Reams v. Irvin

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-12023 MARCH 9, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 06-01511-CV-RWS-1

EDNA S. REAMS,

Plaintiff-Appellant,

versus

TOMMY IRVIN, individually and in his
official capacity as Commissioner of
the Georgia Department of Agriculture,
MELINDA DENNIS,
LAURA FOKES,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(March 9, 2009)
Before BIRCH and BARKETT, Circuit Judges, and KORMAN,* District Judge.

BIRCH, Circuit Judge:

Edna Reams (“Reams”) appeals the district court’s grant of summary

judgment on qualified immunity grounds in favor of Tommy Irvin, Commissioner

of the Georgia Department of Agriculture (“GDA”); Melissa Dennis, Director of

the Equine Division of the GDA; and Laura Fokes, an equine inspector employed

by the state of Georgia (collectively, “Appellees”), in this 42 U.S.C. § 1983 civil

rights action arising out of Appellees’ impoundment of forty-nine of Reams’

equine. On appeal, Reams argues that Appellees were not entitled to qualified

immunity because their failure to provide her with (1) an opportunity to be heard

prior to seizing her equines, (2) adequate notice of her right to and the procedures

for requesting a hearing, and (3) adequate post-deprivation process, violated her

clearly established due process rights. For the reasons that follow, we AFFIRM.

I. BACKGROUND 1

On 3 January 2006, Fokes obtained a warrant from the Macon County

*
Honorable Edward Korman, Senior United States District Judge for the Eastern District
of New York, sitting by designation.
1
Whether a defendant is entitled to qualified immunity is determined using the version of
facts most favorable to the plaintiff. See Bates v. Harvey, 518 F.3d 1233, 1239 (11th Cir.
2008). Viewing the record in this light “eliminates all issues of fact” and allows “the court . . . to
move to the question of whether the defendant committed the constitutional violation alleged in
the complaint without having to assess any facts in dispute.” Robinson v. Arrugueta, 415 F.3d
1252, 1257 (11th Cir. 2005).

2
Magistrate Court to inspect Reams’ family farm, located in Andersonville,

Georgia, to determine whether the equines Reams kept on her land were being

provided inadequate food and water in violation of the Georgia Humane Care for

Equines Act, O.C.G.A. § 4-13-1 (2008) (“the Act”).2 On 5 January 2006, Fokes

and Dennis, along with Henry Loper, a doctor of veterinary medicine (“DVM”)

and federal Veterinary Medical Officer (“VMO”) employed by the United States

Department of Agriculture as a field veterinarian, arrived at Reams’ farm to

execute the warrant. Dr. Loper determined that forty-six horses and three donkeys

were not being provided with adequate food and water. As a result of Dr. Loper’s

assessment, GDA officials impounded those forty-nine equines. Reams, who was

in Kansas when GDA officials executed the warrant, was not advised of her right

to challenge the impoundment.

During a 26 January 2006 conference with Dennis and Fokes, Reams

contested the impoundment and requested a hearing. Appellees did not at that time

advise Reams of her right to file a petition with the GDA pursuant to O.C.G.A. § 2-

2-9.1(d). Rather, Dennis insisted that Reams agree to a consent order, which

imposed fines in connection with the care of her horses during the impoundment

2
The Act makes it unlawful for the owner of any equine “[t]o fail to provide adequate
food and water to such equine,” or “[t]o fail to provide humane care for such equine.” O.C.G.A.
§ 4-13-3.

3
period and limited the number of equines Reams could keep on her farm.

Irvin subsequently issued an administrative order, citing Reams with failure

to provide adequate food, water, and/or humane care to the impounded equines,

directing her to reduce her herd to thirty equines, and assessing a fine of $74,000.

