PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBERT WALKER; COURTNEY
WALKER,
Plaintiffs-Appellants,
v.
PRINCE GEORGE’S COUNTY, No. 08-1462
MARYLAND; JANET JACOBS, #907 in
her official capacity and individual
capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(8:07-cv-00123-AW)
Argued: May 14, 2009
Decided: July 30, 2009
Before Sandra Day O’CONNOR, Associate Justice
(Retired), Supreme Court of the United States,
sitting by designation, WILKINSON, Circuit Judge, and
Joseph F. ANDERSON, Jr., United States District Judge
for the District of South Carolina, sitting by designation.
Affirmed by published opinion. Associate Justice O’Connor
wrote the opinion, in which Judge Wilkinson and Judge
Anderson joined.
2 WALKER v. PRINCE GEORGE’S COUNTY
COUNSEL
Jason Christopher Crump, SMITH GRAHAM & CRUMP,
LLC, Largo, Maryland, for Appellants. Stephen Thibodeau,
PRINCE GEORGE’S COUNTY OFFICE OF LAW, Upper
Marlboro, Maryland, for Appellees.
OPINION
O’CONNOR, Associate Justice (Retired):
This is a case about a wolf named Dutchess. Concerned
that the wolf’s presence on residential property posed a risk
to the public, a Prince George’s County Animal Control Offi-
cer seized Dutchess and left word for her absent owners.
Those owners sued the officer and the county for monetary
damages, arguing that the seizure violated their civil rights.
The district court concluded that the officer was entitled to
qualified immunity and that the plaintiffs failed adequately to
plead a claim against the county. We agree and consequently
affirm the court’s judgment.
I
Because plaintiffs-appellants Robert and Courtney Walk-
er’s claims were rejected on summary judgment, we view the
factual evidence in the light most favorable to them. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In February 2006, Robert Walker obtained an animal that
he believed was a dog. Walker and his wife, Courtney
Walker, named the animal Dutchess and had her vaccinated
for rabies. The veterinarian who performed the vaccination
determined that Dutchess was an Alaskan Malamute, a breed
of dog that looks like a husky. He gave the Walkers proof of
the vaccination, which identified Dutchess as a dog. The
WALKER v. PRINCE GEORGE’S COUNTY 3
Walkers used this report to obtain a "dog/ferret/cat license"
from Prince George’s County.
In July, Robert Walker and his sister, Antonia Payne, had
a heated confrontation in front of his home. Walker struck and
cracked the windshield of Payne’s car. Payne left and reported
the incident to the Prince George’s County Police Depart-
ment. The Walkers also left the house. Payne returned to the
Walkers’ home, and when an officer arrived at the scene, she
told the officer that Robert Walker kept a wolf as a pet. The
officer contacted the county’s Animal Management Division
to report Payne’s claim.
Defendant-Appellee Janet Jacobs, an Animal Control Offi-
cer, responded to the call. She observed that the animal was
in an unlocked 12-foot by 12-foot chain-link kennel near the
driveway and determined that it was a wolf based on its phys-
ical characteristics. She then called her supervisor, who told
her to impound the animal. Jacobs did so and left notice for
the Walkers, instructing them to contact the Animal Control
Office.
The next day, the Walkers filed a petition with the Animal
Control Commission, requesting Dutchess’ return. In Septem-
ber, the Commission held a hearing and found that Dutchess
was a wolf hybrid and that the Walkers consequently had vio-
lated Prince George’s County Code § 3-176, a provision that
prohibits the keeping of a wolf without a permit. The Walkers
did not appeal the Commission’s decision. Instead, they sued
Prince George’s County and Officer Jacobs. Seeking compen-
satory and punitive damages, the Walkers alleged in State
court civil trespass, violation of Articles 24 and 26 of the
Maryland Constitution, and violation of their Fourth Amend-
ment rights under 42 U.S.C. § 1983. The defendants removed
the action to the United States District Court for the District
of Maryland and sought summary judgment. Officer Jacobs
argued she was entitled to qualified immunity from suit, and
the County challenged the sufficiency of the Walkers’ plead-
4 WALKER v. PRINCE GEORGE’S COUNTY
ings. The Walkers filed a cross-motion for summary judg-
ment, arguing that they lawfully possessed Dutchess on their
property.
The district court granted the defendants’ motion and
denied appellants’. It concluded that Officer Jacobs’ actions
were reasonable under the Fourth Amendment. "Even assum-
ing that Jacob’s seizure was unreasonable," the court con-
cluded, "it was reasonable for [her] to believe that her actions
did not constitute a violation of Plaintiffs’ constitutional
rights." Walker v. Prince George’s County, Civ. Action No.
AW-07-123, slip op. at 7 n.5 (D. Md. Mar. 28, 2008). The
court also held that the Walkers had failed adequately to plead
a claim against the county under Monell v. New York City
Dept. of Social Servs., 436 U.S. 658 (1978), because they
"failed to make any allegations in their complaint in regards
to the existence of the County’s policy, custom, or practice."
