United States Court of Appeals,
Fifth Circuit.
No. 94-50368
Summary Calendar.
Dottie CATHEY, Plaintiff-Appellee,
v.
Dennis GUENTHER, et al., Defendants,
Lance Van Horn, Defendant-Appellant.
March 13, 1995.
Appeal from the United States District Court for the Western
District of Texas.
Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
This appeal arises from the district court's denial of
qualified immunity to police chief Van Horn of Granite Shoals,
Texas. The court's interlocutory order on that point of law does
not, however, reflect the real significance of this case. The
facts before us illustrate a common misperception that the United
States Constitution offers a remedy for every conceivable
controversy between a citizen and government officials.
Dottie Cathey loved cats and dogs, a number of which she
nurtured at her house. Her neighbor, Dennis Guenther, loved birds,
which he watched at his feeders, and he liked to keep his house and
yard neat and orderly. As citizens of Granite Shoals, they shared
a common problem: stray animals. Granite Shoals is too small to
maintain an animal pound, so stray dogs and cats roam about,
defecating in Guenther's yard, boldly attacking his trash cans,
1
although they were stored in a screen-enclosed porch, and fighting
at all hours of the day and night. Both cats and dogs committed
these trespasses, to Guenther's dismay.
Guenther asked the town police chief for advice on several
occasions. The testimony conflicts over exactly what he was told.
As Cathey describes it, Chief Van Horn informed Guenther that he
could shoot stray animals on his property if they were damaging it.
If this is accurate, Van Horn's advice may have contradicted two
municipal ordinances, one preventing the discharge of firearms
inside the town and the other prohibiting cruelty to animals. Van
Horn denies any such intemperate language and insists that he
qualified his advice carefully. He asserts he told Guenther to
determine first whether the animals were really homeless and
second, to trap them or spray them with water, not to shoot them.
Whatever the truth of the matter, Cathey claims that Guenther
shot and killed her little black cat when it strayed onto
Guenther's property one afternoon.
To Cathey, Guenther's foul deed demanded retribution to the
fullest extent of the law. She preferred criminal complaints
against him and then filed suit against Guenther, Van Horn, police
officer Arther and the Town of Granite Shoals in state court,
seeking damages under state common law and federal constitutional
provisions. The public defendants removed the case to federal
court, some discovery took place, and Van Horn moved for summary
judgment on the basis of qualified immunity. The district court,
expressing serious misgivings that a case of this sort ought to be
2
tried in federal court, nevertheless felt compelled to deny
qualified immunity. The court's decision focused on the ambiguity
in the evidence regarding what Chief Van Horn told Guenther he
could do to get rid of stray animals.
In our view, proper analysis of this case begins at an earlier
point. Cathey alleges a deprivation of her property, i.e. her
cat,1 without due process of law. She asserts that Chief Van Horn
effected "a taking" of the property without due process by advising
Guenther, contrary to local ordinances, that Guenther could shoot
stray animals on his property.2 The Supreme Court has instructed
us to consider, before the question of qualified immunity, whether
the plaintiff's complaint states a cognizable constitutional cause
of action. Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789,
1793, 114 L.Ed.2d 277 (1991). Contrary to the district court's
assumption, Supreme Court opinions have foreclosed a procedural due
process claim in this sort of case.
Ordinarily, the state may not take property from an
individual without providing pre-deprivation notice and a hearing.
Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 984, 108
L.Ed.2d 100 (1990) ("usually" Constitution "requires some kind of
hearing before the state deprives a person of liberty or
property"). Some types of takings, however, cannot fairly be
1
A pet animal is property in Texas. Tex.Prop.Code Ann. §
42.002(a)(11).
2
Cathey also alleges denial of equal protection of the laws
under the 14th amendment. Since she concedes that the issue was
not raised in the district court, we find it waived.
3
attributed to the state because they represent the random and
unauthorized actions of state actors. Thus, in Hudson v. Palmer,
468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the Supreme
Court held that no § 1983 claim exists if a person's property has
been taken by such random and unauthorized conduct and if the state
provides an adequate post-deprivation remedy, for instance, in
state tort law. Id. at 533, 104 S.Ct. at 3203-04. "[W]e hold that
an unauthorized intentional deprivation of property by a state
employee does not constitute a [constitutional] violation ... if a
meaningful post-deprivation remedy for the loss is available.")
As Cathey's pleadings demonstrate, Texas common law supplies
several causes of action to remedy Chief Van Horn's unlawful
"taking" of her cat. The adequacy of state post-deprivation
remedies founded on these remedies is not at issue. Absent such an
argument, however, no state action sufficient to support a
constitutional claim has occurred. Id. ("For intentional, as for
negligent deprivations of property by state employees, the state's
action is not complete until and unless it provides or refuses to
provide a suitable post deprivation remedy.") Cathey insists,
without benefit of supporting authority, that Hudson does not apply
because Van Horn's action could not have been random or
unauthorized because he was the police chief. We disagree. The
scope of his authority is gauged by state law, Jett v. Dallas
Independent School Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 2723-
24, 105 L.Ed.2d 598 (1989), and we fail to discern any
authorization for the police chief to give private citizens legal
4
advice directly contrary to the laws he must enforce. Without a
link to state practice or procedure, in the narrow context of
deprivations of property, Hudson forecloses any federal
constitutional claim and compels the grant of summary judgment on
behalf of Chief Van Horn.3
The order of the district court denying qualified immunity to
Chief Van Horn is reversed, and the case is remanded with
instructions to dismiss the federal constitutional law claims
against him.
REVERSED and REMANDED with INSTRUCTIONS.
3
Cathey also maintains that by instructing Guenther to shoot
at stray animals, Van Horn placed her in danger. No state,
however, has an affirmative duty to protect its citizens unless
the state imposes some restraint on personal liberty increasing
the danger to the individual. DeShaney v. Winnebago County
Dept., 489 U.S. 189, 199-200, 109 S.Ct. 998, 1005-06, 103 L.Ed.2d
249 (1989). Cathey has failed to allege a state-created
condition distinct from other members of the general public.
5