It was not until she received the administrative order that Reams was explicitly

notified of her right to a hearing. On 28 February 2006, Reams filed a Petition for

Agency Review with the GDA challenging the administrative order, including the

impoundment of her horses. After the GDA informed Reams that it would sell her

equines if she refused to sign the consent order, Reams filed an emergency petition

in Fulton County Superior Court to stay the sale of her equines pending the

administrative review. On 23 March 2006, the court issued an order staying the

sale of Reams’ horses and authorizing Reams to retrieve her horses from the

impound facility, so long as she provided a written assurance of adequate care and

posted a $47,360 bond for the impoundment costs. The order also permitted GDA

officials to access Reams’ property until the conclusion of her administrative

appeal in order to inspect the previously seized equines. At her own expense,

Reams retrieved her equines, whose condition, she alleged, had worsened during

their impoundment.

While her administrative action was still pending, Reams filed the instant

4
§ 1983 complaint in the United States District Court for the Northern District of

Georgia. On 31 July 2006, she filed a motion with the GDA to stay the

administrative proceedings pending the determination of her constitutional claims

in federal court. After a hearing on Reams’ petition for agency review, a GDA

hearing officer issued an initial decision dismissing Reams’ petition for lack of

jurisdiction. On 21 December 2006, Commissioner Irvin issued a final order

reversing and remanding on the jurisdictional issue but finding that Reams’

challenge to the initial seizure of her horses was time-barred because the seizure

occurred more than thirty days before she petitioned the agency for review on 28

February 2006. On 4 January 2007, Reams filed a petition in Fulton County

Superior Court seeking review of the GDA’s order disposing of her administrative

challenges and alleging that the GDA violated her procedural due process rights.

In July 2007, Appellees moved for summary judgment on Reams’ § 1983

complaint, arguing that (1) Reams failed to show that she was denied procedural

due process because a pre-deprivation hearing was impracticable, and (2) O.C.G.A.

§ 2-2-9.1(d), which allows an owner of equines to contest an impoundment or an

administrative order of the GDA disposing of impounded property, provided

constitutionally adequate post-deprivation process.

The district court granted the motion, finding that Reams failed to

5
demonstrate a constitutional violation and therefore, appellees were entitled to

qualified immunity. The court first found that pre-deprivation process was not

practicable because “[a]ffording an equine owner an opportunity to be heard prior

to impounding malnourished equines would . . . substantially impede a state’s

ability to enforce its laws respecting the humane treatment of equines.” R5-85 at

12. The court then weighed the competing private and state interests and found

that pre-deprivation process was not reasonable in this case because Georgia’s

interest in expeditious enforcement of the Humane Care for Equines Act

outweighed Reams’ interest in the temporary use of her equines between the time

of impoundment and the time of a hearing, and because a post-deprivation hearing

was unlikely to result in significant factual errors.

The district court further found that the post-deprivation procedures

provided for under Georgia law were adequate to correct any alleged procedural

deficiencies because they provided Reams with the opportunity to contest the

impoundment, the administrative order relating to the impoundment, and the fines

assessed for violation of the Act,3 and because Reams was entitled under the

Georgia Administrative Procedures Act to seek judicial review of GDA’s actions

3
The district court noted that the record contained no information regarding the nature or
resolution of Reams’ action in Superior Court challenging the GDA’s disposition of her
administrative claims, and that Reams did not allege that her state-court action was inadequate to
provide meaningful review of the GDA’s actions or administrative procedures.

6
in state court. This “judicial safety valve,” the district court concluded,

“foreclose[d] any constitutional challenge to the procedural adequacy of the

hearing-and-appeal procedures set forth in the [Act].” Id. at 15. Finally, the court

found that O.C.G.A. § 50-13-19 provided Reams with adequate notice of her

ability to challenge the deprivation at issue, and that she failed to show that the

alleged lack of a neutral decision-maker in the administrative process could not be

cured by a Georgia state court pursuant to § 50-13-19.4 Reams now appeals.

II. DISCUSSION

On appeal, Reams argues that the district court erred in finding that: (1) a

pre-deprivation hearing was not required; (2) statutory notice of a hearing right

was sufficient; and (3) the post-deprivation process was adequate to satisfy due

process. She asserts that because she demonstrated that GDA officials violated her

clearly established due process rights, the district court erred in concluding that

they were entitled to qualified immunity.

