about whether Recchia’s healthy-

looking birds posed any meaningful risk to the other birds or

humans at the time they were seized. The panel affirmed the

dismissal in part as to the seizure of the birds that appeared

sick, but vacated and remanded in part as to the seizure of

any birds that were wholly healthy in outward appearance.

*

The Honorable Raner C. Collins, Chief United States District

Judge for the District of Arizona, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 3

The panel instructed the district court on remand to consider

in the first instance whether the Officers were entitled to

qualified immunity for any potential constitutional violation.

Concerning Recchia’s claim that the Officers violated

his Fourteenth Amendment procedural due process rights by

denying him a hearing before taking and destroying his

healthy-looking birds, the panel held that to the extent that

Recchia argued that he was denied a meaningful post-seizure

hearing due to the euthanization of the birds, the district

court properly granted summary judgment to the Officers

because neither of the Officers was involved in the decision

to euthanize the birds. The panel further held that the

Officers did not violate Recchia’s procedural due process

rights when they seized his birds without a pre-seizure

hearing because California Penal Code § 597.1 provided for

adequate process. The panel noted that it did not matter

whether Recchia’s birds were properly seized under the

statute or whether there was an emergency.

The panel vacated summary judgment in favor of the

City on Recchia’s constitutional claims. The panel

instructed the district court on remand to consider whether

to grant Recchia permission to amend his complaint under

Fed. R. Civ. P. 15 and 16 to assert his theory of municipal

liability.

The panel affirmed the district court’s summary

judgment to defendants on Recchia’s state tort law claims

based on events tied to the seizure of the birds. The panel

held that discretionary immunity shielded the defendants

from liability.

4 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.

COUNSEL

Matthew B. Summers (argued) and Michael Shipley,

Kirkland & Ellis, Los Angeles, California, for Plaintiff-

Appellant.

Matthew A. Scherb (argued), Deputy City Attorney; Blithe

S. Bock, Assistant City Attorney; Michael N. Feuer, City

Attorney; Office of the City Attorney, Los Angeles,

California; for Defendants-Appellees.

OPINION

GOULD, Circuit Judge:

After two Los Angeles Department of Animal Control

Officers (the “Officers”) discovered that Martino Recchia

was keeping twenty birds in boxes and cages on the sidewalk

where he lived, the Officers seized the birds without a

warrant. Before a hearing was held on the seizure, a City of

Los Angeles (the “City”) veterinarian euthanized all but two

of the birds. Recchia then sued the City and the Officers

(collectively, “Defendants”), bringing claims for violations

of the Fourth Amendment and Fourteenth Amendment, as

well as claims for state law tort violations. Recchia also

asserted a claim for municipal lability against the City on the

constitutional claims pursuant to Monell v. Department of

Social Services of City of New York, 436 U.S. 658 (1978),

and against the City on the state law claims based on

California Government Code § 815.2. The district court

granted summary judgment for the Defendants on all claims.

We affirm in part on issues including dismissal of the

Fourteenth Amendment due process claim against the

RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 5

Officers and dismissal of the state law claims. But on the

Fourth Amendment claim challenging the seizure of

Recchia’s birds, we vacate and remand because we conclude

that genuine disputes of material fact now preclude summary

judgment on the question of whether there was a

constitutional violation. We instruct the district court to

consider in the first instance whether the Officers are

nonetheless entitled to qualified immunity because any

constitutional violation was not clearly established at the

time it was committed. We also vacate summary judgment

on the Fourteenth Amendment claim against the City and

instruct the district court to consider in the first instance

whether Recchia should be allowed to add a new theory of

Monell liability at this juncture.

I

In late 2011, Martino Recchia was homeless and living

on the streets of Los Angeles with his twenty pet birds.

Eighteen of the birds were pigeons and Recchia also had a

crow and a seagull. Recchia kept these birds in twelve to

fourteen cardboard boxes and cages, which were covered

with blankets and towels.

On November 3, 2011, Los Angeles County Animal

Control Officer Robert Weekley came to investigate

Recchia’s campsite in response to complaints about a

homeless man with birds. Officer Weekley told Recchia that

he was going to look through Recchia’s boxes and

containers. Recchia agreed to the inspection and admitted to

the Officer that he was keeping some pigeons and a crow in

the boxes.

