The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Currently pending before the Court is the Individual Defendants'  Motion for Judgment on the Pleadings in which they assert that they are entitled to qualified immunity against Plaintiffs' constitutional claims and a qualified privilege against Plaintiffs' common law tort claims.*fn1 The Court has throughly reviewed the Individual Defendants' Motion, Plaintiffs' Opposition, the Individual Defendants' Reply, and the relevant statutes and case law. Based upon the foregoing, the Court shall GRANT-IN-PART and DENY-IN-PART WITHOUT PREJUDICE the Individual Defendants' Motion. In particular, the Court concludes that the Individual Defendants are entitled to qualified immunity from the personal capacity claims for damages included in Plaintiffs' constitutional claims, insofar as those claims are based on the Individual Defendants' alleged enforcement of the District of Columbia Freedom from Cruelty Animal Protection Act of 2000, D.C. Code 22-1001 et seq. (the "Act"), as written. However, with respect to the other allegations incorporated in Plaintiffs' constitutional claims, i.e., Plaintiffs' allegations regarding actions taken after their pets were purportedly seized, the Individual Defendants' briefs are insufficient to establish their entitlement to qualified immunity. Similarly, while the Individual Defendants assert that they are entitled to a qualified law enforcement privilege against Plaintiffs' common law tort claims, they have not established that that privilege is applicable to the allegations actually contained in Plaintiffs' claims for damage to personal property and conversion. Accordingly, if the Individual Defendants believe they are entitled to qualified immunity against Plaintiffs' allegations regarding actions taken after their pets were allegedly seized or a qualified privilege against Plaintiffs' common law tort claims, they must properly and thoroughly brief those issues for the Court's consideration.
Plaintiffs Sunday Daskalea, Frances Norris, and Willie Jackson allege that they "are pet owners in the District of Columbia who have had their pets seized, detained and damaged without due process of law." Am. Compl. ¶ 1. Plaintiffs' Amended Complaint includes both constitutional challenges to the Act and common law claims regarding the alleged seizure, detention, and damaging of Plaintiffs' pets. See generally Am. Compl. Plaintiffs' constitutional challenges to the Act focus on D.C. Code § 22-1004, which is entitled "Arrests without warrant authorized; notice to owner." D.C. Code § 22-1004. That section provides:
(a) Any person found violating the laws in relation to cruelty to animals may be arrested and held without a warrant . . . . The person making the arrest or the humane officer taking possession of an animal shall have a lien on said animals for the expense of such care and provisions.
(b)(1) A humane officer of the Washington Humane Society may take possession of any animal to protect it from neglect or cruelty. The person taking possession of the animal or animals, shall use reasonable diligence to give notice thereof to the owner of animals found in the charge or custody of [a] person arrested, and shall properly care for the animals until the owner shall take charge of the animals; provided that, the owner shall take charge of the animals within 20 days from the date of the notice.
(2) If the owner or custodian of the animal or animals fails to respond after 20 days, the animal or animals shall become the property of the Washington Humane Society and the Washington Humane Society shall have the authority to:
(A) Place the animal or animals up for adoption in a suitable home;
(B) Retain the animal or animals; or
(C) Humanely destroy the animal or animals.
With respect to the individual Plaintiffs, their Amended Complaint alleges that on May 17, 2002, Plaintiff Sunday Daskalea left her dog unattended in her car "while she went up to her apartment to get some things." Id. ¶ 31. According to Plaintiffs, the dog, "a full-breed, pedigreed 'Dogo Argentino,'" which Ms. Daskalea had purchased "for breeding, as well as companionship," "had just been walked, watered and fed, and was in absolutely no danger" in Ms. Daskalea's car. Id. ¶¶ 31, 33-34. Plaintiffs do not specify how long Ms. Daskalea's dog was left unattended, but allege that while Ms. Daskalea was in her apartment, Defendant Sonya Scnoor, a Washington Humane Society (WHS) law enforcement officer, seized the dog from Ms. Daskalea's car. Id. ¶ 36. Plaintiffs assert that Ms. Daskalea's "[r]epeated efforts" to retrieve her dog from the WHS were unsuccessful because WHS "refused to return" the dog," id. ¶ 39, and further allege that "[d]uring the time that defendants had custody and control of" Ms. Daskalea's dog, the dog "was forcibly sterilized by the defendants" without Ms. Daskalea's permission and against Ms. Daskalea's will, id. ¶ 41. Ms. Daskalea's dog was eventually returned to her, but Plaintiffs allege that the dog's "personality has changed, [that Ms. Daskalea] is denied the love and companionship of her dog," and that Ms. Daskalea "is permanently prevented from breeding [the dog], causing pecuniary losses." Id. ¶¶ 43, 45. According to Plaintiffs, Ms. Daskalea "was denied the right to notice and hearing to contest the seizure, detention, sterilization and return of her pet." Id. ¶ 42.
