Jutta Kosielowsky v. Sammies Friends

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 30, 2020
• Docket: 18-16633
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 30 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUTTA KOSIELOWSKY, an individual, No. 18-16633

Plaintiff-Appellant, D.C. No. 2:17-cv-01141-MCE-AC v.

NEVADA COUNTY, a governmental MEMORANDUM* agency; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding

Submitted February 11, 2020** San Francisco, California

Before: RAWLINSON and CALLAHAN, Circuit Judges, and BOLTON,*** District Judge.

This case concerns a dog who was euthanized at Sammie’s Friends, a private

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. animal-care facility, eighteen days after it was deemed legally abandoned. The

dog’s former owner, Plaintiff-Appellant Jutta Kosielowsky, sued Defendant-

Appellees Sammie’s Friends, Sammie’s Friends’ employee Cheryl Wicks, Nevada

County, and Nevada County employee Doe 1 (collectively, Defendants) under 42

U.S.C. § 1983, alleging: (1) illegal seizure of her dog in violation of the Fourth

Amendment; and (2) deprivation of her Fourteenth Amendment procedural due

process rights. The district court dismissed Kosielowsky’s Second Amended

Complaint (SAC) without granting leave to amend. We have jurisdiction under 28

U.S.C. § 1291 and affirm.1

I. Abandonment

In determining whether an asserted claim can be sustained, “[a]ll of the facts

alleged in the complaint are presumed true, and the pleadings are construed in the

light most favorable to the nonmoving party.” Bates v. Mortg. Elec. Registration

Sys., Inc., 694 F.3d 1076, 1080 (9th Cir. 2012) (citation omitted). Nevertheless,

“for a complaint to survive a motion to dismiss, the nonconclusory ‘factual

content,’ and reasonable inferences from that content, must be plausibly suggestive

of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962,

969 (9th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

1 Because the parties are familiar with the facts of this case, we do not discuss them at length here.

2 18-16633 The district court fairly determined that Kosielowsky failed to allege

ownership of the dog at the time of its death. In California, if an animal-care

facility takes custody of an animal for boarding, and the animal is not retrieved on

the agreed-upon date, the facility must hold the animal for fourteen days before it

is deemed abandoned. Cal. Civ. Code § 1834.5(a). Kosielowsky not only admits

that she failed to retrieve the dog on the appointed date, but she also fails to allege

facts indicating her intent to retrieve the dog. For example, Kosielowsky fails to

allege that she or anyone on her behalf tried to retrieve the dog, or explain why the

threat of a phone call to the sheriff would prevent her from attempting to retrieve

the dog for more than one month after the agreed-upon date. Without more,

Kosielowsky’s allegation of subjective fear does not overcome the fact that her dog

was legally abandoned.

II. State Action

Because the district court limited its holding to the narrow issue of

abandonment, it did not address the issue of whether Sammie’s Friends and Wicks,

respectively, are state actors for the purposes of § 1983. Kosielowsky now asks us

to find that Sammie’s Friends, a private corporation, and Wicks, a corporate

employee, were acting under the color of state law. We do not. Kosielowsky

neither alleges nor can it be inferred that Sammie’s Friends and Wicks were “fully

vested with state authority.” West v. Atkins, 487 U.S. 42, 57 (1988). And,

3 18-16633 significantly, Kosielowsky voluntarily placed the dog in the care of Sammie’s

Friends and Wicks; there was no search and seizure by any actor—state or

otherwise.

III. Denial of Leave to Amend

Leave to amend shall be freely given when justice so requires. Fed. R. Civ.

P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). At the same time, while that

policy “should be applied with extreme liberality,” a district court may deny leave

to amend where amendment would be futile. United States v. Webb, 655 F.2d 977,

979–80 (9th Cir. 1981) (citation and quotation omitted).

Kosielowsky has thus far failed to allege ownership of the dog in her three

bites at the apple. Her arguments on appeal do not signal that, if afforded a fourth

bite, she will allege facts demonstrating either ownership of the dog at the time of

its death, or conduct indicating her intent to retrieve the dog before it was deemed

legally abandoned. The district court’s denial of leave to amend the SAC should

not be disturbed; Kosielowsky cannot offer any amendment that will cure its

primary defect.

AFFIRMED.

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