Officer Weekley then looked through the boxes. Los

Angeles County Animal Control Officer Yvonne Rodriguez

soon arrived to assist him. All the birds had food and water.

6 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.

However, the birds were maintained in areas too small for

them to be able to fly around, the newspaper lining the floors

was wet, and the cages and boxes were covered with feces. 1

Several birds were in dire physical condition. One

pigeon had a baseball-sized tumor protruding from its

abdomen and extensive feather loss. Another pigeon had

tremors and continually walked in circles. Another pigeon

had a shriveled, non-functional right eye. Still another

pigeon had contorted legs, feather loss, and could not walk

or fly. Some birds had wobbling necks or necks in unusual

positions. Several birds were missing toes or toenails, or had

very long toenails that were curled in circles. Many birds

had overgrown beaks. Recchia states that he rescued many

of these birds and kept them in the same or better condition

than that in which he had found them. However, it cannot

be doubted on this record that many of the birds were

deformed, distressed or diseased. On the other hand, eight

of the pigeons showed no signs of injury or disease, and

outwardly appeared to be healthy.

Officer Rodriguez photographed the birds and their

living conditions, while Officer Weekley spoke with

Recchia. Officer Weekley told Recchia that he was going to

impound all of the sick or injured birds, and asked Recchia

if there was somewhere Recchia could take the pigeons

without visible injuries or illnesses to get them off the street.

Recchia told Officer Weekley that he had a friend in the

Silverlake neighborhood of Los Angeles and that he could

1

Recchia argues that the birds were housed in better or different

conditions than described by the Defendants. But we credit the photos

taken of the birds at Recchia’s campsite because the validity of those

photos is uncontested. See Scott v. Harris, 550 U.S. 372, 380–81 (2007)

(holding that a videotape of undisputed validity should be treated as

providing undisputed facts at summary judgment).

RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 7

take the birds to that friend’s house. However, Recchia

could not provide his friend’s name or address.

Officer Weekley then decided to impound all of the

birds, given that Recchia could not verify that the friend’s

home in Silverlake would meet the municipal code

requirement that unpermitted wild birds must be housed at

least 50 feet from the bird owner’s dwelling and 150 feet

from all other dwellings. See LAMC §§ 53.59, 53.71.

Officer Weekley was also concerned, given the lack of detail

Recchia had provided, that the birds would remain in squalor

on the public sidewalk if left with Recchia. And Officer

Weekley did not think that Recchia could adequately care

for the birds.

The Animal Control Officers then impounded the birds. 2

Recchia was also given a “Post-Seizure Hearing Notice,”

which informed him that he had ten days to request a post-

seizure hearing.

The Animal Control Officers then took the birds to the

North Central Care Center (the “Care Center”). The next

day, a city veterinarian, Dr. Steven Feldman, examined the

birds. He determined that the crow and the seagull should

be sent to wildlife rescue organizations. But he decided all

of the pigeons needed to be euthanized: He determined that

many of the birds had serious and incurable illnesses,

2

During the impoundment process, Recchia and Officer Weekley

got into an argument, and Officer Weekley contends this escalated into

an attempt by Recchia to punch him in the back of the head. Recchia

states he merely attempted to tap Officer Weekley on the shoulder, and

that Officer Weekley responded by attempting to wrestle Recchia to the

ground. In any event, the Los Angeles Police Department was called,

and police officers detained Recchia while the Animal Control Officers

finished impounding the birds. Recchia was then released.

8 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.

including symptoms of various bacterial or viral diseases,

and that it was likely that even those birds without outward

signs of illness carried pathogens. However, Dr. Feldman

did not perform blood tests on the birds because the Care

Center had a policy of not testing birds for illness unless it

was a matter of public health importance. And he

determined that the present circumstances did not rise to that

threshold.

On November 7, 2011, four days after the seizure,

Recchia filed a request for a post-seizure hearing. The

hearing was held the next day. The hearing officer found

that the seizure was justified under California Penal Code

§ 597.1(a)(1), which requires officers to seize animals kept

in public spaces without proper care and attention if the

officers have a “reasonable” belief that “very prompt” action

is required to protect the health and safety of the animal or

others. At this hearing, Recchia learned for the first time that

all of his pigeons had been euthanized.

