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In Rose v. City and County of Denver, No. 17-cv-2263-MSK-STV (D. Colorado 2018), the owners of several French Bulldogs sued the city and county for the seizure of their dogs. The Plaintiffs are owners of French Bulldogs — Raven, Vinnie, Soufflé, Bechamel, Champagne, Wyatt, Biscuit, Beignet, Pearl, and Nugget (collectively “the Dogs”) — that are registered with the American Kennel Club. Each Plaintiff gave physical possession of a Dog or Dogs to Marleen Puzak in order to board, care, and show them in dog shows. On July 7, 2017, Defendant City and County of Denver (“the City”) seized the Dogs from Ms. Puzak’s home for unstated reasons. Without consent of the Plaintiffs, the City has spayed/neutered some of the Dogs and performed other veterinary procedures that reduce the value of the Dogs as show dogs. The Plaintiffs sought to retrieve their dogs from City custody, but their requests have been refused. Instead, the City has notified the Plaintiffs that their Dogs would be offered to new owners for adoption. Despite Plaintiffs’ repeated requests, the City has provided no process by which Plaintiffs can prove their ownership of the Dogs, seek return of the Dogs or object to medical treatments that reduce their value.

The Complaint asserts three causes of action: deprivation of due process in violation of the Fourteenth Amendment, extreme and outrageous conduct causing emotional distress, and willful and wanton conduct. The Defendants have moved to dismiss all claims.

A claim is subject to dismissal if it fails to state a claim for relief that is plausible on its face. To make such an assessment, the Court first discards the claims in the complaint that are merely legal conclusions or claims supported by mere conclusory statements. The Court then takes the remaining, well-pleaded factual contentions, treats them as true, and ascertains whether those facts support a plausible as compared to a conceivable claim.

A determination on whether a plaintiff’s procedural-due-process rights were violated is grounded in two questions: whether the individual had a protected property interest and whether the individual was afforded an appropriate level of process. The requisite level of process is generally a hearing before the government acts to impair the property interest, although the hearing need not afford the protections of a trial. Here, the Amended Complaint adequately alleges that Plaintiffs have a property interest in the Dogs, and that they were denied an opportunity to prove their interest and retrieve them.

The City seeks dismissal of this claim. The City contends that it is not responsible for the acts of its employees and that the Complaint fails to identify a municipal policy that violates the Plaintiffs’ due-process rights.

To have a claim, the plaintiff must allege the existence of the policy or custom and that the city intended the conduct to occur or was deliberately indifferent to the possibility that conformance with the custom or policy would result in unconstitutional conduct.

The due-process claim in the Amended Complaint is tethered to the City’s regulation on impounded animals, which provides for the release of impounded animals upon receipt of satisfactory proof that the person claiming the animal is the owner thereof. Nowhere in this provision or elsewhere does the Denver Municipal Code define what proof of ownership is satisfactory, who decides ownership issues, or what process is used to determine ownership rights in impounded animals. Thus, fairly stated, Denver’s policy is to not have a defined process, standard of proof, or decisionmaker with regard to determining ownership of impounded animals. It is this policy that is the moving force behind the City’s refusal to return the Dogs to the Plaintiff.

The remainder of the Defendants’ motion relates to a takings claim, which the Plaintiffs have not brought. The City’s motion to dismiss Plaintiffs’ due-process claim is denied.  the Defendants’ Motion to Dismiss is granted in part and denied in part. The Plaintiffs’ state-law claim(s) — for Extreme and Outrageous Conduct and for Outrageous Conduct Causing Severe Emotional Distress — are dismissed.

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