Smith v. First State Animal Center

SUPERIOR COURT

OF THE
STATE OF DELAWARE
E. SCOTT BRADLEY l The Circle, Suite 2
JUDGE GEORGETOWN, DE 19947
TELEPHONE (302) 856-5256
Marc S. Casarino, Esquire Brian T.N. Jordan, Esquire
Nicholas R. Wynn, Esquire Jordan Law, LLC
White and Williams LLP 704 N. King Street
600 North King Street Suite 600
Suite 800 Wilmington, Delaware 19801

Wilmington, Delaware 19801

Re: Smith v. First State Animal Center and SPCA, Inc., et al.,
C.A. No. SlSC-12-025 ESB

On Defendants’ Motion for Summary Judgment: GRANTED

Date Submitted: July 5, 2018
Date Decided: October 4, 2018

Dear Counsel,

The case at bar arises out of the seizure of Nancy and John Smith’s dog and the arrest and
criminal prosecution of the Smiths. As a result of these actions, the Smiths filed suit against Kent
County Society for the Prevention of Cruelty to Animals, Inc. (“KCSPCA”)‘, Katelyn Pepper, Sandra
Galloway, David Hulse, Ruth Agnew, Kevin Usilton, Drew May, Mary Palacio, and Sherri
Warburton alleging (l) the deprivation of their constitutional rights in violation of 42 U.S. C. § 1983;
(2) intentional infliction of emotional distress; (3) false arrest; (4) false imprisonment; and (5)
malicious prosecution. l previously ruled on the collective Defendants’ Motion to Dismiss, which

was granted in part With respect to several defendants for each count. The Motion to Dismiss Was

1 The Court notes that the correct legal name for the entity identified as KCSPCA by the
Smiths’ complaint is “First State Animal Center and SPCA, Inc.” However, to maintain
consistency among the decisions issued in this case, I Will continue to refer to it as KCSPCA.

granted with respect to all of Nancy Smith’s claims. Pending before the Court is the collective
Defendants’ Motion for Summary Judgrnent on the remaining claims brought on behalf of John
Smith (hereinafter, “Smith”). For the reasons set forth herein, the Motion for Summary Judgment
is GRANTED.

I. FACTUAL BACKGROUND

The facts leading up to this lawsuit were summarized in my previous decision and I

incorporate them herein:

This case began when the Smiths’ dog, Millie, attacked and injured a
neighboring dog and its owner on March 16, 2015. Defendant Pepper, an animal
control officer employed by KCSPCA, went to the Smiths’ residence to investigate
the incident. No one was home at the time so Defendant Pepper left a note on the
Smiths’ door. Defendant Pepper later spoke with Mr. Smith by phone. Mr. Smith
requested that any further conversation take place with he and his wife’s attorney
present. On March 18, 2015, Defendant Palacio, an animal control officer employed
by KCSPCA, contacted Mr. Smith despite his earlier request that his attorney be
present for any conversations. On March 19, 2015, Defendant Palacio again
contacted Mr. Smith despite knowing he had asked that all conversations take place
with his attorney present. On March 19, 2015, Defendant Warburton, an animal
control officer employed by KCSPCA, determined that Millie was a dangerous dog
and had to be seized. The Smiths allege that Defendants Warburton and Palacio
contacted the Savannah Animal Hospital and pressured the hospital staff to prepare
a report that made the incident and Millie look more vicious and dangerous than it
or she was.

On March 19, 2015, someone from Defendant KCSPCA called the Smiths
and told them that they would be at their home at 8:00 a.m. the next day to seize
Millie. No one at Defendant KCSPCA advised the Smiths’ attorney that they were
going to seize Millie. On March 20, 2015, Defendants Palacio and Hulse, an animal
control officer employed by KCSPCA, called Mrs. Smith despite her request that all
conversations take place with her attorney present and informed her they would be
arriving later than scheduled to seize Millie. The Smiths’ attorney called Defendant
Palacio and reminded him that he represented the Smiths and that the Smiths would
voluntarily quarantine Millie. Defendant KCSPCA told the Smiths’ attorney that they
still intended to seize Millie. The Smiths’ attorney advised Defendant KCSPCA that
there would be no voluntary surrender of Millie and that a search warrant would be
necessary. Defendant KCSPCA, without the help of the Delaware State Police or the

Attomey General’s office, applied for and was granted a search warrant to seize
Millie by the Justice of the Peace Court. According to the Smiths’ complaint,
Defendant Galloway, an animal control officer employed by KCSPCA, arrived at the
Smiths’ residence with a Delaware State Police officer and executed the search
warrant on March 20, 2015. The Smiths stated that they complied with the search
warrant and turned Millie over to the Defendants. While Millie was under the
Defendants’ control, the Smiths allege that the Defendants (1) did not give Millie an
examination within 72 hours of seizing her, (2) failed to administer the proper
vaccines to her, and (3) prevented the Smiths’ veterinarian from examining Millie.
On March 25, 2015, in response to Millie’s seizure, the Smiths filed an emergency
writ of prohibition with the Superior Court claiming that the Defendants had no legal
authority to obtain a search warrant and seize Millie. The writ of prohibition was
dismissed as moot since Millie had been returned to the Smiths by the time the
Superior Court heard the writ of prohibition

