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Recchia v. City of Los Angeles Department of Animal Services

United States Court of Appeals, Ninth Circuit

May 1, 2018

Martino Recchia, Plaintiff-Appellant,
v.
City of Los Angeles Department of Animal Services, North Central Animal Care Center; Rodriguez, ACO, (Activity No. A11-031309), in her individual capacity; R. Weekley, ACO, (ID No. 0999082) in his individual capacity, Defendants-Appellees.

          Argued and Submitted December 6, 2017 Pasadena, California

          Appeal from the United States District Court for the Central District of California No. 2:12-cv-07468-DDP-MRW, Dean D. Pregerson, District Judge, Presiding

          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.

          Before: Kim McLane Wardlaw and Ronald M. Gould, Circuit Judges, and Raner C. Collins, [*] Chief District Judge.

         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 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.

          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 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. 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 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 ...


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