Recchia then sued the Animal Control Officers and the

Los Angeles Department of Animal Services, pro se,

alleging Fourth and Fourteenth Amendment violations under

42 U.S.C. § 1983, including a Monell claim against the

Department of Animal Services, 3 and state tort law claims

for conversion, negligent infliction of emotional distress,

and intentional infliction of emotional distress.

The district court adopted the magistrate judge’s report

and recommendation and granted summary judgment to the

Defendants. Through the report and recommendation, the

3

The district court treated the naming of the Department of Animal

Services as though Recchia had named the City, which Defendants have

not contested.

RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 9

district court noted that Recchia had offered no medical or

veterinary evidence as to the birds’ condition. It stated that

exigent circumstances justified the seizure and destruction

of the birds, and so found no violation of Recchia’s

constitutional rights. The district court granted summary

judgment to the City, finding Recchia had failed to show

there was any City policy that had led the Animal Control

Officers to act in a manner that injured Recchia. Finally, the

court granted summary judgment to the Defendants on

Recchia’s state tort law claims, holding that there was no

evidence that the Defendants had acted wrongfully. Finding

for the Defendants on other grounds, the district court did

not reach the Defendants’ qualified immunity defense or

their other affirmative defenses. Recchia appeals.

II

We have jurisdiction under 28 U.S.C. § 1291. We

review a district court’s grant of summary judgment de novo.

Leever v. Carson City, 360 F.3d 1014, 1017 (9th Cir. 2004).

In evaluating a summary judgment ruling, we view the

evidence in the light most favorable to the nonmoving party,

and assess “whether there are any genuine issues of material

fact and whether the district court correctly applied the

relevant substantive law.” Id.

III

The Fourth Amendment protects, among other things, a

person’s right not to have their property unreasonably seized

by the government. United States v. Place, 462 U.S. 696,

700 (1983). Homeless people living on the street enjoy the

protection of the Fourth Amendment. Lavan v. City of L.A.,

693 F.3d 1022, 1029 (9th Cir. 2012). And Defendants have

agreed for the purposes of this appeal that Recchia had a

10 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.

property interest in his pigeons. 4 The seizure of a homeless

person’s property implicates important Fourth Amendment

concerns.

Recchia argues that in seizing his birds without a

warrant, the Officers violated his Fourth Amendment rights.

At oral argument and in his briefing on appeal, Recchia

argued only that the seizure of his healthy birds was a

violation of his constitutional rights, although in his

complaint Recchia sought damages for the seizure of all of

his birds.

“Because warrantless searches and seizures are per se

unreasonable, the government bears the burden of showing

that a warrantless search or seizure falls within an exception

to the Fourth Amendment’s warrant requirement.” United

States v. Cervantes, 703 F.3d 1135, 1141 (9th Cir. 2012).

The defendants here invoke the exigent or emergency

circumstances exception to justify the seizure. The exigent

circumstances exception allows warrantless searches and

seizures when an emergency leaves police insufficient time

to seek a warrant. See Birchfield v. North Dakota, 136 S. Ct.

2160, 2173 (2016). Under this exception, for example, the

police need not wait to get a warrant if there is an urgent need

4

Specifically, defendants have agreed “[f]or the purposes of this

appeal, there is no dispute there can be some property interest in

pigeons.” Accordingly, here we treat Recchia as having a property

interests in the pigeons. However, in a case where the issue was properly

raised for decision, there would be a substantial issue whether a person

can have a property interest in wild animals such as pigeons, raccoons,

or coyotes, to name a few. See Bilida v. McCleod, 211 F.3d 166, 173

(1st Cir. 2000); see also Cal. Fish & Game Code § 2000 (prohibiting the

taking of a wild bird except as provided for in the California Fish and

Game Code).

RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 11

to provide aid or if there is concern evidence might be

destroyed in the time it would take to get a warrant. Id.

In evaluating whether the circumstances justified an

official in acting without a warrant, we review the “totality

of the circumstances.” McNeely, 569 U.S. at 151. Here, the

City argues that the seizure was justified because the birds

were being held in unsanitary conditions, and it was

“untenable” for both the birds’ health and for the health of

other animals and the public for the birds to remain on the

street in those conditions. Recchia argues that any public

health threat was too speculative to justify seizing the birds,

and that Officer Weekley’s initial willingness to allow

Recchia to take the healthy birds to a friend’s house

demonstrates that there was no emergency.

