Tiffany M C Coy v. Raymond Harrison , in his individual capacity

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2348
T IFFANY M C C OY ,
Plaintiff-Appellant,
v.
R AYMOND H ARRISON , in his individual capacity,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 97 C 50402— Philip G. Reinhard, Judge.
____________
A RGUED M ARCH 1, 2002—A UGUST 21, 2003
____________
Before F LAUM , Chief Judge, B AUER and H ARLINGTON
W OOD , J R ., Circuit Judges.
H ARLINGTON W OOD , J R ., Circuit Judge. Plaintiff Tiffany
McCoy (“McCoy”) filed suit in the United States District
Court for the Northern District of Illinois, against Raymond
Harrison (“Harrison”), an animal welfare investigator for
the Illinois Department of Agriculture (“IDA”), alleging

-- 1 of 10 --

2 No. 01-2348
1 In the original complaint, Tiffany McCoy and her husband
Timothy McCoy filed suit against Raymond Harrison and Keen
Hudson, an employee of the Lee County Sheriff’s Department.
That complaint had a total of fifteen counts pursuant to 42 U.S.C.
§ 1983, in addition to numerous state law tort claims. The McCoys
subsequently filed an amended complaint, dropping Hudson but
adding two additional defendants, Todd Atwell, a deputy sheriff
of Lee County, and Lee County, a political body. The district court
granted a motion to dismiss counts III through XVI, thereby dis-
posing of all claims against Atwell and Lee County. The McCoys
then voluntarily dismissed count I, leaving only counts II and
VIII, both alleging Harrison’s actions violated the Fourth and
Fourteenth Amendments. The McCoys filed a second amended
complaint with two counts, which were identical to counts II and
VIII. Count I alleged Fourth Amendment violations against
Harrison in his capacity as a state employee and count II alleged
the same violations in his capacity as a member of the Lee County
Board. When the district court dismissed count II, Timothy McCoy
was dismissed as a plaintiff. After filing a notice of appeal, plain-
tiffs moved for Timothy McCoy to be dismissed as an appellant.
2 Assessments vary as to the number of dogs kept on the prop-
erty, ranging from eighteen to forty. Both plaintiff and defendant
seem to agree at the particular time of the incident, McCoy had
approximately twenty-five dogs.
a violation of the Fourth Amendment with Harrison’s
use of “excessive force.” 1 McCoy now appeals the district
court’s order of summary judgment in favor of Harrison. We
affirm.
I. BACKGROUND
We keep to the basic facts as presented by McCoy. McCoy
has lived with her husband in Lee County, in northern
Illinois, since 1996. Prior to that, she lived in Ogle County.
At both places, she kept approximately thirty dogs, twenty-
five 2 of which lived outside the house in separate kennels.
McCoy maintains that the dogs at the Lee County residence

-- 2 of 10 --

No. 01-2348 3
3 McCoy admits that she bred and sold dogs while in Ogle
County.
4 Harrison acted under state law pursuant § 70/10 of the Humane
Care for Animals Act, 510 I LL . C OMP . S TAT . 70 (1993), entitled
“Entry upon premises for investigation of complaints,” which pro-
vides:
Upon receiving a complaint of a suspected violation of this
Act, any Department investigator, law enforcement official,
or an approved humane investigator may, for the purpose
of investigating the allegations of the complaint, enter during
normal business hours upon any premises where the animal
or animals described in the complaint are housed or kept, pro-
vided such entry shall not be made into any building which is
a person’s residence, except by search warrant or court order
. . . .
5 The parties dispute this date but the district court stated “1994
or 1995” in its first memorandum opinion and order, dated May 4,
2000.
were kept in private, non-commercial kennels on her prop-
erty and were not used for commercial breeding or resale
purposes. 3 In fact, McCoy did not have a license to run a
commercial kennel or to professionally breed and sell dogs.
Harrison is an animal welfare investigator for the IDA
and a member of the Lee County Board (“Board”). As an
animal welfare investigator, Harrison regularly inspects
breeding kennels, boarding kennels, and pet shops that are
licensed by the State of Illinois. He also investigates com-
plaints made to the IDA that relate to animals in both Lee
and Ogle counties. 4
Harrison first met McCoy in 1994 or 1995 5 in Ogle County
when he and the animal control warden inspected her
property for possible animal welfare violations. Harrison
returned to the Ogle County property numerous times to
inspect the dogs and kennels before McCoy moved to Lee
County. In the course of his visits, Harrison had identified