On March 31, 2015, the Defendants, without any assistance from the
Delaware State Police or the Attomey General’s office, sought and obtained arrest
warrants from the Justice of the Peace Court for the Smiths. Defendant Pepper filed
an affidavit of probable cause for the arrest of John Smith on charges of (1)
maintaining a dangerous animal, and (2) hindering prosecution. Defendant Pepper
filed an affidavit of probable cause for the arrest of Nancy Smith on charges of (1)
maintaining a dangerous animal, and (2) owning a dog that, while at large, bit a
person. On April 3, 2015, the Smiths turned themselves in to the Justice of the Peace
Court, where they both entered not guilty pleas. Following their not guilty pleas, the
Smiths went to Troop 4 of the Delaware State Police. At Troop 4, the Smiths were
fingerprinted, processed, and photographed by Defendant May, who is an animal
control officer employed by KCSPCA. The charges against Mr. Smith were later
dropped by the Department of J ustice. Mrs. Smith pled guilty to one count of having
a dog at large. At all times relevant hereto the Smiths allege that Defendant KCSPCA
was acting under the color of state law pursuant to its contract with Sussex County
Council to provide animal control services in Sussex County, Delaware. The Smiths
allege that the Defendants obtained the arrest warrant in retaliation for them (1)
challenging their authority to seize Millie, (2) asserting their right to have an attorney
present for any conversations with them, and (3) sending a veterinarian to check on
Millie. The Smiths allege they incurred $3,913.50 in attomeys’ fees and $479.73 in
veterinarian bills due to the unconstitutional actions of the Defendants. The Smiths
now seek damages based on the Defendants’ conduct in seizing Millie and for their
arrest and criminal prosecution.2

2 Smith v. Kent Cty. Soc ’yfor the Prevention ofCruelty to Animals, Inc., 2016 WL
5404097, at **1-2 (Del. Super. Ct. Sept. 28, 2016).

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The parties have since stipulated to the dismissal of Defendant May.

II. STANDARD OF REVIEW

This Court will grant summary judgment only when no material issues of fact exist, and the
moving party bears the burden of establishing the non-existence of material issues of fact.3 Once the
moving party has met its burden, the burden shifts to the non-moving party to establish the existence
of material issues of fact.4 Where the moving party produces an affidavit or other evidence sufficient
under Superior Court Civil Rule 56 in support of its motion and the burden shifts, the non-moving
party may not rest on its own pleadings, but must provide evidence showing a genuine issue of
material fact for trial.5 lf, after discovery, the non-moving party cannot make a sufficient showing
of the existence of an essential element of his or her case, summary judgment must be granted.6 If,
however, material issues of fact exist, or if the Court determines that it does not have sufficient facts
to enable it to apply the law to the facts before it, summary judgment is inappropriate.7

The Court will not engage in speculation and conjecture8 However, where “evidence is

merely colorable, or is not significantly probative, summary judgment may be granted.”9 Finally, “a

3 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).

4 ld. at 681.

5 Super. Ct. Civ. R. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

6 Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991); Celotex Corp., supra.

7 Ebersole v. Lowengrub, 180 A.2d 467, 471 (Del. 1962).

8 In re Asbestos Litig., 509 A.2d 1116, 1118 (Del. Super. Ct. 1986).

9 Stayton v. Clariant Corp., 2014 WL 28726, at *2 (Del. Jan. 2, 2014) (citation omitted).

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plaintiff’ s testimony must be substantiated by direct evidence found in the record.”‘°
III. DISCUSSION
A. Summary of Remaining Claims

The following claims against the following individuals and entities survived Defendants’
Motion to Dismiss and the dismissal of Defendant May:
1) Intentional infliction of emotional distress against Defendant Galloway, Defendant Hulse,
Defendant Warburton, Defendant Palacio, Defendant Pepper, Defendant Usilton, Defendant Agnew,
and Defendant KCSPCA;
2) False arrest and false imprisonment against Defendant Pepper and Defendant KCSPCA;
3) Malicious prosecution against Defendant Pepper and Defendant KCSPCA; and
4) Violation of 42 U.S.C. § 1983 against Defendant Galloway, Defendant Hulse, Defendant
Palacio, Defendant Pepper, and Defendant KCSPCA.
B. The Power to Swear Out Arrest and Search Warrants

It is undisputed that Smith turned himself into the authorities after Defendant Pepper
obtained a warrant for his arrest. Although it is less clear Whether Smith voluntarily surrendered
Millie to Defendant KCSPCA, for the purposes of this motion, l will assume Smith surrendered his
dog pursuant to the search warrant obtained by Defendant Galloway. Therefore, underlying almost
all of the surviving claims is the question of whether an animal control officer (“ACO”) possesses
the power to swear out arrest and search warrants and, if so, to what extent. Defendants assert it is

settled Delaware law that ACOs have the legal authority to swear out arrest and search warrants.