There is no question about whether the emergency

exception can be applied to animal workers who seize an

animal in a true emergency setting. For example, if animal

workers in an urban setting confront an obviously diseased

or ill animal living in foul conditions that may be causing or

compounding the animal’s suffering, whether a bird or a dog

or a cat, those workers have the right to seize the animal

without getting a warrant. There is little preexisting judicial

precedent on this subject. But, in the Sixth Circuit case of

United Pet Supply, Inc. v. City of Chattanooga, 768 F.3d 464

(6th Cir. 2014), animal control workers were confronted

with a situation where a pet store owner had maintained

premises so hot and so unventilated that a puppy had died.

Id. at 473–75. In that context, the court held that the workers

could seize animals from the pet store without a warrant. Id.

at 490.

Other obvious examples come to mind. For example, if

workers saw a dog foaming at the mouth, they would not

have to pause to get a warrant before trying to get the dog

12 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.

off the street because of the risks of a rabid dog biting

another animal or a person. Though less dramatic, there are

similar issues with diseased cats or birds. There will always

be the problem that if a diseased animal with a

communicable disease is allowed to mingle with other

animals, it may transmit disease to them. A disease can

spread quickly, maybe as fast as lightning, leaving human

health care or animal control workers with only a limited

ability to control it. Officers concerned with human or

animal safety should not have to pause to obtain a warrant if

they are reasonably concerned that a significant spread of

illness might be caused by an infected animal. Similarly, if

health inspection workers see evidence of rodent infestation

in a restaurant, they need not pause to get a warrant before

taking corrective action to protect the public.

If all the birds maintained by Recchia had been

unhealthy or sick in appearance, we think their entire seizure

would pose no significant constitutional issue, and clearly

would not offend the Fourth Amendment because of the

scope of the emergency exception to the warrant requirement

and the need to seize the birds to end their suffering and

prevent transmission of illness. However, the crux of the

problem here is that not all of the birds appeared to be sick,

in fact eight birds appeared outwardly healthy. And so we

are confronted with a factual issue about whether the exigent

circumstances exception applies as to the seizure of the

healthy-looking birds kept by Recchia in this case.

On the one hand, as to considerations suggesting there

was no urgent need to seize the birds, there was substantial

evidence that the healthy looking birds should have been no

cause for concern. Officer Weekley’s initial willingness to

leave the healthy birds with Recchia, if Recchia could

relocate them in a way that complied with municipal law,

RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 13

counsels against finding that an emergency existed here. See

Rogers v. Cty. of San Joaquin, 487 F.3d 1288, 1295 (9th Cir.

2007) (holding that an official’s initial determination there

was no need for a seizure “militates against a finding of

exigency.”).

Although the City argues that Dr. Feldman’s conclusion

that the birds potentially carried disease demonstrates that

there was a grave risk that required the birds’ seizure, we

note that Dr. Feldman explained that if birds “may be

harboring a potentially dangerous human contagious disease

or may be exhibiting signs indicative of an epidemic,” “the

Care Centers will then incur the expense of performing

blood work and lab tests” on the birds. But here Dr. Feldman

“did not feel that the pathology manifested in [Recchia’s]

pigeons was of a most serious caliber to warrant that.” Also,

in assessing reasonableness, we look at what was known to

the officers at the time of seizure. United States v. Licata,

761 F.2d 537, 543 (9th Cir. 1985). Here, at that time, the

Officers did not have the benefit of Dr. Feldman’s opinion

and there is no evidence that the Officers knew facts

supporting the view that the healthy-looking pigeons carried

a disease that was dangerous to humans, such as avian

influenza or bubonic plague, or carried a pathogen that might

lead to an epidemic in the Los Angeles bird population. 5

5

Further, there is no evidence concerning how long it would have

taken for the Officers to obtain a warrant or concerning the likelihood

that the birds that looked healthy would have transmitted any illness in

that time. And the veterinarian did not examine and euthanize the birds

until the day after they were seized. This demonstrates that there was at

least some time for the Officers to get a warrant before a medical

inspection of the birds could or needed to be made. We also conclude it

was relevant that it was not possible to hold the birds in quarantine at the

Care Center, meaning that people and animals were exposed to the birds

14 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.