-- 3 of 10 --

4 No. 01-2348
6 Harrison was a member of the Lee County Board, not the Lee
County Zoning Board.
7 McCoy’s original complaint stated the date was December 3,
1996. However, after reviewing official documents and records
from the IDA, she conceded in her deposition that she had been
mistaken as to the date.
himself as being an animal investigator with the IDA, and
on one occasion gave McCoy his business card and a book of
IDA regulations on maintaining animals.
After McCoy moved to Lee County, Harrison visited the
property several times between July 7 and November 7,
1996. He told the McCoys that they needed a variance or a
zoning change to operate their kennel, that he was a mem-
ber of the Lee County Board, 6 and that he would see they
never received the necessary zoning. However, the McCoys
never submitted an application for a zoning change and
were never cited by Lee County for not having the proper
zoning.
On August 27, 1996, the Lee County Animal Control Cen-
ter received a call complaining about the condition of the
dogs and kennels on the McCoy property. While the in-
vestigation of this complaint was ongoing, on November 7,
1996, 7 at approximately 8:00 a.m., Harrison walked onto
the McCoy property. McCoy warned him several times to
get off her property. Harrison proceeded to the side and
back of the house towards the dog kennels, where he
wanted to take pictures of the dogs and their living condi-
tions.
According to McCoy, as Harrison attempted to open the
gate of one of the kennels, she reached with her left hand
to slam the gate shut, and “[t]hat’s when he took his right
hand and backhanded me on my face.” McCoy fell to the
ground and, when she looked up, Harrison was standing
over her with “his hand dug into my right arm, four finger-

-- 4 of 10 --

No. 01-2348 5
nail marks in my right arm just clenching his hand into
my arm.” After that, McCoy stated that “he let me go and
just walked . . . back down the driveway.” Harrison left and
McCoy called the police. Although Harrison was investi-
gating McCoy’s property as part of the complaint made
in August, and stated that he took pictures on November 7,
no citation was ever issued on or after November 7 against
McCoy. Harrison’s final contact with the McCoys was on
April 2, 1997, when he returned to the property with a Lee
County deputy sheriff, who inspected the kennels while
Harrison remained in the car. The two left without incident
and no one from the IDA has returned to the property since
that date.
McCoy filed a two-count complaint against Harrison,
suing him in his individual capacity as an Illinois official
under count I and as a Lee County official in count II,
alleging that he violated her Fourth Amendment right to
be free from unreasonable searches and seizures. On May
4, 2000, the district court denied summary judgment to
Harrison on count I and granted summary judgment in
Harrison’s favor on count II. After further proceedings, on
April 20, 2001, the court vacated its prior order from May
4, 2000, and granted summary judgment in favor of Harri-
son on McCoy’s “excessive force” portion of count I, stating
that while McCoy may have a state law complaint for bat-
tery against Harrison, there was no Fourth Amendment
violation because McCoy was never “seized” by Harrison. At
the same time, the district court also granted McCoy’s oral
motion to voluntarily dismiss the “unreasonable search”
portion of count I, thereby finalizing the case against
Harrison.
McCoy filed a notice of appeal on May 18, 2001. However,
on June 4, 2001, the district court issued an order noting
that the April 20 order “may not be a final appealable judg-
ment within the meaning of 28 U.S.C. § 1291,” because the
court had not disposed of McCoy’s claims against two other