10 Addison v. East Side Charter Sch. 0f Wilmington, Inc., 2014 WL 4724895, at * 2 (Del.
Super. Ct. Sept. 19, 2014) (citation omitted).

Smith strongly contests Defendants’ position, and argues any person swearing out an arrest or search
warrant must, in fact, have attended the police academy and be a certified police officer. For the
reasons set forth below, I conclude that an ACO has the power to swear out arrest and search
warrants so long as the arrest and search warrants concern the enforcement of animal welfare laws
of the State of Delaware. Although l am convinced the statutes and case law establish an ACO’s
authority to swear out warrants as part of his official duties, in this case and as will be discussed
further in the context of Smith’s § 1983 claim, the ACOs are also entitled to qualified immunity as
to the search warrant obtained for Millie and the arrest warrant obtained for Smith.

Delaware’s animal control welfare laws have been amended since the incident at the center
of this litigation occurred. lt is now clear under the Delaware Code that ACOs have the power “to
investigate, search, seize, detain and arrest when investigating and enforcing animal cruelty and
fighting, dog control, or dangerous animal laws.”‘l As l noted in my decision on the Defendants’
Motion to Dismiss, in 2015, however, the law Was less clear-cut. Nevertheless, the KCSPCA was
responsible for “the enforcement of all laws which are enacted for the protection of dumb animals.”12
“Enforcement” is defined by Black’s Law Dictionary as, “The act or process of compelling

compliance with a law, mandate, command, decree, or agreement.”13 The Code also provided that

an ACO “shall seize and impound a dog suspected of being dangerous or potentially dangerous”

ll 16 Del. C. § 3031F(e). The laws relating to animal welfare are now codified at 16 Del.
C. §§ 3001F - 3081F.

12 3 Del. C. § 7902 (repealed 2016).
13 Black’s Law Dictionary (10th ed. 2014).

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under particularized circumstances.14 Furthemiore, the Code decreed ACOs had authority to execute
arrest warrants related to animal welfare laws:

Any warrant of arrest, or other process, issued under or by virtue of the several laws

in relation to cruelty to animals may be directed to and executed by any agent so

appointed by either the Delaware or Kent County Society for the Prevention of

Cruelty to Animals of this State.15

The Attomey General for the State of Delaware has also acknowledged the powers held by
ACOS in two opinions While the opinions do not specifically address the right of an ACO to apply
for and swear out warrants, the language used by the Attomey General is instructive. The Attomey
General observes that KCSPCA is “specifically empowered by a state government entity... to make
investigations and to enforce all of Delaware’s animal anti-cruelty laws...”16 In a supplemental
decision regarding the same issue, the Attomey General deduces that KCSPCA is “empowered to
undertake regulatory functions of the State and conduct investigations.”17 In concluding KCSPCA
has the power to investigate, the Attomey General notes, “The mandate to enforce necessarily
implies a corresponding duty to make investigations In other Words, authority to enforce cannot be
exercised without authority to make investigations.”18 The same analysis applies here: KCSPCA’s

charge to enforce the animal welfare laws necessitates an ACO’ s ability to swear out warrants in that

context.

14 9 Del. C. § 922(a) (since amended and currently codified at 16 Del. C. § 3073F)
(emphasis added).

15 3 Del. C. § 7904 (repealed 2016).
16 Dep. Op. Atty. Gen. 12-IIB05 (Del. A.G.), found at 2012 WL 1244481.
17 Del. Op. Atty. Gen. 12-IIB08 (Del. A.G.), found at 2012 WL 2904209.

18 Id. n. 1 (emphasis added).

Tuming to case law, an ACO’s power to apply for search warrants has not been directly
addressed previously. However, I conclude existing case law further bolsters an ACO’s ability to
swear out warrants

Smith cites Christopher v. Sussex County19 for the proposition that only certified police
officers can enforce the law. That case presented a broader question than the one currently before
the Court. In Christopher, the sheriff for Sussex County sought a declaratory judgment stating the
sheriff had arrest powers in criminal cases “as a core or fundamental tool to perform his
constitutional designation as a ‘ conservator of the peace. ’ ”20 Christopher is distinguishable from this
case. The sheriff claimed arrest powers under common law and argued the General Assembly lacked
the constitutional authority to modify or limit that common law power. As noted above, Defendants
assert their actions were authorized by statute. In State v. Pettingill, the Court of Common Pleas
noted the New Castle County Code had provided ACOs could exercise police powers in discharging
their duties21 Similarly, pursuant to statute, the Department of Correction and Department of Natural
Resources and Environmental Control give its officers the authority to exercise police powers in
executing their official duties22 In other words, officers can possess and exercise police powers even

though they are not certified police officers under Title 11.

19 77 A.3d 951 (Del. 2013).
20 Id. at 952.
21 2004 WL 7325668, at *1 (Del. Ct. Com. Pl. Nov. 22, 2004).