“We review the denial of summary judgment on qualified immunity grounds

de novo.” Cotton v. Jackson, 216 F.3d 1328, 1330 (11th Cir. 2000) (per curiam).

4
In addition to her procedural due process claim, Reams also alleged Fourth Amendment
and Equal Protection violations. Reams does not challenge the district court’s grant of summary
judgment in favor of Appellees on these claims and thus has abandoned them on appeal. See
North Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1217 n.4 (11th Cir. 2008)
(“[I]ssues not raised on appeal are abandoned.”).

7
“[Q]ualified immunity shields government officials who perform discretionary

functions from liability for civil damages as long as their conduct does not violate

clearly established statutory or constitutional rights.” Grayden v. Rhodes, 345 F.3d

1225, 1231 (11th Cir. 2003) (footnote omitted). In ruling upon the qualified

immunity issue, we must engage in a two-step analysis: (1) whether the facts

alleged, viewed in the light most favorable to the party asserting the injury, show

that the official’s conduct violated a constitutional right, and, if so, (2) whether the

right violated was clearly established. Saucier v. Katz, 533 U.S. 194, 201, 121 S.

Ct. 2151, 2156 (2001); see also Cotton, 216 F.3d at 1330.5

A. Right to Pre-deprivation Hearing

“The fundamental requirement of due process is the opportunity to be heard

‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424

U.S. 319, 333, 96 S. Ct. 893, 902 (1976) (quoting Armstrong v. Manzo, 380 U.S.

545, 552, 85 S. Ct. 1187, 1191 (1965)); Cryder v. Oxendine, 24 F.3d 175, 177

(11th Cir. 1994) (“Due process entitles an individual to notice and some form of

hearing before state action may finally deprive him or her of a property interest.”).

5
The Supreme Court recently held that “while the sequence set forth [in Saucier] is often
appropriate, it should no longer be regarded as mandatory.” Pearson v. Callahan, ___U.S. ___,
129 S. Ct. 808 (2009). Rather, courts of appeal must exercise their discretion in deciding, given
the circumstances of the particular case, which of the two prongs of the qualified immunity
analysis should be addressed first. See id.

8
In this case, Reams contends that a hearing prior to the impoundment of her

equines was required to satisfy due process. We disagree.

Although the Due Process Clause generally requires notice and an

opportunity to be heard before the government seizes one’s property, see, e.g.,

Quik Cash Pawn & Jewelry, Inc. v. Sheriff of Broward County, 279 F.3d 1316,

1322 (11th Cir. 2002), the Supreme Court has “rejected the proposition that ‘at a

meaningful time and in a meaningful manner’ always requires the State to provide

a hearing prior to the initial deprivation of property.” Parratt v. Taylor, 451 U.S.

527, 540-41, 101 S. Ct. 1908, 1915-16 (1981) (noting that its rejection of such a

rule “is based in part on the impracticability in some cases of providing any

preseizure hearing under a state-authorized procedure, and the assumption that at

some time a full and meaningful hearing will be available”), overruled on other

grounds by Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662 (1986). Rather,

because “due process is a flexible concept that varies with the particular

circumstances of each case,” we must apply the balancing test articulated in

Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, to determine whether pre-

deprivation process was required in this case. Grayden, 345 F.3d at 1232-33; see

also Bailey v. Bd. of County Com’rs of Alachua County, Fla., 956 F.2d 1112, 1123

n.12 (11th Cir. 1992) (“The need for some form of predeprivation hearing is

9
determined from balancing the competing interests at stake.”). Under Mathews,

the specific dictates of due process in any given case are determined by

considering: (1) the private interest that will be affected by the official action; (2)

the risk of an erroneous deprivation of such interest through the procedures used

and the probable value, if any, of additional or substitute procedural safeguards;

and (3) the government’s interest, “including the function involved and the fiscal

and administrative burdens that the additional or substitute procedural requirement

would entail.” 424 U.S. at 335, 96 S. Ct. at 903.