On the other hand, as to considerations suggesting a

degree of urgency, there was evidence from which a jury

might have determined that all the birds posed some hazard

or were in immediate danger justifying a seizure. We

observe that the birds were kept in living spaces inadequate

for them to fly, spaces that were dirty and covered with feces.

And Dr. Feldman was concerned that even the healthy birds

might have pathogens or viruses that might spread to other

birds in the wild—although it is unclear what sort of illness

they might have had, as Dr. Feldman appears to have just

generally listed illnesses that may afflict birds without any

analysis to show how Recchia’s birds’ symptoms linked

them to those illnesses. Further, Officer Weekly did not

think Recchia was capable of caring for the birds.

Because of these competing lines of evidence, we hold

that there is a genuine factual dispute about whether the

healthy-looking birds posed any meaningful risk to other

birds or humans at the time they were seized. Therefore,

although we affirm the dismissal in part as to the seizure of

the birds that appeared sick, we vacate and remand in part as

to the seizure of any birds that were wholly healthy in

outward appearance.

On remand, we instruct the district court to consider in

the first instance whether the Officers are entitled to

qualified immunity for any potential constitutional violation

because it was not “clearly established” at the time of the

seizure that the warrantless seizure of the birds could be a

violation of Recchia’s constitutional rights. See San Jose

and whatever theoretical pathogens they may have been carrying for

some time after the seizure. Again, this could lead a jury to conclude

that there was no emergency.

RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 15

Charter of Hells Angels Motorcycle Club v. City of San Jose,

402 F.3d 962, 971 (9th Cir. 2005).

IV

Recchia also argues that the Officers violated his

Fourteenth Amendment procedural due process rights by

denying him a hearing before taking and destroying his

outwardly healthy-looking birds. Recchia appears to be

challenging the denial of both a pre- and a post-seizure

hearing. However, Recchia alleges a Fourteenth

Amendment violation against only the Officers, not the

veterinarian. To the extent that Recchia argues he was

denied a meaningful post-seizure hearing due to the

euthanization of the birds, the district court properly granted

summary judgment to the Officers because neither of the

Officers was involved in the decision to euthanize the birds.

Accordingly, the relevant question is whether the Officers

violated Recchia’s Fourteenth Amendment procedural due

process rights because they seized Recchia’s birds without a

pre-seizure hearing.

Again, the parties agree, for purposes of this appeal, that

Recchia had a property interest in his birds. Once a court

has determined that there is a protected interest at stake, the

court “must apply the three-part balancing test established in

Mathews v. Eldridge, 424 U.S. 319 (1979), to determine

‘whether a pre-deprivation hearing is required and what

specific procedures must be employed at that hearing given

the particularities of the deprivation.’” See Yagman v.

Garcetti, 852 F.3d 859, 864 (9th Cir. 2017) (quoting

Shinault v. Hawks, 782 F.3d 1053, 1057 (9th Cir. 2015).

Accordingly, we apply the Mathews test to determine if

Recchia’s rights were violated by the absence of a pre-

deprivation hearing. The Mathews factors are: “(1) the

private interest affected; (2) the risk of erroneous deprivation

16 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.

through the procedures used, and the value of additional

procedural safeguards; and (3) the government’s interest,

including the burdens of additional procedural

requirements.” Id. 6

“[T]he relevant inquiry is not whether [Recchia] should

have been [afforded a hearing] in this particular case, but

whether the statutory procedure itself is incapable of

affording due process.” Soranno’s Gasco, Inc. v. Morgan,

874 F.2d 1310, 1318 (9th Cir. 1989) (citing Hodel v. Va.

Surface Mining & Reclamation Ass’n, 452 U.S. 264, 302

(1981)). Recchia’s birds were seized under the auspices of

California Penal Code § 597.1(a)(1), which provides for the

immediate seizure of animals where “[a]ny peace officer,

humane society officer, or animal control officer” has

“reasonable grounds to believe that very prompt action is

required to protect the health or safety of the animal or the

6

Defendants argue that because exigent circumstances justified

seizing the birds, Recchia was not entitled to a pre-seizure hearing. We

agree that where exigent or emergency circumstances justify a

warrantless seizure there will be no need to have a hearing before a

seizure. See United States v. James Daniel Good Real Prop., 510 U.S.

