Rich v. Montgomery County MD ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SUSAN C. RICH, 
Plaintiff-Appellant,
v.
MONTGOMERY COUNTY, MARYLAND;
WAYNE FRYER, in his individual
capacity and official capacity as
Captain with the Montgomery
County Police Department and  No. 03-1507
Director of the Animal Services
Division; WAYNE KUSTER; THOMAS
HANE, in their individual capacities
and official capacities as officers of
the Montgomery County Animal
Services Division,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Marvin J. Garbis, Senior District Judge.
(CA-01-3679-8-MJG)
Argued: February 26, 2004
Decided: May 10, 2004
Before WIDENER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
2 RICH v. MONTGOMERY COUNTY, MARYLAND
COUNSEL
ARGUED: Sean Robert Day, College Park, Maryland, for Appellant.
Sharon Veronica Burrell, COUNTY ATTORNEY’S OFFICE FOR
THE COUNTY OF MONTGOMERY, Rockville, Maryland, for
Appellees. ON BRIEF: Charles W. Thompson, Jr., County Attorney,
Patricia P. Via, Associate County Attorney, COUNTY ATTOR-
NEY’S OFFICE FOR THE COUNTY OF MONTGOMERY, Rock-
ville, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Susan Rich, a resident of Montgomery County, Maryland, filed this
action against Montgomery County, Montgomery County Animal
Services Division ("ASD") Director Wayne Fryer, ASD Officer
Wayne Kuster, and ASD Officer Thomas Hane, alleging that they
conspired to violate, and did violate, her constitutional rights by (1)
issuing to her and prosecuting civil citations for animal control viola-
tions and (2) searching her home. Following discovery, the district
court granted summary judgment in favor of the County and the offi-
cers. Rich now appeals. Finding no error, we affirm.1
1
Federal Rule of Civil Procedure 56(c) provides that summary judg-
ment "shall be rendered forthwith if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law." We review
a district court’s grant of summary judgment de novo, and we view all
facts and inferences in a light most favorable to the nonmoving party.
Hill v. Lockheed Martin Logistics Mgt., Inc., 354 F.3d 277, 283 (4th Cir.
2004) (en banc).
RICH v. MONTGOMERY COUNTY, MARYLAND 3
I
Rich is an animal protection advocate residing on Bluhill Road in
Montgomery County. For years, Rich has been publicly critical of the
County’s enforcement of animal control laws, and she has expressed
her views and criticism to the County and its officials on many occa-
sions. The specific events giving rise to this lawsuit began on March
10, 2001, when Rich met with County Police Chief Charles Moose
to discuss problems she believed existed in ASD, including Captain
Fryer’s performance.2 Captain Fryer and a small group of citizens also
attended this meeting, and Captain Fryer appeared to be angered by
Rich’s criticism. During this meeting, Rich pointed to several
addresses where she believed animal control violations were occur-
ring, and she requested that ASD investigate these locations. One of
the addresses was on Bluhill Road near Rich’s house.3
Within a few days of the March 10 meeting, Captain Fryer went
to the Bluhill Road address given by Rich to investigate her com-
plaint, and he found her concerns to be valid. Captain Fryer was dis-
turbed about possible animal control violations as well as the
condition of the house and yard, and he also noticed a number of
other houses on Bluhill Road that were in disrepair and a number of
barking dogs in the neighborhood. Based on Rich’s complaint and his
own observations, Captain Fryer decided to send ASD officers to
Bluhill Road to conduct a "neighborhood sweep" to determine how
many dogs were unlicensed or kept in unsuitable conditions. Captain
Fryer also decided to involve the County Department of Housing
("DOH") in this operation.
Captain Fryer met with his staff and expressed his displeasure with
what he had seen on Bluhill Road and also with their response to calls
generally. Captain Fryer told the staff that they needed to take the ini-
tiative when responding to a call to verify that all dogs that they
observe are properly licensed and vaccinated, and he instructed an
officer to go to the Bluhill Road address to ensure that the problems
2
Fryer held the rank of Captain in the County Police Department.
3
Although a follow-up meeting was scheduled with Chief Moose for
May 15, that meeting was never held.
4 RICH v. MONTGOMERY COUNTY, MARYLAND
he had observed were fixed. Captain Fryer also informed the staff of
his plan to begin conducting neighborhood sweeps. Captain Fryer
directed Officers Kuster and Hane to conduct the sweeps, and he told
them to start in the Bluhill Road area and work their way up that
street ascertaining whether any animals they observed were properly
licensed and vaccinated.