22 11 Del. C. § 4321 (Department of Correction); 20 Del. C. § 8003A (Department of
Natural Resources and Environmental Control).

Historically, even lay persons have been able to obtain warrants from magistrates.23 Although
exercised rarely, that power extends even today, as evidenced by a more recent Delaware case,
Lengle v. Dukes.24 In Lengle, the complainant swore out an arrest warrant before a magistrate for his
neighbor for criminal trespass

As a matter of practical effect, ACOs must have the power to swear out warrants or otherwise
add an unnecessary administrative step by requesting a law enforcement officer to appear before a
Justice of the Peace and swear to the veracity of the information to which only the ACO was privy.
The bottom line is that an ACO’s job is to know the animal welfare laws; respond to and investigate
situations where an animal’s welfare is in danger; and, when necessary, take appropriate action to
enforce the animal welfare laws The job is, in fact, the equivalent of a police officer’s job with
respect to the investigation of and enforcement of the traffic and criminal codes.

Against this legal landscape, I will examine the merits of Smith’s remaining claims
C. Intentional Infliction of Emotional Distress

A claim for intentional infliction of emotional distress (“IIED”) requires proof that the
defendant intentionally engaged in extreme or outrageous behavior that caused the plaintiff severe
emotional distress.25 Outrageous conduct is “conduct that exceeds the bounds of decency and is

regarded as intolerable in a civilized community.”26 “Generally, the case is one in which the

23 See, e.g., Brown v. Selfridge, 224 U.S. 189, 190 (1912) (a case arising out ofa
prosecution, which was initiated by a private citizen who swore out a search warrant).

24 1982 Del. Super. LEXIS 757 (Del. Super. Ct. June 9, 1982).
25 Hunt ex rel. DeSombre v. State ofDelaware, 69 A.3d 360, 367 (Del. 2013).
26 Id. (intemal quotation marks and citation omitted).

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recitation of the facts to an average member of the community would arouse his resentment against
the actor, and lead him to exclaim, ‘Outrageous! ”’27 The Court must determine, in the first instance,
whether the defendant’s conduct may be considered so extreme and outrageous to allow recovery.28
On a motion for summary judgment, the defendant must demonstrate that, even when the facts are
viewed in a light most favorable to the plaintiff, he is entitled to prevail as a matter of law.29

Smith argues that, individually and in aggregate, Defendants’ conduct in contacting Smith,
arresting Smith, seeking a gag order from the Court, pressuring Millie’s veterinarian to alter records,
and in refusing to care for Millie properly constituted outrageous behavior. I disagree and find that
recovery cannot be permitted under the facts of this case.

At this point in the litigation, the material witnesses have been deposed. Discovery has
fleshed out the factual background and informs my analysis

Millie attacked and injured Smith’s neighboring dog, Spike, and Spike’s owner on March
16, 2015. Subsequently, Defendant KCSPCA initiated an investigation In so doing, Defendant
Pepper contacted Smith. Smith requested legal representation be present for further conversations
Defendant Pepper testified at her deposition that she “told him that [she] had to come check for the
rabies vaccination, make sure that [Millie] was up-do-date on her rabies. . . .”3° Defendant Pepper tried

to explain the quarantine procedure and Smith asserted that the ACOs would need to speak to his

27 Mattern v. Hudson, 532 A.2d 85, 86 (Del. Super. Ct. 1987) (intemal quotation marks
and citation omitted).

28 Hunt, 69 A.3d at 367.
29 Mattern, 532 A.2d at 86.

30 Defendants’ Brief In Support of Motion For Summary Judgment, Exhibit F, at p. 55
(hereinafter, “Def. Br., Ex. _, at p. _”).

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attomey. Defendant Pepper reported back to her boss, Defendant Palacio, who stated she would
contact Smith’s attomey. The following day, Defendant Pepper was not scheduled to work. She
asked Defendant Palacio to follow up on a suspected dog bite case. Defendant Palacio contacted
Smith to set up a meeting. Smith gave Defendant Palacio the name and number of his attomey, John
Brady. Defendant Palacio then called Mr. Brady and left a voice message. While Defendant Palacio
awaited a return call from Mr. Brady, she continued her investigation and visited with Spike’ s owner,
Michelle Keck (hereinafter, “Keck”), to document Keck’s version of events Defendant Palacio
inspected the wound Keck allegedly suffered at the hands of Millie and took pictures of it for her
records Keck wrote out a statement for Defendant Palacio. Defendant Palacio then interviewed
neighbors, the Moodys, who witnessed the incident. The Moodys told Defendant Palacio that they
witnessed Millie and Spike fighting but they did not know what happened or how the altercation
took place.3l

Defendant Palacio then proceeded to Savannah Animal Hospital in Lewes, Delaware, to
review Spike’s rabies vaccination history, observe Spike, and check on the severity of Spike’s
injuries.32

After consulting with Defendant Usilton, Defendant Warburton decided Millie would have
to be quarantined as a “dangerous” or “potentially dangerous” dog due to the severity of Millie’s

attack on Spike.33 An animal suspected of being a dangerous or potentially dangerous dog cannot be

31 Def. Br., Ex. G, at pp. 108-109.

32 “I collected a vet report on the severity of the injuries and the type of procedure they
did to repair Mrs. Keck’s dog. And then I obtained rabies information on her dog.” Def. Br., Ex.
G, at p. 100.