43, 62 (1993) (“Unless exigent circumstances are present, the Due

Process Clause requires the Government to afford notice and a

meaningful opportunity to be heard before seizing real property subject

to civil forfeiture.”). However, we have determined that the warrantless

seizure was not, on the record presented at summary judgment, justified

by exigent circumstances. And so the Defendants’ argument on this

point is not persuasive.

Defendants also argue that the seizure was proper simply because it

was authorized under California law. But the language of California

statutes cannot adjust downwards the minimum process due under the

Constitution. Accordingly, we proceed through the Mathews analysis to

determine whether a pre-deprivation hearing was required.

RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 17

health or safety of others.” Accordingly, the relevant

question is whether § 597.1 provides for adequate process,

in light of the interests it serves, not whether this particular

seizure was proper.

The first Mathews factor is the private interest at stake.

Here the interest at stake is an animal or pet owner’s property

interest in their animals and in having the pets or animals

with them. 7 Given the emotional attachment between an

owner and his or her pet, a pet owner’s possessory interest

in a pet is stronger than a person’s interest in an inanimate

object. See San Jose Charter of Hells Angels Motorcycle

Club, 402 F.3d at 975. 8

Second, the risk of erroneous deprivation here appears

fairly low, generally. Animal Welfare Officers are executing

the seizure and so have some expertise in the factors that

would warrant such a seizure. See United Pet Supply, Inc.,

768 F.3d at 486 (“[T]he risk of an erroneous deprivation was

low due to the participation of trained animal-welfare

officers in the seizure, and there is little value to additional

procedural safeguards.”). The statute also authorizes peace

officers to execute seizures, which does weigh somewhat

against the expertise argument. But it appears that generally

7

We reach no holding here as to whether or not Recchia’s pigeons

are properly characterized as pets, and we observe that California Fish &

Game Code § 2000 (prohibiting the taking of a wild bird except as

provided for in the California Fish and Game Code) would seem to

suggest otherwise, despite the parties’ agreement for purpose of the

appeal that Recchia had a property interest in the pigeons.

8

As to the pre-seizure hearing, the fact that the animals were

euthanized is not relevant to the analysis, as the euthanization goes to the

issue of a post-deprivation hearing.

18 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.

these seizures will be executed by persons with training in

animal welfare and health assessment.

Finally, and we find dispositively here, there is a strong

general governmental interest in being able to seize animals

that may be in imminent danger of harm due to their living

conditions, may carry pathogens harmful to humans or other

animals, or may otherwise threaten public safety without

first needing to have a hearing on the subject. See id. at 487;

see also Hodel, 452 U.S. at 300 (“Protection of the health

and safety of the public is a paramount governmental interest

which justifies summary administrative action.”). 9

It does not matter whether Recchia’s pigeons were

properly seized under the statute or whether there was an

emergency here. See Hodel, 452 U.S. at 302 (“The relevant

inquiry is not whether a cessation order should have been

issued in a particular case, but whether the statutory

procedure itself is incapable of affording due process.”);

Soranno’s Gasco, Inc., 874 F.2d at 1318 (“We reject

Gasco’s argument that due process was violated because no

immediate threat to public health was involved in this

particular situation.”). For the purposes of the Fourteenth

Amendment analysis, we are not assessing whether this

particular seizure was proper, but instead whether the statute

provides due process. See Hodel, 452 U.S. at 302. We hold

9

Additionally, the statute entitles an animal owner to a post-

deprivation hearing, allowing the animal owner to challenge the seizure

and attempt to regain the animal while the suspected public safety threat

is neutralized. See Cal. Penal Code § 597.1(f). The presence of some

opportunity to challenge the seizure further supports the conclusion that

this statute does not violate due process. See Hodel, 452 U.S. at 302–03.

Of course, Recchia’s post-seizure hearing could do him no good here

because his birds were already dead, but that issue is not now properly

before us.

RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 19

that it does and so affirm the district court’s grant of

summary judgment on the Fourteenth Amendment claim as

to the Officers.

V

Recchia asserts that the district court should not have

granted summary judgment on the Monell claim because the

City’s policy of not requiring blood tests before euthanizing

birds led to a violation of Recchia’s constitutional rights.

