Filed: Apr. 13, 2016
Latest Update: Mar. 02, 2020
Summary: Case: 15-60365 Document: 00513463982 Page: 1 Date Filed: 04/13/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 15-60365 Fifth Circuit Summary Calendar FILED April 13, 2016 Lyle W. Cayce DEBORAH K. ALVERSON, Clerk Plaintiff - Appellant v. HARRISON COUNTY, MISSISSIPPI, By and Through its Board of Supervisors; MELVIN BRISOLARA, Harrison County Sheriff, in his official and individual capacity; CINDY GRIFFITH, Animal Control Officer and Deputy Sheri
Summary: Case: 15-60365 Document: 00513463982 Page: 1 Date Filed: 04/13/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 15-60365 Fifth Circuit Summary Calendar FILED April 13, 2016 Lyle W. Cayce DEBORAH K. ALVERSON, Clerk Plaintiff - Appellant v. HARRISON COUNTY, MISSISSIPPI, By and Through its Board of Supervisors; MELVIN BRISOLARA, Harrison County Sheriff, in his official and individual capacity; CINDY GRIFFITH, Animal Control Officer and Deputy Sherif..
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Case: 15-60365 Document: 00513463982 Page: 1 Date Filed: 04/13/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-60365 Fifth Circuit
Summary Calendar FILED
April 13, 2016
Lyle W. Cayce
DEBORAH K. ALVERSON, Clerk
Plaintiff - Appellant
v.
HARRISON COUNTY, MISSISSIPPI, By and Through its Board of
Supervisors; MELVIN BRISOLARA, Harrison County Sheriff, in his official
and individual capacity; CINDY GRIFFITH, Animal Control Officer and
Deputy Sheriff, Badge No. 422 in her official and individual capacity,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:13-CV-467
Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Appellant Deborah Alverson sued Harrison County, Mississippi and
others under 42 U.S.C. §1983 for the warrantless seizure of her dogs. Alverson
appeals the district court’s grant of summary judgment in favor of the
defendants and denial of her Motion for Relief from Final Judgment. Because
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 15-60365
there is no genuine dispute that the seizure was reasonable and illness, absent
evidence or explanation, does not constitute excusable neglect, we affirm.
I.
The summary judgment record contained the following evidence. On
March 26, 2012, the Harrison County Sherriff’s Office received a 911 call
reporting “a dog that’s been abandoned and starving to death” at Alverson’s
address. Harrison County Animal Control Officer Deputy Sherriff Cindy
Griffith responded to the report. Griffith removed Alverson’s dogs China and
Black Betty from Alverson’s driveway. Alverson’s neighbor, Lynda Moberg,
was present when Griffith removed the dogs.
Both dogs were impounded at the Humane Society of South Mississippi.
According to the Humane Society, China died during impoundment due to
“severe anemia and emaciation, [c]ompounded by a mild upper respiratory
tract infection.” Alverson was charged with two counts of Animal Cruelty.
Eventually those charges were dropped and Black Betty was returned to
Alverson seven months later.
According to Griffith’s affidavit, China and Black Betty were in poor
health when Griffith arrived at Alverson’s property in response to the 911 call.
Griffith observed that: (1) China was “unable to walk, could not see, and did
not respond to noise” and her eyes “were covered in mucus”; (2) Black Betty
only walked on her front legs; (3) both dogs were “covered in fleas, including
flea feces,” with “extremely overgrown claws”; and (4) both dogs appeared to be
underweight and starving with no visible source of food or water besides a
pond. Griffith believed “the owner of the dogs had committed the crime of
animal cruelty and/or neglect.”
In her brief on appeal, Alverson asserts that the dogs “were not
undernourished” and that the she “fed them twice a day.” Alverson’s brief also
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indicates that, according to Moberg, the dogs “looked very hearty” and were
“not abandoned.” These assertions are not in the summary judgment record.
Alverson filed this lawsuit against Harrison County, as well as Harrison
County Sherriff Melvin Brisolara and Griffith in their official and individual
capacities. 1 Alverson brought claims under §1983 alleging that: (1) the
warrantless seizure of her dogs resulted in Fourth and Fourteenth Amendment
substantive due process violations; (2) her procedural due process rights were
violated because she was prevented from obtaining a hearing to gain her dogs’
release when Griffith failed to file paperwork; (3) Griffith abused the legal
process by filing unfounded Animal Cruelty charges, with the authorization of
her supervisors, in retaliation for Alverson’s complaints against Griffith; and
(4) Griffith initiated prosecution against Alverson without probable cause and
for retaliatory purposes. The district court dismissed the abuse-of-process
claim as time-barred and the claims against Brisolara in his official capacity
as redundant because Harrison County was also a party.