33 Def. Br., Ex. H, at pp. 75-77.

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home-quarantined. In other words, the nature of Defendant KCSPCA’s investigation evolved as the
officers acquired additional information about the severity of Spike’ s injuries The ACOS now sought
to remove Millie from the Smith home in accordance with their statutory authority.34 When they
explained to Smith their need to impound Millie, Smith advised the officers that, pursuant to advice
of legal counsel, they needed to obtain a warrant. The ACOs did so. Millie was taken to the
KCSPCA shelter (“the Shelter”) and held, pending a hearing before the dog control board on her
classification

Again, Smith argues the Defendants’ actions, taken collectively, give rise to intentional
infliction of emotion distress I find no rational mind could conclude the facts, up to this point,
individually or collectively, establish conduct warranting the exclamation, “Outrageous!” The
officers were merely conducting an investigation into a dog bite case, as Was their responsibility
under the Delaware Code. Therefore, Smith must show that the Defendants’ actions from this point
forward support the submission of his IIED claim to a jury.

Once Millie was taken to the Shelter, Smith argues she was denied appropriate medical
treatment. Smith also posits someone at the KCSPCA tried to influence a veterinarian at Savannah
Animal Hospital to falsify Millie’s records in an effort to portray her as an aggressive dog. Smith
asserts that KCSPCA sought a gag order from the Justice of the Peace Court and this action caused

him emotional distress Finally, Smith cites his arrest allegedly without probable cause in support

34 Section 922 of Title 9 of the Delaware Code provided, in relevant part: “An animal
control constable or dog warden shall seize and impound a dog suspected of being dangerous or
potentially dangerous when the warden has reasonable cause to believe that the dog has engaged
in 1 or more of the following: (2) Killed or inflicted serious physical injury upon a domestic
animal, provided the domestic animal was on the property of its owner or under the immediate
control of its owner...” (since amended and currently codified at 16 Del. C. § 3073F).

12

of his IIED claim, l conclude none of these acts or omissions, neither individually nor collectively,
arise to the level of outrageous behavior that would entitle Smith to recovery.

KCSPCA unfortunately failed to administer vaccinations it was required to administer to
Millie within the prescribed time f`rame.35 Millie was quarantined on March 20 after she attacked
another dog on March 16. She was held in State custody pending a hearing on her classification as
a dangerous dog on April 13, 2015. At the time Millie was quarantined, Defendant Palacio had been
able to confirm with Savannah Animal Hospital that Millie was current on all of her vaccinations
Millie was eligible for vaccination pursuant to 16 Del. C. § 3002F(b) at the time her quarantine
period ended, on March 25. Millie was ultimately vaccinated as required on April 8. In fact, Smith
now claims she was over-vaccinated and this over-vaccination left her susceptible to health
problems Smith testified Millie was returned to them with a case of pneumonia, which he claims
can be traced to the Defendants’ failure to vaccinate Millie within seventy-two hours, and anxiety,
which can be traced to Millie’s experience at the kennel. Notably, there has been no medical
testimony, records, or bills for treatment introduced to support this claim.

At the time unaware that Millie had not been vaccinated as required, Smith sent an
independent veterinarian to inspect Millie at the Shelter. This veterinarian was not permitted to
examine Millie. Defendant Usilton testified Defendant Warburton informed him that an outside
veterinarian wanted to see Millie. “I asked if it was Millie’s regular veterinarian and she said no.

Then l said there’s no reason for her to see her. We have our own veterinarian on staff who would

33 Defendant KCSPCA was found to have violated 16 Del. C. § 3002F for failing to
vaccinate timely Millie. Smith’s Answering Brief, Exhibit C, at p. 15 (hereinafter, “Smith Br.,
Ex. _, at p. __”).

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be happy to look at anything that Millie would have.”36 Defendant Usilton testified that no one had
sent an independent veterinarian to inspect an animal at the Shelter before and that he likely would
have permitted Millie’s regular veterinarian to see her. But, Defendant Usilton reasoned, there was
policy in place pursuant to which any medical ailments of Millie’s would be attended. All told,
Millie spent less than a month in State custody.