While Reams’ interest in maintaining her property rights to the impounded

equines was not insubstantial, see, e.g., Porter v. DiBlasio, 93 F.3d 301, 306 (7th

Cir. 1996) (“[T]here can be no dispute that an animal owner has a substantial

interest in maintaining his rights in a seized animal. Such is especially the case

with potential income-generating animals such as horses.”), given the standards

and procedures for inspection and impoundment prescribed by the Act,6 and the

fact that the state largely complied with these procedures, we find that the risk of

6
Upon a showing of probable cause to believe that equines are not being provided with
adequate food and water or humane care, the Commissioner of Agriculture may apply for a
search warrant in order to inspect the equines, and may “impound any equine which has not been
furnished with adequate food and water, which has not received humane care, or which has been
subjected to cruelty in violation of Code Section 4-13-3.” O.C.G.A. § 4-13-4(a), (b). Before the
Commissioner may impound an animal pursuant to this provision, a licensed veterinarian must
examine and determine the condition or treatment of the animal. See id. § 4-13-4(b).

10
an erroneous deprivation in this case was relatively low .7 See Grayden, 345 F.3d at

1234-35 (standards and procedures for inspection and condemnation under city

code, which authorized enforcement officer to enter and inspect building to

determine its condition, provided protection against risk of erroneous deprivation);

cf. Siebert v. Severino, 256 F.3d 648, 660 (7th Cir. 2001) (risk of erroneous

deprivation of interest in horses was great where state used volunteer investigator

“who apparently lacked sufficient knowledge about horses to determine whether

appropriate care was given”). Insofar as the decision to impound Reams’ equines

was based upon an examination of the equines and an assessment of their condition

by a veterinarian, we find that an evidentiary hearing prior to impoundment was of

limited potential value and thus agree with the district court that a post-deprivation,

versus a pre-deprivation, hearing was “unlikely to spawn significant factual

errors.” R5-85 at 13. See Memphis Light, Gas and Water Div. v. Craft, 436 U.S.

1, 19, 98 S. Ct. 1554, 1565 (1978) (advance procedural safeguards not

constitutionally required “where the procedures underlying the decision to act are

sufficiently reliable to minimize the risk of erroneous determination”). Moreover,

7
Although Reams alleges that Dr. Loper was not qualified under GDA regulations to
recommend impoundment because his license to practice veterinary medicine in the state of
Georgia had been converted from active to inactive status in December 1990, this fact does not
render unreliable the procedures used to determine whether impoundment was appropriate in this
case.

11
as demonstrated by the GDA’s immediate seizure of Reams’ equines, requiring

additional procedural safeguards in the form of a hearing prior to impoundment

would run the risk of causing further harm to animals who are being deprived of

adequate food and water. Cf. Siebert, 256 F.3d at 660.

Finally, the state’s interest in preventing the inhumane treatment of animals

is undeniably substantial and would be significantly compromised if the state were

to require a hearing before impounding malnourished equines. Based on the

foregoing, we conclude that a balancing of the competing interests in this case

demonstrates that a pre-deprivation hearing was not mandated by the Due Process

Clause.

B. Adequacy of Notice

We also reject Reams’ contention that she was entitled to personal notice of

her right to challenge the impoundment. To be constitutionally adequate, “notice

must be ‘reasonably calculated, under all the circumstances, to apprise interested

parties of the pendency of the action and afford them an opportunity to present

their objections.’” Grayden, 345 F.3d at 1242 (quoting Mullane v. Cen. Hanover

Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950)). “For one

hundred years, the Supreme Court has declared that a publicly available statute

may be sufficient to provide [constitutionally adequate] notice because individuals

12
are presumptively charged with knowledge of such a statute.” Id. at 1239. Thus,

where remedial procedures are “established by published, generally available state

statutes and case law,” law enforcement officials need not take additional steps to

inform a property owner of her remedies. City of West Covina v. Perkins, 525

U.S. 234, 241, 119 S. Ct. 678, 681 (1999). Cf. Memphis Light, 436 U.S. at 19, 98

S. Ct. at 1565 (where administrative procedures for resolving accounting disputes

were not described in any publicly available document, due process required utility

company to inform customers of those procedures “or some specified avenue of

relief”).