Captain Fryer coordinated the Bluhill Road sweep with DOH, and
DOH Code Inspector Stephen Morris was assigned to assist Officers
Kuster and Hane. Inspector Morris, who was previously aware of
ongoing housing problems in the Bluhill Road area, suggested that
they start the sweep at the bottom of Bluhill Road because that was
the beginning of the neighborhood and was a "good starting point."
(J.A. 301). On May 8, Inspector Morris accompanied Officers Kuster
and Hane on the sweep. The officers began at the point suggested by
Inspector Morris, and they traveled up Bluhill Road. Officers Kuster
and Hane observed each house for evidence of animals, and they went
to every house where they saw or heard an animal and attempted to
make contact with someone at the house. At houses where an animal
was not in compliance with county laws and the owner was present,
the officers issued citations. If the owner was not present, the officers
left a notice of violation requesting compliance. While Officers
Kuster and Hane conducted their inspections, Inspector Morris looked
for housing code violations.
As the officers were working their way up Bluhill Road, they
observed a dog running loose and a woman catching the dog and
returning to a house with it. The woman was Rich, and her dog had
gotten away from her as she was trying to chain him on the front
stoop. A short time later, Officers Kuster and Hane approached the
woman (who they then recognized to be Rich) to inquire about the
dog. Rich was outside the house cleaning her car, and another dog
was sitting in the car. Officer Kuster asked Rich if the dog in the car
was hers, to which she responded: "She’s in my car, isn’t she?" (J.A.
216). Officer Kuster then asked Rich if the dog had water, and the
officers commented in a "sarcastic way" that they may have to take
it into custody. (J.A. 220). The officers then asked Rich if the dog was
licensed, and she responded that the dog had all of its shots, but she
would need some time to get the paperwork because she had several
dogs. The officers responded that they would wait. Rich, who felt
RICH v. MONTGOMERY COUNTY, MARYLAND 5
threatened by the officers’ presence and felt they were wasting their
time, went inside the house for a few minutes, returned outside to
retrieve her dog, and then went back inside. Rich did not inform the
officers about the status of her paperwork and did not have any fur-
ther contact with them that day.
Based on his observations at Rich’s house, Officer Kuster deter-
mined that Rich was in violation of the animal control laws, and he
wrote her several citations for licensing and vaccination violations
and one citation for having a dog-at-large. Because Rich had not
come back outside, Officer Kuster left the citations on her doorstep.
The officers continued with their sweep and completed that block of
Bluhill Road before ending for the day. Subsequently, Officer Kuster
and another ASD officer returned to the neighborhood and conducted
sweeps on other streets. Inspector Morris also returned to the neigh-
borhood to conduct housing inspections over the next few months.
After the May 8 sweep, Officer Kuster reported his contact with
Rich to Captain Fryer and expressed concern that although he had
heard dogs barking inside her home, he did not know whether they
were licensed or vaccinated. Captain Fryer suggested that Officer
Kuster obtain an administrative search warrant to ascertain whether
the dogs in Rich’s house were licensed and vaccinated. Officer Kuster
prepared the warrant application and presented it to a judge who
issued the warrant.
On May 11, Officer Hane and three other law enforcement officers
executed the search warrant. Rich was present during the search and
cooperated with the officers. Rich provided the officers with vaccina-
tion information for the dogs, but she did not provide any licensing
documentation. Consequently, Officer Hane issued her additional
citations for having unlicenced dogs. Rich licensed her dogs several
days after the search.
Rich subsequently challenged the citations in court and was acquit-
ted of all but the dog-at-large violation. According to appellees, Rich
prevailed on the licensing and vaccination citations because the
licensing and vaccination laws only require licensing and vaccination
for dogs over a certain age, and the County did not establish the age
of the dogs at trial.
6 RICH v. MONTGOMERY COUNTY, MARYLAND
II
Rich asserted three constitutional claims against the County and the
officers: (1) they violated her First Amendment right by retaliating
against her for criticizing ASD; (2) they violated her Fourth Amend-
ment right by conducting an unreasonable search of her house; and
(3) they violated her Fourteenth Amendment right by conspiring to
commit, and committing, the First and Fourth Amendment violations.