-- 5 of 10 --

6 No. 01-2348
named defendants. The court requested that McCoy file a
brief memorandum as to why the claims against those de-
fendants should not be dismissed for lack of jurisdiction. On
June 15, 2001, an amended order was issued dismissing the
case, noting that “[a]ll prior orders in this case as to all par-
ties are final and appealable.”
II. ANALYSIS
We first address the jurisdictional question as to whether
there has been a final order entered in this case and, if so,
when it was entered. Our review on this issue is de novo.
See Trustees of Funds of IBEW Loc. 701 v. Pyramid Elec.,
223 F.3d 459, 463 (7 th Cir. 2000). The June 15, 2001 order
was final for purposes of § 1291 in that it “ends the litiga-
tion on the merits and leaves nothing for the court to do
but execute the judgment.” Van Cauwenberghe v. Biard, 486
U.S. 517, 521 (1988) (citation omitted); see Trustees of
Funds of IBEW Loc. 701, 223 F.3d at 463. “A notice of ap-
peal filed after the court announces a decision or order—but
before the entry of the judgment or order—is treated as
filed on the date of and after the entry.” F ED . R. A PP . P.
4(a)(2); see also FirstTier Mortg. Co. v. Investors Mortg. Ins.
Co., 498 U.S. 269, 274 (1991). Accordingly, we have jurisdic-
tion to hear this appeal even though the notice of appeal
was filed prior to the entry of the final order.
A grant of summary judgment is reviewed de novo, East-
man Kodak Co. v. Image Technical Services, Inc., 504 U.S.
451, 465 n.10 (1992), considering all of the available plead-
ings, depositions, transcripts, exhibits, and affidavits in the
light most favorable to the nonmoving party. Anderson v.
Liberty Lobby Inc., 477 U.S. 242, 247 (1986) (citing F ED . R.
C IV . P. 56(c)); Driebel v. City of Milwaukee, 298 F.3d 622,
636 (7 th Cir. 2002). However, “we are not required to draw
every conceivable inference from the record,” Gleason v.
Mesirow Financial, Inc., 118 F.3d 1134, 1139 (7 th Cir. 1997),

-- 6 of 10 --

No. 01-2348 7
and “mere speculation or conjecture” will not defeat a sum-
mary judgment motion. Estate of Phillips v. City of Milwau-
kee, 123 F.3d 586, 591 (7 th Cir. 1997).
We affirm a grant of summary judgment if no genuine,
triable issue of material fact exists. Anderson, 477 U.S. at
247-48 (citing F ED . R. C IV . P. 56); Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986). The moving party must then pre-
vail as a matter of law because the nonmoving party, who
bears the burden of proof, has failed to make a sufficient
showing on an essential element of the case. Celotex Corp.,
477 U.S. at 323.
In many excessive force claims brought under 42 U.S.C.
§ 1983, “the specific constitutional right allegedly infringed
by the challenged application of force . . . will be . . . the
Fourth Amendment’s prohibition against unreasonable seiz-
ures of the person, . . . .” Graham v. Connor, 490 U.S. 386,
394 (1989). “The validity of the claim must then be judged
by reference to the specific constitutional standard which
governs that right, rather than to some generalized exces-
sive force standard.” Id. (citation omitted). Excessive force
claims must be analyzed under the Fourth Amendment and
its “reasonableness” standard. Id. at 395.
“Under 42 U.S.C. § 1983, the [plaintiffs] were required to
establish that the [defendants], acting under color of state
law, deprived them of a constitutional right, in this in-
stance, their Fourth and Fourteenth Amendment freedom
from unreasonable seizure by the State.” Soldal v. Cook
County, 506 U.S. 56, 60 n.6 (1992) (citation omitted). How-
ever, “every official abuse of power, even if unreasonable,
unjustified, or outrageous, does not rise to the level of a fed-
eral constitutional deprivation. Some such conduct may
simply violate state tort law or indeed may be perfectly
legal, though unseemly and reprehensible.” Kernats v.
O’Sullivan, 35 F.3d 1171, 1175 (7 th Cir. 1994) (citation omit-
ted).