Defendants argue that Recchia waived this argument

because he did not raise it to the district court. Recchia

tacitly concedes that this is true. However, he asks us to

exercise our discretion to allow this new argument,

contending that the Defendants will not be prejudiced by

allowing him to raise this new theory and that it would cause

manifest injustice to refuse to hear his new argument on the

Monell claim.

We may “review an issue not raised nor objected to prior

to appeal if necessary to prevent manifest injustice.” Retail

Flooring Dealers of Am., Inc. v. Beaulieu of Am., LLC,

339 F.3d 1146, 1150 n.5 (9th Cir. 2003). Recchia has been

pro se for much of this litigation and so should be afforded

some leniency from the generally strict rules against raising

issues or theories late.

Because we remand this case, we also instruct the district

court to consider whether to grant Recchia permission to

amend his complaint under Federal Rules of Civil Procedure

15 and 16 to assert this theory of municipal liability. 10 We

vacate summary judgment in favor of the City on Recchia’s

10

We express no view on whether he should prevail on that theory

of municipal liability, which has not been tested in the district court.

20 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.

constitutional claims so that the district court can consider

this question.

VI

Recchia asserts state tort law claims based on events tied

to the seizure of the pigeons. Under California law, public

entities are liable for violation of state law only as provided

by statute. Eastburn v. Reg’l Fire Prot. Auth., 31 Cal. 4th

1175, 1183 (2003). California’s Government Code grants

public entities and their employees several immunities,

including discretionary immunity, which Defendants

contend is applicable here.

Discretionary immunity applies to shield a California

public employee, and thereby his or her employer, see Cal.

Gov’t Code § 815.2 (b), from liability for state law violations

when an injury results “from [the employee’s] act or

omission where the act or omission was the result of the

exercise of the discretion vested in [the employee], whether

or not such discretion be abused.” Id. § 820.2. “The

immunity applies even to ‘lousy’ decisions in which the

worker abuses his or her discretion.” Christina C. v. Cty. of

Orange, 220 Cal. App. 4th 1371, 1381 (2013). But “to be

entitled to immunity the state must make a showing that such

a policy decision, consciously balancing risks and

advantages, took place.” Johnson v. State, 69 Cal. 2d 782,

794 n.8 (1968).

Here, the Officers seized the pigeons under California

Penal Code § 597.1(a)(1), which provides, in relevant part,

that “when [an] officer has reasonable grounds to believe

that very prompt action is required to protect the health or

safety of the animal or the health or safety of others, the

officer shall immediately seize the animal.” Recchia argues

that there is nothing discretionary about this statute, as it

RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 21

dictates that officers “shall” seize an animal. But Recchia’s

argument entirely misses the point.

To seize the birds in this case, the officers had to first

make a discretionary decision that very prompt action was

required to protect the health or safety of the birds or of

others. In practice, each officer will be making discretionary

decisions about what are “reasonable grounds” to take

prompt action to assess what to do in any given situation.

Because individual officers will be making assessments of

the situation and of the relevant considerations and dangers

in determining the best outcome, as the Officers did here,

deciding whether to seize animals under § 597.1(a)(1)

clearly represents an exercise of discretion. See also

Christina C., 220 Cal. App. 4th at 1381 (finding that social

workers have discretionary immunity for their decisions to

remove children from the children’s homes). We affirm the

district court’s decision to grant summary judgment to

Defendants on Recchia’s state law claims.

VII

We take seriously the health and safety interests raised

by Defendants here. Animals can carry dangerous

pathogens that in some cases can be harmful to humans or to

other species of animals. Whenever government officials

have grounds to think that an animal may transmit a

dangerous disease in the time it might take to get a warrant,

the Fourth Amendment will not block an immediate seizure

of that animal. Nor will officers violate an animal or pet

owner’s constitutional rights where the officers take animals

to protect them from some immediate danger in their living

situation. But here there are disputes of fact about the health

risks that the outwardly healthy-looking birds posed.

22 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.

We AFFIRM summary judgment on the Fourteenth

Amendment claim against the Officers and the state law

claims as to all Defendants and VACATE summary

judgment on the Fourth Amendment claims against the

Animal Control Officers and as to Recchia’s constitutional

claims against the City, with instructions to the district court

to consider in the first instance whether the Officers are

entitled to qualified immunity and whether Recchia should

be allowed to amend his complaint to add his new theory of

municipal liability.

AFFIRMED in part; VACATED in part;

REMANDED with instructions.