Jutta Kosielowsky v. Sammies Friends ( 2020 )

NOT FOR PUBLICATION FILED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.
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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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