-- 7 of 10 --

8 No. 01-2348
McCoy’s claim focuses on the unreasonable seizure prong
of the Fourth Amendment. The Supreme Court applies a
two-part test to decide whether a person has been seized so
that Fourth Amendment protections are triggered; first, it
must be determined if physical force was used along with a
show of authority, and second, whether or not the person
submitted to the show of authority. California v. Hodari D.,
499 U.S. 621, 624-26 (1991). There must be “an intentional
acquisition of physical control,” Brower v. Inyo County, 489
U.S. 593, 596 (1989), with the state actor “restrain[ing] the
freedom of a person to walk away, [thereby] seiz[ing] that
person.” Tennessee v. Garner, 471 U.S. 1, 7 (1985) (citation
omitted).
McCoy has failed to address the second prong under
Hodari D., arguing that a seizure occurs with “the slightest
application of physical force.” McCoy must not only show
that her personal liberty had been restrained, Florida v.
Bostick, 501 U.S. 429, 435-37 (1991), but that she “actually
yield[ed] to a show of authority . . . .” Hodari D., 499 U.S. at
629. At no time was McCoy’s freedom of movement re-
strained. There is no question there was some type of alter-
cation, but immediately after, McCoy got up and went into
her home, and Harrison left the premises. He made no ef-
fort to direct or impede her movements. McCoy herself has
testified that Harrison did not try to restrain her after she
was knocked down, nor did he order her to remain where
she was. He asserted no authority as to her person and she
did not in any way submit to a show of authority. See Uni-
ted States v. $32,400.00, 82 F.3d 135, 139 (7 th Cir. 1996) (“a
fleeing suspect—even one who is confronted with an obvious
show of authority—is not seized until his freedom of
movement is terminated by intentional application of
physical force or by the suspect’s submission to the asserted
authority” (citation omitted)); see also Hodari D., 499 U.S.
at 626-27.

-- 8 of 10 --

No. 01-2348 9
“[E]ven unreasonable, unjustified, or outrageous conduct
by an officer is not prohibited by the Fourth Amendment
if it does not involve a seizure . . . .” Kernats, 35 F.3d at
1177; see also Carter v. Buscher, 973 F.2d 1328, 1332 (7 th
Cir. 1992) (“The Fourth Amendment prohibits unreasonable
seizures not unreasonable, unjustified or outrageous con-
duct in general.” (emphasis in original)). In another Su-
preme Court case dealing with a state prisoner who brought
a § 1983 action against a corrections officer, the Court
found that there was no Fourth Amendment violation and,
even though there may have been intentional conduct on
the part of the state actor, a commonlaw tort suit offered an
adequate remedy. Hudson v. Palmer, 468 U.S. 517, 534-35
(1984).
McCoy maintains that she was “seized” when Harrison hit
her and dug his fingernails into her arm. However, McCoy
herself testified that, after the altercation, Harrison “let me
go and just walked . . . back down the driveway,” and drove
away. While Harrison’s actions may have caused her injury,
there is no evidence to show he intended to or did acquire
physical control over her person, see Brower, 489 U.S. at
596, nor was there a show of authority and restraint of
McCoy’s movements. See Hodari D., 499 U.S. at 626. The
undisputed facts show that McCoy was not seized within
the meaning of the Fourth Amendment. See County of
Sacramento v. Lewis, 523 U.S. 833, 843-44 (1998) (citing
Hodari D., 499 U.S. at 626, and Brower, 489 U.S. 596-97);
see also Cameron v. City of Pontiac, 813 F.3d 782, 785-86
(6 th Cir. 1987) (finding that even with use of deadly force,
where there was no actual physical seizure, “the alleged un-
reasonableness of the officers’ conduct cannot serve as a
basis for a § 1983 cause of action anchored in the Fourth
Amendment,” even though the suspect died, from other
causes independent of the officers’ use of deadly force, while
fleeing).

-- 9 of 10 --

10 No. 01-2348
III. CONCLUSION
The district court was correct in concluding there was no
seizure, and therefore, no Fourth Amendment claim. The
summary judgment order granted by the district court is
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-21-03

-- 10 of 10 --