In Grayden, we held that statutory notice of state remedies in connection

with a condemnation order that gave the tenants only thirty-six hours to vacate

their homes was constitutionally inadequate because it was not “reasonably

calculated to inform the tenants . . . of their right to choose between acquiescing in

or contesting [the] condemnation order.” 345 F.3d at 1243. In so holding, we

emphasized the “extremely important” fact that the tenants were facing eviction

and had only thirty-six hours to vacate their homes, during which time “they had to

complete a multitude of tasks, which ranged from securing alternate shelter to

collecting their personal belongings to making accommodations for work or

school.” Id. Conversely, in Arrington v. Helms, 438 F.3d 1336 (11th Cir. 2006),

13
we held that custodial parents who did not receive state-collected child support

payments were not entitled to individualized notice of their right to challenge the

state’s mishandling of their payments. We reasoned that,

[u]nlike the tenants in Grayden, Alabama’s custodial parents have
significantly more than 36 hours to locate the relevant public
documents and invoke their right to a hearing. From the time a
custodial parent learns [the state] has erroneously deprived her of a
child support payment, to the time her right to a hearing expires, she
has 30 days in which to locate and read the statutes, regulations, and
publicly available documents discussed above, and submit a written
request for a hearing, . . . [t]his one-month window constitutes a
reasonable amount of time under the Mullane standard.

Id. at 1353.

Under the circumstances of this case, we find that statutory notice of the

right to contest the impoundment was reasonably calculated to provide Reams with

contemporaneous notice of her right to, and the procedures for requesting, a

hearing, and was thus constitutionally sufficient. Pursuant to O.C.G.A. § 2-2-

9.1(d), Reams had thirty days from the time of the impoundment to request a

hearing. As was the case in Arrington, this was ample time for Reams to consult

publicly available documents, discover her right to a hearing, and exercise that

right.

C. Adequacy of Post-deprivation Remedies

Reams contends that, even if she was not entitled to pre-deprivation notice

14
and a hearing, the process she did receive was constitutionally inadequate because:

(1) she had to wait seven months before she was afforded an initial hearing, and (2)

the settlement conference in which she participated with GDA officials “was not

meaningful in a constitutional sense as it did not offer [her] the right to subpoena

evidence or witnesses, directly or cross-examine witnesses, or present her case to

an unbiased decision-maker.” Appellant’s Brief at 26.

The Humane Care for Equines Act affords equine owners an opportunity for

a hearing to contest any impoundment. It provides:

Any . . . equine owner . . . aggrieved or adversely affected by any
order or action of the Commissioner to include . . . impoundment . . .
upon petition within 30 days after the issuance of such order or the
taking of such action, shall have a right to a hearing before a hearing
officer appointed or designated for such purpose by the
Commissioner. The decision of the hearing officer shall constitute an
initial decision of the Department of Agriculture, and any party to the
hearing . . . shall have the right to final agency review before the
Commissioner.

O.C.G.A. § 2-2-9.1(d) (quotation marks omitted). Even assuming, arguendo, that

the process Reams received under the Act was inadequate “from a timeliness

standpoint” and not “truly meaningful,” Appellant’s Brief at 24, her § 1983 due

process claim is nevertheless incognizable. It is well-settled that a constitutional

violation is actionable under § 1983 “only when the state refuses to provide a

process sufficient to remedy the procedural deprivation.” McKinney v. Pate, 20

15
F.3d 1550, 1557 (11th Cir. 1994) (en banc); see also Foxy Lady, Inc. v. City of

Atlanta, 347 F.3d 1232, 1238 (11th Cir. 2003) (“[E]ven if a procedural deprivation

