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Smith v. First State Animal Center and SPCA Inc.

Superior Court of Delaware

October 4, 2018

First State Animal Center and SPCA, Inc., et al,

          Date Submitted: July 5, 2018

          Marc S. Casarino, Esquire Nicholas R. Wynn, Esquire White and Williams LLP

          Brian T.N. Jordan, Esquire Jordan Law, LLC

         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")[1], Katelyn Pepper, Sandra Galloway, David Hulse, Ruth Agnew, Kevin Usilton, Drew May, Mary Palacio, and Sherri Warburton alleging (1) 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. I 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 granted with respect to all of Nancy Smith's claims. Pending before the Court is the collective Defendants' Motion for Summary Judgment 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.


         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 Attorney 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 Attorney 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 Justice. 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 attorneys' 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]

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


         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] If, 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 conjecture.[8] However, where "evidence is merely colorable, or is not significantly probative, summary judgment may be granted."[9] Finally, "a plaintiffs testimony must be substantiated by direct evidence found in the record."[10]


         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, I 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. 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 I 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. It 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."[11] As I 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" under particularized circumstances.[14] Furthermore, 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 Attorney 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 Attorney General is instructive. The Attorney 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 Attorney 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 Attorney 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.

         Turning 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 County[19] 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 duties.[21] 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 duties.[22] In other words, officers can possess and exercise police powers even though they are not certified police officers under Title 11.

         Historically, even laypersons 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 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... ."[30] Defendant Pepper tried to explain the quarantine procedure and Smith asserted that the ACOs would need to speak to his attorney. Defendant Pepper reported back to her boss, Defendant Palacio, who stated she would contact Smith's attorney. 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 attorney, 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 Keek'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.[31]

         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 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 of his IIED claim. I 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 frame.[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 I said there's no reason for her to see her. We have our own veterinarian on staff who would 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. ...

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