Walker, Civ. Action No. AW-07-123, at 9. Lastly, the district
court rejected the Walkers’ contention that they lawfully pos-
sessed Dutchess. It concluded that the Walkers were not in
lawful possession of the animal under county law, and that
there was no evidence that they "ever intended to report their
possession of a wolf or dog hybrid to comply with Maryland
code." Id. at 13.
The Walkers appeal the grant of summary judgment in
appellees’ favor on their Fourth Amendment § 1983 claim
and also the denial of their motion for summary judgment on
that claim.* They also argue that they were entitled to sum-
mary judgment. We have jurisdiction to review the district
court’s opinion under 28 U.S.C. § 1291, and we review that
*Appellants also assert that their rights under Articles 24 and 26 of the
Maryland Constitution were violated. Yet they fail to present an argument
to that effect—indeed, even to discuss those provisions. "Judges are not
like pigs, hunting for truffles buried in briefs." United States v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1991). We thus confine our analysis to their
claim under the Fourth Amendment of the U.S. Constitution.
WALKER v. PRINCE GEORGE’S COUNTY 5
opinion de novo, Hill v. Lockheed Martin Logistics Mgmt.,
354 F.3d 277, 283 (4th Cir. 2004) (en banc).
II
We affirm the judgment of the district court. Officer Jacobs
was entitled to qualified immunity, and appellants failed ade-
quately to plead a Monell claim against the County.
A
Qualified immunity "protects government officials ‘from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’" Pearson v.
Callahan, 555 U.S. __, 129 S. Ct. 808, 815 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). There is a
two-prong test for resolving qualified immunity claims. First,
a court "must decide whether the facts that a plaintiff has
alleged (see Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown (see
Rules 50, 56) make out a violation of a constitutional right."
Id. at 815-16. Second, if the plaintiff has satisfied this first
step, "the court must decide whether the right at issue was
‘clearly established’ at the time of [the] alleged misconduct."
Id. at 816. (citation omitted). Overruling Saucier v. Katz, 533
U.S. 194 (2001), the Supreme Court recently held that "courts
of appeals [are] permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances
in [a] particular case." Pearson, 129 S. Ct at 818. Here, we
think "it is plain that [the] constitutional right" postulated by
the appellants "is not clearly established." Ibid. We thus
decline to invest "a substantial expenditure of scarce judicial
resources" by engaging in the "essentially academic exercise"
of determining whether that right exists at all. Id. at 811, 818.
Appellants argue that the seizure of an animal may be rea-
sonable for purposes of the Fourth Amendment only when an
6 WALKER v. PRINCE GEORGE’S COUNTY
official has first determined whether the animal is being law-
fully possessed. Their Fourth Amendment rights were vio-
lated, they contend, because they were not "giv[en] . . . time
to prove that they possessed a license for the animal." Appel-
lant Brief 20. They base this argument on the applicable ani-
mal control provisions. The Walkers concede, as they must,
that "both the State of Maryland and Prince George’s County
have enacted laws prohibiting the possession of wolf-
hybrids." Id. at 19. They stress, though, that "[e]ach statute
contains exceptions," and they argue that they met these
exceptions. Id. "It is the nature of these exceptions," they con-
tend, "that ma[de]" Officer Jacobs’ seizure of Dutchess "un-
reasonable, unjustified, and therefore illegal." Id. It is difficult
to imagine that the Fourth Amendment secures such a
right—that the lawfulness of the seizure of a dangerous ani-
mal turns not only on the risk it poses, but also on its registra-
tion status, a status that presumably has no bearing on the
reasons for seizure.
But as we have explained, we need not delay ourselves
with that inquiry because appellants’ purported Fourth
Amendment right is certainly not "clearly established." In two
short paragraphs in their brief, appellants contend that "Offi-
cer Jacobs knew or should have known" that the Fourth
Amendment obliged her to inquire into the lawfulness of the
Walkers’ possession of Dutchess before seizing the wolf. Id.
at 22. As authority, they cite only a single Prince George’s
County Ordinance, § 3-176. That provision "enables persons
to lawfully possess wild and exotic animals as long as they
have a license or permit to do so." Appellant Brief 21. It was
clear that their possession of Dutchess might have been law-
ful, their argument goes, and thus the Fourth Amendment
right to an inquiry on that issue before seizure of the animal
was well recognized.
This contention fails for at least two reasons. First, the ordi-
nance upon which appellants rely says nothing about the law-
ful procedure for the seizure of a wolf. That a wolf may
WALKER v. PRINCE GEORGE’S COUNTY 7
lawfully be possessed does not mean that the lawfulness of its
possession must be verified as a prerequisite to its seizure
when that seizure is necessary to protect the public safety or
otherwise. Appellants’ understanding of the ordinance is fur-
ther undermined by the fact that their construction stands in
direct conflict with other applicable provisions. See, e.g.,
Walker, Civ. Action No. AW-07-123, at 7 ("Jacobs was acting
pursuant to the County law prohibiting the keeping of a wolf
on one’s premise and pursuant to the protocols of the Animal
Control Office, wherein she has eighteen years of experi-
ence."); Md. CODE ANN. § 10-621(d)(1)(i-ii) (2008) (An
animal must immediately be seized when "there is probable
cause to believe that the possession of the animal is in viola-
tion of [law] or the animal poses a risk to the public health or
the public safety."). Second, even if the county ordinance
required such verification, that fact alone does not support the
existence of a Fourth Amendment right. See Virginia v.