Viewing the facts in a light most favorable to Smith, neither the inaction by Defendant
KCSPCA to vaccinate Millie within seventy-two hours of the end of her quarantine nor the alleged
over-vaccination resulted in a diagnosable health problem for either Millie or Smith. Similarly,
Smith has failed to show how the failure to permit an independent veterinarian to examine Millie
resulted in distress to either the dog or her owner. The alleged distress caused to Smith as a result
of the Shelter’ s actions and inaction was not “so severe that no reasonable person could be expected
to endure it.”37 Millie’s treatment at the Shelter is not sufficient to sustain a claim for intentional
infliction of emotional distress

Similarly, Smith’s argument that someone at the KCSPCA attempted to influence the staff
at Savannah Animal Hospital to alter Millie’s records is without merit. The evidence shows that
someone, to date, unidentified, contacted Savannah Animal Hospital and left a message, asking for
a copy of Millie’s previous bite report. Dr. Christine Clark returned the officer’s call and told the

officer that there was no bite report because Millie had been the victim not the aggressor in the

36 Def. Br., Ex. M, at p. 86.

37 Tilghman v. Delaware State Univ., 2012 WL 3860825, at *5 (Del. Super. Ct. Aug. 15,
2012) (intemal quotation marks and citations omitted).

14

previous incident.38 No one at Savannah Animal Hospital created a bite report for the previous
incident. Assuming, without deciding, pressure from an ACO was applied, that pressure was not
effective. I find that the inquiry from KCSPCA as to the previous incident does not rise to the level
of conduct that could be considered outrageous lt does not support an IIED claim.

Smith’s argument that the request for a gag order from the Justice of the Peace Court caused
him distress simply defies logic. A court imposes a gag order in order to keep parties from litigating
their case outside of the courtroom. In this case, Defendant KCSPCA asked for a gag order. The
Justice of the Peace granted the request after Smith’s attorney asked that the gag order apply to both
sides of the case, The purpose of a gag order is to protect the parties’ “right to have the merits of
[the] case determined by a fair and impartial jury which will decide the issues solely upon the
evidence presented at trial.”39 Smith’ s contention that the Defendants’ request for order that the case
not be tried in the press or on social media was “outrageous” is completely without merit.

With respect to Smith’s claim that his unlawful arrest supports an IIED claim, l refer back
to my earlier discussion of the authority of the ACO’s to swear out arrest warrants A Justice of the
Peace issued an arrest warrant for Smith on two charges: maintaining a dangerous animal and
hindering prosecution Smith contends the Defendants’ conduct in obtaining and executing the
warrants was outrageous I have already concluded that the Defendants’ conduct in obtaining and

executing the search warrant for Millie was not outrageous as a matter of law. l likewise conclude

33 Def. Br., Ex. T, at pp. 7-11.
39 Sokolove v. Marenberg, 2013 WL 6920602, at * 2 (Del. Super. Ct. Dec. 20, 2013).

15

the same is true of the Defendants’ conduct in obtaining the arrest warrant for Smith.40 The evidence
shows Smith owned Millie, a dog that had attacked another do g, Spike, in such a fashion that Spike
required surgery. The undisputed evidence also shows that Smith was, perhaps understandingly so,
frustrated with the proceedings and reluctant to cooperate with the ACOS, characterizing their
investigation as a “witch hunt.”41 At Smith’s deposition, counsel reviewed the affidavit of probable
cause in support of the arrest warrant, line by line, at his deposition. Smith did not challenge the
underlying finding of probable cause for the maintaining a dangerous animal charge. Although he
disputed certain characterizations of his actions with regard to the hindering prosecution charge, he
affirmed the factual substance of the affidavit: he was suspicious of the investigation and wary of
cooperating with the ACOs. As such, Defendant Pepper had probable cause to seek an arrest warrant
for Smith for maintaining a dangerous animal and hindering prosecution “In Delaware, it has been
found that when police had probable cause to arrest a plaintiff, their conduct could not be found
extreme or outrageous.”42 To the extent Smith argues he was targeted, for lack of a better word, by
the investigating officers, “liability does not extend to mere indignities, annoyances, petty

oppressions, or other trivialities. . . .”43

40 Defendant Pepper did not execute the arrest warrant. Smith turned himself in to the
Justice of the Peace Court on April 3, 2015.

41 Def. Br., Ex. E, at p. 149.

42 Smith v. Delaware State Police, 2014 WL 3360173, at *5 (Del. Super. Ct. July 8, 2014)
(citation omitted).

43 Jackson v. Walgreens Corp., 2013 WL 2145938, at *3 (Del. Super. Ct. May 15, 2013)
(intemal quotation marks and citation omitted).

16

As Smith all but acknowledges, he suffered no separate or discrete injury as a result of the
his arrest for hindering prosecution vis a vis his arrest for maintaining a dangerous animal. I also
note, in the context of his claim of IIED, Smith makes much of the fact that he wished to have an
attorney present for conversations with the ACOs. The record reflects the ACOS did, in fact, honor
his request and contacted Mr. Brady. Indeed, the reason the ACOs obtained a search warrant in the
first place, instead of seizing Millie as they were authorized to do by statute, Was at the request of
Smith’s legal counsel.

I find there are no issues of material fact as to the ACOs’ conduct during the course of their
investigation and that it does not rise to outrageous conduct as a matter of law. Defendant Galloway,
Defendant Hulse, Defendant Warburton, Defendant Palacio, Defendant Pepper, Defendant Usilton,
Defendant Agnew and Defendant KCSPCA are all entitled to summary judgment on Smith’s claim
of IIED.