Brisolara, Griffith, and Harrison County moved for summary judgment
on all remaining claims. Alverson did not file a response to the motion for
summary judgment by the deadline. Four days later, Alverson’s counsel e-
mailed opposing counsel to confer on a Motion for Additional Time citing his
illness as the reason for the unfiled response. Opposing counsel did not
respond, and Alverson never filed the motion.
The district court granted summary judgment and dismissed Alverson’s
claims with prejudice. With regard to Alverson’s substantive due process claim,
the district court determined that those claims failed because Griffith’s
1 Appellee Harrison County adopts the briefs of Appellees Brisolara and Griffith.
3
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reasonable belief that the dogs evidenced crimes of animal abuse or neglect
gave her probable cause to seize the dogs without a warrant.
Alverson filed a timely motion for relief from final judgment under
Federal Rule of Civil Procedure 60(b)(1) which the district court summarily
denied. Alverson appealed.
II.
A.
We review de novo the district court’s grant of summary judgment. See
In re Deepwater Horizon, 807 F.3d 689, 693 (5th Cir. 2015). Summary
judgment is proper “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
Alverson argues that a fact issue precluded the district court’s grant of
summary judgment: the dogs’ condition at the time of seizure. 2 Alverson
contends the district court should have considered deposition excerpts that
allegedly established that the dogs were in good condition at the time of the
seizure. Because the deposition excerpts were not part of the summary
judgment record, we do not consider them here. Skotak v. Tenneco Resins, Inc.,
953 F.2d 909, 915 (5th Cir. 1992) (declining to consider articles attached to a
prior pleading when the articles were not referenced in a summary judgment
response). Alverson contends in the alternative that the district court was
aware of evidence creating a genuine dispute of fact from her prior pleadings.
2 Because that fact is relevant only to the substantive due process claim, Alverson has
waived all other claims on appeal. United States v. Scroggins, 599 F.3d 433, 446–48 (5th Cir.
2010) (inadequately briefed issues are waived).
4
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However, Alverson fails to identify specific facts in prior pleadings that might
create a genuine dispute. See id.
Based on the evidence actually in the summary judgment record before
the district court, there is no genuine dispute that Griffith’s seizure was
reasonable. The relevant aspect of the plain view doctrine dictates that a
warrantless seizure is reasonable if there was probable cause to believe that
the seized object was evidence of a crime. United States v. Buchanan,
70 F.3d
818, 825–26 (5th Cir. 1995). Griffith was an animal control officer. She was
aware that a 911 caller expressed concern for the dogs’ health. When Griffith
arrived at Alverson’s property, she observed that one dog was unable to see or
hear. She saw that both dogs had trouble walking, were covered in fleas, and
had overgrown claws. Griffith also believed both dogs were underweight and
without any visible food. Accordingly, Griffith’s seizure of the dogs was
reasonable and did not violate Alverson’s Fourth or Fourteenth Amendment
rights. See
id. at 826.
B.
We review the district court’s denial of a Rule 60(b)(1) motion for abuse
of discretion. United States v. Fernandez, 797 F.3d 315, 318 (5th Cir. 2015).
Rule 60(b)(1) allows the court to relieve a party from a final judgment for
mistake, inadvertence, surprise, or excusable neglect. Fed. R. Civ. P. 60(b)(1).
Parties can be held accountable for their counsel’s acts and omissions.
Silvercreek Mgmt. v. Banc of Am. Sec. LLC,
534 F.3d 469, 472 (5th Cir.
2008).
Alverson argues that her attorney’s illness amounted to excusable
neglect warranting Rule 60(b)(1) relief. Absent evidence or explanation, illness
does not qualify as excusable neglect. See Shaffer v. Williams, 794 F.2d 1030,
1033–34 (5th Cir. 1986). The record lacks evidence showing that counsel’s
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illness prevented him from contacting the court regarding his illness, seeking
a timely extension of the summary judgment response deadline, or explaining
his failure to contact the court. See id. The district court did not abuse its
discretion in determining that Alverson had not shown excusable neglect
under Rule 60(b)(1).
AFFIRMED. 3
3 We DENY AS MOOT Appellees’ Joint Motion to Strike Portions of Appellant’s Reply
Brief.
6