Plaintiffs allege that on July 19, 2001, Plaintiff Frances Norris left her dog unattended in her car while she "went to [a] nearby sports club." Id. ¶ 47. According to Plaintiffs, Dr. Norris "parked her car under a large shade tree . . . cracked all four car windows, [and] left food and water for" her dog. Id. Plaintiffs allege that upon returning to her car, Dr. Norris found that WHS officer H.O. Boozer had entered her car and seized her dog "without her permission, knowledge or consent." Id. ¶ 48. Plaintiffs allege that, at the time Dr. Norris's dog was seized, "she was perfectly fine and in absolutely no danger," id. ¶ 49, and further allege that Dr. Norris's efforts to retrieve her dog from WHS were unsuccessful, id. ¶ 54. According to Plaintiffs, WHS eventually agreed to return Dr. Norris's dog "but only if Dr. Norris agreed to pay unreasonable and unjustifiable fees and costs, and submit [her dog] to unnecessary medical treatment." Id. ¶ 55. Dr. Norris agreed to the medical treatment in order to get her dog back, and alleges that when the dog was released "she was in terrible condition." Id. ¶ 56. Plaintiffs allege that, like Ms. Daskalea, "Dr. Norris was denied the right to notice and hearing to contest the seizure, detention, terms of release and fees associated with the seizure and detention of her pet." Id. ¶ 57.
Plaintiffs allege that on October 11, 2003, WHS law enforcement officers entered the home of Plaintiff Willie A. Jackson and "illegally seized" his dog, against Mr. Jackson's will. Id. ¶ 61. Plaintiffs assert that Mr. Jackson's dog "was a well-cared for animal, and enjoyed the benefits of a loving owner," but had "developed terminal cancer." Id. ¶¶ 58-59. Plaintiffs further assert that "[s]ince at least July of 1999, Mr. Jackson religiously brought" his dog to a veterinary clinic for veterinary care and that the dog "had regular check-ups, annual vaccines, and all the medical care Mr. Jackson and [the dog's] veterinarian deemed appropriate." Id. ¶ 60. According to Plaintiffs, after WHS seized Mr. Jackson's dog, it refused to return the dog "despite numerous demands," id. ¶ 61, and despite being provided with the dog's veterinary records, id. ¶ 62, unless Mr. Jackson would "consent to, and pay for, [the dog] to undergo major, cancer surgery, and other heroic efforts, even though Mr. Jackson, in consultation with [the dog's] veterinarian, decided against this radical treatment," id. ¶ 64. Plaintiffs allege that Mr. Jackson was compelled to agree to the cancer surgery, which was ultimately unsuccessful, and the dog died. Id. ¶ 65. According to Plaintiffs, "Mr. Jackson was denied the right to notice and hearing to contest the seizure, detention, terms of release, medical treatment, and fees associated with the seizure, detention, release and medical treatment of his pet." Id. ¶ 70.
Plaintiffs' Amended Complaint names as Defendants the Washington Humane Society; the District of Columbia; Jody Huckaby, individually and in her official capacity as Executive Director of WHS; Adam Parascandola, individually and in his official capacity as Director of Law Enforcement for WHS; Sonya Scnoor, individually and in her official capacity as the WHS law enforcement officer who seized and detained Ms. Daskalea's dog; Rosemary Vozobule, individually and in her official capacity as a WHS law enforcement officer who refused to return Ms. Daskalea's dog; Lindsay Gardewin, individually and in her official capacity as a WHS law enforcement officer who seized and refused to return Mr. Jackson's dog; and H.O. Boozer, individually and in her official capacity as the WHS law enforcement officer who seized and refused to return Dr. Norris's dog.*fn2 Significantly, Washington Humane Society is no longer a defendant to this action, as Judge John Garrett Penn determined that WHS is non sui juris and therefore granted WHS' motion to dismiss Plaintiffs' Amended Complaint as against WHS. See Daskalea v. Washington Humane Society, 480 F. Supp. 2d 16, 22-24 (D.D.C. 2007). The District of Columbia remains a Defendant to Plaintiffs' Amended Complaint. See Am. Compl. ¶ 10.
Plaintiffs' Amended Complaint originally included eight Counts, three constitutional claims and five common law tort claims. Count I asserted a general claim pursuant to 42 U.S.C. § 1983 that the various Defendants "deprived them of personal and property interests without due process of law, in violation of the fifth and fourteenth amendments to the Constitution," as well as their "right to be free from unreasonable searches and seizures pursuant to the fourth amendment to the Constitution," id. ¶¶ 71-74; Count II alleged that the Act is unconstitutional on its face and as customarily enforced, id. ¶¶ 75-78; and Count III alleged that Defendants' "application of the Act to the individually named plaintiffs violated their due process rights," id. ¶¶ 79-80; Count IV alleged destruction of property, id. ¶¶ 81-82; Count V alleged conversion, id. ¶¶ 83-85, Count VI alleged fraud with respect to each ...