D. False Arrest and False Imprisonment

Smith alleges the Defendants arrested him against his will and without any legal authority

to do so. “The tort of false arrest differs from the tort of false imprisonment only in terminology.”44

A plaintiff must show (a) a restraint that is both (b) unlawful and © against his will.45 The Delaware

Supreme Court has elaborated:

44 Hunt, 69 A.3d at 368 (intemal quotation marks and citation omitted).

45 Id.

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The restraint may be accomplished by physical force, by threats of force or

intimidation or by the assertion of legal authority. False imprisonment or false arrest

is generally defined as the deprivation of the liberty of another without his consent

and without legal justification Legal justification is held to be the equivalent of legal

authority and is judged by the principles applicable to the law of arrest.46

When a person has been lawfully arrested by proper legal means, even if the person is
ultimately acquitted, “the arrest is not ‘false’ and an action for false imprisonment will not lie.”47 As
l observed previously, the warrant for Smith’s arrest complied with the formal requirements of the
law and was valid. Thus, “the arrest of the plaintiff is legally authorized.”48 The ACOs had the legal
authority to swear out an arrest warrant for charges related to the enforcement of Delaware’s animal
welfare laws Their actions were further validated by the Justice of the Peace who signed off on the
warrant. “A judicial officer’s finding of probable cause is a complete defense to state law tort claims
for false imprisonment.”49 Specifically, the chain of causation for an officer’s unlawful arrest has
been broken by the intervening exercise of the independent judgment of a magistrate50 Under these
circumstances, Defendant Pepper and Defendant KCSPCA are entitled to summary judgment as a
matter of law on Smith’s claims of false arrest and false imprisonment

E. Malicious Prosecution

There are six elements in an action for malicious prosecution: (1) a prior initiation of some

46 Id. (intemal quotation marks and citation omitted).

47 Boula'en v. Turner, 2007 WL 3378662, at *4 (Del. Super. Ct. Apr. 12, 2007) (intemal
quotation marks and citation omitted).

43 Ia'. (intemal quotation marks and citation omitted).
49 Tuppeny v. City of Wilmington, 2015 WL 1383864, at * 6 (D. Del. Mar. 24, 2015).
39 Sekscinski v. Harris, 2006 WL 509541, at * 5 (Del. Super. Ct. Jan. 18, 2006).

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regular judicial proceedings against the now-plaintiff; (2) such former proceedings must have been
initiated by the now-defendant; (3) the former proceedings must have terminated in favor of the now-
plaintiff; (4) the now-defendant must have harbored malice in instituting the former proceedings; (5)
there was an absence of probable cause in the former proceedings; and (6) the now-plaintiff suffered
injury or damage resulting from the former proceedings.31 The tort of malicious prosecution has been

“historically disfavored” in Delaware, in favor of other tools at the Court’s disposal to address bad

faith litigation52

Because the Court does not want to discourage the prosecution of alleged
criminal actors, “[i]t is only when one person prosecutes another with malice and
without probable cause that the law makes him liable for his actions.” Elements of
both malice and probable cause are required. F or the purpose of malicious
prosecution, malice has been defined as an act “done with a wrongful or improper
motive or with a wanton disregard of the rights of that person against whom the act
is directed.” Actual spite, ill will or a grudge do not necessarily establish malice.

Similarly, probable cause for this purpose has been defined as “a reasonable
ground for suspicion or belief, supported by circumstances sufficiently strong in
themselves as to warrant a reasonably cautious and prudent person in the belief that
the person accused is guilty of the offense with which he is charged. The fact that the
accused was ultimately acquitted of the underlying charges “has nothing to do with
the question of want of probable cause.” The existence of probable cause is
determined at the time the underlying proceedings were commenced.33

Viewing the evidence most favorably for Smith, there was probable cause for the ACOs to
conclude that Smith was unwilling to cooperate with their investigation and was stymying their

ability to enforce the animal welfare laws - i.e., he was hindering prosecution But, in the event

31 Stia'ham v. Diamond State Brewery, lnc., 21 A.2d 283, 284 (Del. Super. Ct. 1941).

32 Blue Hen Mech., Inc. v. Christian Bros. Risk Pooling Trust, 117 A.3d 549, 551 (Del.
2015).

33 Sekscinski, 2006 WL 509541, at * 2 (citations omitted).

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Defendant Pepper did not have probable cause to Support the charge of hindering prosecution, Smith
has failed to introduce evidence that would support a jury’ s finding that Defendant Pepper acted with
actual malice in seeking the warrant for Smith’s arrest for hindering prosecution At best, perhaps
he could convince a jury that Defendant Pepper acted out of frustration But this frustration does not
give rise to a claim of malice.

Defendant Pepper and Defendant KCSPCA are entitled to summary judgment as a matter of
law on Smith’s claim they maliciously prosecuted him.
F. 42 U.S.C. § 1983
1. Of`ficers iii their Official Capaei.ties

Smith reasserts all of the aforementioned claims as violations of his constitutional rights in
derivation of 42 U.S. C. § 1983. l find Defendant Galloway, Defendant Hulse, Defendant Palacio,
and Defendant Pepper, acting in their official capacities, are protected by the doctrine of qualified
immunity.

