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Dogs Deserve Better, Inc. v. Terry

United States District Court, E.D. Virginia, Richmond Division

March 20, 2015

DOGS DESERVE BETTER, INC., et al, Plaintiffs,
TRACY TERRY, et al, Defendants.


JOHN A. GIBNEY, Jr., District Judge.

This matter comes before the Court on the defendants' Rule 12(b)(6) motion to dismiss for failure to state a claim. (Dk. No. 11.) Dogs Deserve Better, Inc. ("DDB"), and its founder and CEO, Tamira Thayne, filed suit against Tracy Terry (the animal control officer for Surry County, Virginia), the County, its Board of Supervisors, and several unnamed defendants, claiming constitutional and state law violations.

The plaintiffs bring eight claims against the defendants. Under 42 U.S.C. § 1983, Counts I and VI allege deprivations of the rights of DDB and Thayne, respectively, under the Fourth and Fourteenth Amendments. Counts II, III, IV, and V allege claims by DDB of state law conversion, trespass to chattels, and both common law and statutory conspiracy. Counts VII and VIII allege claims by Thayne of malicious prosecution and common law conspiracy.

The defendants do not contest at this stage of the proceedings Counts I, II, III, VI, and VII against Terry in her personal capacity, so the Court reaches no decision regarding them in this Opinion.

Surry County does not face liability as a matter of law for a § 1983 action under the facts of the Complaint, and the County enjoys sovereign immunity from state law tort claims arising from the actions of its employees. Claims against the Board and Terry in her official capacity are duplicative of the claims against the County. Accordingly, the Court DISMISSES all counts against these defendants.

Claims against "John Doe" defendants are nullities. When the plaintiffs decide whom to sue, they may move to join new defendants. Given that the events in his case happened in 2012, any claims against "John Doe" are likely barred by the statute of limitations. Lavender v. City of Roanoke Sheriff's Office, 826 F.Supp.2d 928, 936-37 (W.D. Va. 2011).

The plaintiffs have pled facts sufficient to state a claim for common law and statutory conspiracy. The Court, then, DENIES the defendants' motion to dismiss Counts IV, V, and VIII.


Tamira Thayne founded DDB in 2002 to advocate against tethering dogs, and DDB moved into its current facility in Surry County after Michael Vick's infamous Bad Newz Kennels operation shut down. DDB now operates Vick's old property as the Good Newz Rehab Center, providing a place of healing for mistreated dogs. Thayne strongly criticized Surry County's response to Vick's dog-fighting operation as "anemic." (Dk. No. 1 ¶ 5.)

On August 27, 2012, officers arrested Thayne pursuant to a warrant for animal cruelty, a class 1 misdemeanor, issued a summons for lack of space for an animal, a class 4 misdemeanor, and executed a search warrant of the premises based on allegations of unsanitary conditions, the use of Tasers and mace, and inadequate veterinary care. Terry had applied for the warrants and summons based on information from DDB employees and volunteers. During the search, officers seized one of Thayne's dogs, Jada, a pit bull terrier that had lived at the Center since 2011, and placed it in the custody of Surry Animal Control. Media helicopters circled over the Center and reporters covered the scene during the course of the search.

At a hearing two weeks later, on September 11, 2012, a Surry County General District Court Judge found no evidence of cruelty or neglect of Jada and ordered her returned to the Center. After numerous hearings, the Surry prosecutor chose to nolle prosequi the cruelty and mistreatment charges against Thayne on March 5, 2013. Thayne claims that the accusations, arrest, search, seizure, and the attendant media coverage, caused her personal humiliation and professional harm. Donations to DDB dropped and speaking invitations decreased. The plaintiffs brought this action seeking compensatory and punitive damages, attorney's fees, and costs.


A. Local Government Defendants

DDB and Thayne name among the defendants in this suit Surry County, its Board of Supervisors, and Terry in her official capacity as the County's animal control officer. In order for "municipalities and other local government units" to face liability in a § 1983 action, a plaintiff must allege a constitutional violation caused by "a policy statement, ordinance, regulation, or decision officially adopted" or "pursuant to governmental custom' even though such a custom has not received formal approval." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018 (1978). A plaintiff may not assert liability against a ...

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