Moore, 553 U.S. __, __, 128 S. Ct. 1598, 1602 (2008)
(explaining that the Fourth Amendment is not "a redundant
guarantee of whatever limits on search and seizure legisla-
tures might have enacted"); California v. Greenwood, 486
U.S. 35, 43 (1988) ("[W]hether or not a search is reasonable
within the meaning of the Fourth Amendment" has never "de-
pend[ed] on the law of the particular State in which the search
occurs.").
In short, appellants have failed to point us to any authority
that even suggests the existence of their purported Fourth
Amendment right. We have found none. To the contrary, we
recently sustained a far more dramatic seizure of animals that
were known to be properly licensed. Altman v. City of High
Point, 330 F.3d 194 (4th Cir. 1998) (holding that it was objec-
tively reasonable for police to shoot vicious dogs that were
properly licensed and tagged). We thus cannot say that "it
would have been apparent to a reasonable officer in [Officer
Jacobs’] positio[n] that her actions violated the Fourth
Amendment." Walker, Civ. Action No. AW-07-123, at 7 n.5.
Consequently, she is entitled to qualified immunity.
8 WALKER v. PRINCE GEORGE’S COUNTY
Appellants devote a substantial portion of their brief to
their creative argument that their possession of Dutchess was
lawful. They had a "de facto" license to possess the wolf, they
contend, which was preserved by a grandfathering provision
in the applicable ordinances. Appellant Brief 10-17. That
argument is irrelevant. Appellants are not here to seek the
return of Dutchess, but to pursue monetary damages for a pur-
ported Fourth Amendment violation. As we have explained,
Officer Jacobs cannot be held liable for failing to inquire into
the lawfulness of the possession of Dutchess; it was reason-
able for her to believe that the Fourth Amendment posed no
obstacle to her immediate seizure of the wolf. Thus, by defini-
tion it does not matter whether the Walkers had a permit to
possess Dutchess. Appellants’ challenge to the denial of their
motion for summary judgment is thus beside the point.
B
The Walkers failed adequately to plead a Monell claim
against the County. Under Monell, a municipality’s liability
"arises only where the constitutionally offensive actions of
employees are taken in furtherance of some municipal ‘policy
or custom.’ " Milligan v. City of Newport News, 743 F.2d 227,
229 (4th Cir. 1984). Thus, appellants were obliged to "iden-
tify a municipal ‘policy,’ or ‘custom’ that caused [their]
injury." Board of Comm’rs of Bryan Cty. v. Brown, 520 U.S.
397, 403 (1997) (quoting Monell v. City of New York Dep’t
of Soc. Servs., 436 U.S. 658, 694 (1978)). We agree with the
district court that appellants "failed to make any allegations in
their complaint in regards to the existence of the County’s
policy, custom, or practice, therefore failing to plead" a viable
Monell claim. Walker, Civ. Action No. AW-07-123, at 9 (cit-
ing Semple v. City of Moundsville, 195 F.3d 708, 712 (4th Cir.
1999)).
Appellants assert without elaboration that a County policy
to seize animals without inquiring whether their owners have
valid permits for those animals "can be inferred from Officer
WALKER v. PRINCE GEORGE’S COUNTY 9
Jacobs’ testimony" and that it should be "presumed that the
County never checks to see if owners lawfully possess wild
or exotic animals before seizing them." Appellant Brief 24.
But they fail to explain the basis of their inference or the justi-
fication for their presumption. At best, plaintiffs have alleged
that it was Officer Jacobs’ "common practice based on her
years of experience and training . . . to tell her supervisor
what she is observing and then he will tell her whether she
should take the animal." Id. at 21. Critically lacking is any
support for the proposition that Officer Jacobs’ common prac-
tice "implemented an official government policy or custom."
Walker, Civ. Action No. AW-07-123, at 9 (quotation marks
omitted).
As the Supreme Court has recently explained, "[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice" to plead a claim.
Ashcroft v. Iqbal, 556 U.S. __, ___, 129 S. Ct. 1937, 1949
(2009). And "[w]e are not bound to accept as true a legal con-
clusion couched as a factual allegation." Id. at 1949-1950
(quotation marks omitted). Appellants’ allegations "do not
permit [us] to infer more than the mere possibility of miscon-
duct." Id. at 1950. This mere possibility is inadequate to sub-
ject the County to appellants’ suit for monetary damages.
III
For the reasons stated, the judgment of the district court is
hereby
AFFIRMED.