The Delaware Supreme Court recently discussed the doctrine of qualified immunity in the
Hunt decision, cited supra, wherein the Court relied heavily upon the United States Supreme Court’ s
opinion in Saucier v. Katz. ln Saucier, the United States Supreme Court held:

In a suit against an officer for an alleged violation of a constitutional right, the

requisites of a qualified immunity defense must be considered in proper sequence...

The privilege is “an immunity from suit rather than a mere defense to liability; and

like an absolute immunity, it is effectively lost if a case is erroneously permitted to
go to tria .”

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A court required to rule upon the qualified immunity issue must consider,
then, this threshold issue: Taken in the light most favorable to the party asserting the
injury, do the facts alleged show the officer’s conduct violated a constitutional ri ght?

[I]f` a violation could be made out on a favorable view of the parties’ submission, the
next, sequential step is to ask whether the right was clearly established. This inquiry,
it is vital to note, must be undertaken in light of the specific context of the case, not
as a broad general proposition...

[We have emphasized] “that the right the official is alleged to have violated must
have been ‘clearly established’ in a more particularized, and hence more relevant,
sense: The contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” The 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.

If the law did not put the officer on notice that his conduct would be clearly unlawful,
summary judgment based on qualified immunity is appropriate54

l acknowledge that the General Assembly significantly tweaked the animal welfare laws and,
by extension, the law enforcement powers of ACOs, with amendments to the Delaware Code enacted
in 2016. Whether those changes were made to clarify the law as the General Assembly believed it
to exist in 2015 or to grant ACOs additional powers is unclear. Nevertheless, to the extent an ACO’s
ability to enforce the animal welfare laws in 2015 was ambiguous, Defendants are protected in this

case by the doctrine of qualified immunity. Defendant Hulse testified that his training included the

34 Saucier v. Kaiz, 533 U.S. 194, 200-02 (2001) (citations omitted). ln a subsequent case,
Pearson v. Callahan, 555 U.S. 223 (2009), the United States Supreme Court held that courts
must no longer follow the sequence test put forward in Saucier in all cases However, I have
concluded the test’s structure is helpful in this case.

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so-called “law book” with the relevant animal welfare laws The book was updated with amendments
to the laws Defendant Hulse himself trained other ACOs using the law book. ACO instruction also
emphasized that an ACO needed a police officer to accompany him to execute a warrant. Defendant
Galloway testified that she had received in-house training on the process for obtaining and executing
search warrants Defendant Palacio acknowledged there is a line between charges ACOs are
authorized to investigate in their official capacity and those they are not. Specifically, she testified
that, as an ACO, she would not conduct a traffic stop, even if she witnessed a dog in danger in the
vehicle.

Assuming Defendants did not have actual authority to swear out search and arrest warrants
for violations of Delaware’s animal welfare laws, Smith is able to show that Defendants’ conduct
violated his constitutional right to be free from unlawful search and seizures However, Smith is
unable to show this right was clearly established: that is, he is unable to establish that it would have
been clear to a reasonable ACO - charged with enforcing the animal welfare laws; trained on the
process of obtaining and executing warrants for violations of the animal welfare laws; and authorized
by statute to seize animals under certain circumstances without a warrant - that his conduct was
unlawful in seeking to obtain the search warrant for Millie and the arrest warrant for Smith for
violations of the animal welfare laws and the related charge of hindering prosecution Summary
judgment is appropriate on all of the § 1983 claims with regard to the previously identified ACOs.
2. Defendant KCSPCA

Smith also seeks to hold Defendant KCSPCA accountable for the ACO’s alleged violations
of his constitutional rights In Monell v. Department of Social Services, the United States Supreme

Court held that local governing body or agency “can be sued directly under § 1983 for monetary,

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declaratory, or injunctive relief where... the action that is alleged to be unconstitutional implements
or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated
by that body’s officers.”35 However, a governing body or agency:
cannot be liable for the constitutional torts of its employees; that is, it cannot be held
liable on a respondeat superior theory. Rather, liability will attach only where the
plaintiff establishes the [agency] engaged in a “policy or custom” that was the
“moving force” behind the deprivation of the plaintiff s ri ghts.36
Here, Smith does not “designate any specific facts to raise a triable issue of fact as to the
existence of any policy, custom, or decision that led to the purported violation of his rights under the
federal constitution.”37 As such, Defendant KCSPCA is also entitled to summary judgment as a
matter of law on Smith’s § 1983 claims
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgrnent is GRANTED as to
all of Smith’s the remaining claims
IT IS SO ORDERED.
Very truly yours,
/s/ E. Scott Bradley
E. Scott Bradley

ESB/tll

oc: Prothonotary

33 436 U.S. 658, 690 (1978) (footnote omitted).

36 Strong v. Dunnirig, 2013 WL 3481452, at *4 (Del. Super. Ct. June 27, 2013) (citations
omitted).

37 Id., at *5.

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