exists . . . , such a claim will not be cognizable under § 1983 if the state provides a

means by which to remedy the alleged deprivation.”); Cotton, 216 F.3d at 1331 (“It

is the state’s failure to provide adequate procedures to remedy the otherwise

procedurally flawed deprivation of a protected interest that gives rise to a federal

procedural due process claim.”). In Cotton, we observed that

[t]his rule (that a section 1983 claim is not stated unless inadequate
state procedures exist to remedy an alleged procedural deprivation)
recognizes that the state must have the opportunity to remedy the
procedural failings of its subdivisions and agencies in the appropriate
fora-agencies, review boards, and state courts before being subjected
to a claim alleging a procedural due process violation.

Cotton, 216 F.3d at 1331 (quotation marks omitted); see Horton v. Bd. of Co.

Com’rs of Flagler Co., 202 F.3d 1297, 1300 (11th Cir. 2000) (no federal

procedural due process violation under McKinney if state courts “generally would

provide an adequate remedy for the procedural deprivation the federal court

plaintiff claims to have suffered”).

The question is thus whether the state provided Reams with the means to

present her allegations, demonstrate that the impoundment was wrongful, and

receive redress from that deprivation. See Narey v. Dean, 32 F.3d 1521, 1527

(11th Cir. 1994). We find that it did. In addition to administrative review, an

16
equine owner like Reams who is adversely affected by an order or action of the

Commissioner may, pursuant to O.C.G.A. § 2-2-9.1(n), seek judicial review of the

Commissioner’s final decision in accordance with the Georgia Administrative

Procedures Act (“APA”). That Act provides:

Any person who has exhausted all administrative remedies available
within the agency and who is aggrieved by a final decision in a
contested case is entitled to judicial review under this chapter. . . . A
preliminary, procedural, or intermediate agency action or ruling is
immediately reviewable if review of the final agency decision would
not provide an adequate remedy.

O.C.G.A. § 50-13-19(a). On review, the superior court “may reverse or modify the

[agency’s] decision if substantial rights of the appellant have been prejudiced

because the administrative findings, inferences, conclusions, or decisions are . . .

[i]n violation of constitutional or statutory provisions.” Id. § 50-13-19(h).

Because “[i]nherent in [the] power to review is the power to remedy deficiencies

and to cure violations of due process,” McKinney, 20 F.3d at 1563, the review

available in this case “more than satisfies [the] requirement” that the state provide

a remedy that is adequate to correct the alleged procedural due process violation.

Narey, 32 F.3d at 1527 (quotation marks and citation omitted); Cotton, 216 F.3d at

1331 (“[C]ertiorari [to the state courts] is generally an adequate state remedy.”).

Accordingly, we agree with the district court that “[t]he judicial safety valve

provided by the Georgia [APA] foreclose[d] any constitutional challenge to the

17
procedural adequacy of the hearing-and-appeal procedure set forth in the Humane

Care for Equines Act.” R5-85 at 15. Inasmuch as Reams failed to establish a

constitutional violation, appellees were entitled to qualified immunity. See

McKinney, 20 F.3d at 1557 (due process violation not complete “unless and until

[a] State fails to provide due process” (citation and quotation marks omitted)).

III. CONCLUSION

Reams appeals the district court’s grant of summary judgment in favor of

Appellees on qualified immunity grounds. Because we conclude that available

state remedies were adequate to cure any erroneous deprivation of Reams’

protected interest in her equines, Reams has failed to establish that her procedural

due process rights were violated. Accordingly, the district court did not err in

finding that Appellees were entitled to qualified immunity.

AFFIRMED.

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BARKETT, Circuit Judge, concurring specially:

I concur in the district court’s conclusion that summary judgment was

appropriate for the defendants in this case. I agree that the district court was

correct in finding that due process was satisfied by the availability of both

administrative and state-court review. Because there is no constitutional violation

in this case, those defendants sued in their individual capacities are also entitled to

qualified immunity.

19