The County and the officers moved for summary judgment on each
claim, and the district court granted the motion.4
With respect to the First Amendment claim, the district court rec-
ognized that the claim has three necessary elements: (1) speech that
is protected by the First Amendment, (2) retaliatory action that
adversely affected the protected speech, and (3) a causal relationship
between the speech and the retaliatory action.5 The district court held
that although Rich established the first element of this claim (i.e., she
engaged in protected speech), she failed to establish the other two ele-
ments. Specifically, the district court — primarily relying on ACLU
v. Wicomico County, 999 F.2d 780 (4th Cir. 1993) — held that Rich
failed to establish the second element (adverse affect) because the
action of the County and the officers "did not have a chilling effect,
nor did it impair or deny [Rich’s] right to critique the ASD or advo-
cate for animal rights. [Rich] continues to speak out against ASD and
continues her animals’ rights work." (J.A. 331-32). The district court
held that Rich also failed to establish the third element (causal con-
nection) because she did not present evidence to show that she was
investigated and given citations because of her speech:
[T]o the extent that there is a causal connection to be found,
it is between Plaintiff’s agitation and the police response of
4
The district court did not consider the officers’ claim of qualified
immunity, and that matter is not before us. In addition, the district court
stated that Rich had conceded that because all of the actions taken by the
County and the officers may be analyzed under the First and Fourth
Amendments, the Fourteenth Amendment claim is "without merit." (J.A.
336). Rich does not challenge that ruling on appeal.
5
The district court cited Suarez Corp. v. McGraw, 202 F.3d 676, 685-
86 (4th Cir. 2000), for authority on this point.
RICH v. MONTGOMERY COUNTY, MARYLAND 7
doing a neighborhood "sweep." The issuance of the citations
was caused by Plaintiff’s actions on that day. Plaintiff has
presented no evidence that the Defendants were seeking or
created an opportunity to cite Plaintiff for violations of the
animal control laws. They were in the vicinity at Plaintiff’s
request and did not instigate the series of events which
resulted in the citations.
(J.A. 333).
As to the Fourth Amendment claim, the district court noted that an
administrative search must comply with Fourth Amendment princi-
ples, and that the May 11 search required a warrant that was based
on probable cause. The district court held that Officer Kuster had
probable cause to seek the warrant to search Rich’s house for unvac-
cinated and unlicensed dogs because of his observations on May 8,
which included her failure to supply licensing information when
requested and her retreat into her home. The district court also held
that the information in the warrant application was truthful, and the
warrant was therefore valid. Consequently, the district court held that
the execution of the warrant was proper.
Turning to Rich’s allegations of a conspiracy against her, the dis-
trict court stated that although she did not expressly set forth a con-
spiracy claim in her complaint, it "assumed" that she was bringing a
conspiracy claim pursuant to 42 U.S.C. § 1985(3). (J.A. 333).6 Citing
Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995), the district court
noted that a plaintiff must plead specific facts showing a meeting of
the minds or a joint plan of action to survive a motion to dismiss a
§ 1985(3) claim, and it held that Rich had failed to allege "facts that
tend to show that a joint plan or agreement existed to deprive her of
her constitutional rights." (J.A. 334).
6
It is not clear why the district court treated the conspiracy claim as a
§ 1985(3) claim since the complaint makes no mention of that statute.
However, at oral argument, Rich’s counsel acknowledged that the con-
spiracy claim was brought under § 1985.
8 RICH v. MONTGOMERY COUNTY, MARYLAND
III
On appeal, Rich argues that the district court erred in granting sum-
mary judgment against her on her First and Fourth Amendment
claims because she presented sufficient evidence to establish the nec-
essary elements of those claims. Rich also argues that the district
court erred in granting summary judgment on her conspiracy claim
because she either adequately pled her claim or should have been
granted leave to amend her complaint to do so. Having carefully con-
sidered the arguments of counsel (both in their briefs and at oral argu-
ment), the record, and the applicable legal principles, we are not
persuaded that the district court erred in granting summary judgment
against Rich.
Specifically, we do not believe that Rich has presented sufficient
evidence to support her claims that she was targeted for selective
enforcement of the animal control laws in retaliation for her criticism
of ASD or that the officers lacked probable cause to search her house.
Instead, it is undisputed that the May 8 sweep (which had a legitimate
law enforcement purpose) was done at least partly in response to
Rich’s request, that the officers observed Rich’s dog running loose
during the sweep, and that Rich refused to provide information about
her dogs to the officers when they requested it. In our view, these
facts justified the officers’ issuance of citations, the resulting search
warrant, and the prosecution of the citations (one of which was found
in the County’s favor). Moreover, we do not believe that Rich has suf-
ficiently alleged or presented sufficient evidence of a § 1985 (or any
other) conspiracy.
We therefore affirm substantially on the reasoning expressed by the
district court in its order.
AFFIRMED