When Fairfax resident Barry McCabe took his dog Kaiser, a 2-year-old Cavalier King Charles Spaniel, out for a walk on June 30, 2016, he did not expect the expectedly mundane stroll to change his life forever.

By the end of that morning, Kaiser was dead, and McCabe was in the emergency room with injuries he suffered after attempting to protect his dog from a Pit Bull that allegedly attacked them both near the Providence Community Center.

The Pit Bull’s owner had recently adopted the dog from the Fairfax County Animal Shelter and was training him off-leash at the time of the attack, according to a complaint that McCabe filed with the U.S. District Court for the Eastern District of Virginia in Alexandria on Jan. 11, 2018.

Earlier, a Fairfax County Circuit Court judge ruled the owner not guilty of breaking off-leash laws on July 28, 2016, but the dog was declared dangerous, and the owner signed him back over to the animal shelter.

McCabe filed his lawsuit against the animal shelter again in January 2018, but a conflict of interest led his lawyer at the time to recuse himself, resulting in a ‘nonsuit’ that gave McCabe a six-month window to re-file.

McCabe says he has since obtained animal shelter records that show the Pit Bull that allegedly attacked him and his dog had a history of aggressive behavior and that shelter staff allegedly put the dog up for adoption several times despite being aware of that past violence.

In a federal lawsuit filed again in January, 2019 against the Fairfax County Animal Shelter, McCabe argued that the shelter’s actions constituted a violation of his due process rights under the Fifth and Fourteenth Amendments to the U.S. Constitution.

The complaint also contained counts of gross negligence, public nuisance, product liability, and breach of express warranty.

“What happened to me wasn’t an accident, but it was a result of systemic failure on the county’s behalf,” McCabe said. “…This isn’t about them accidentally forgetting to sign a document. This is about them blatantly disregarding the law and procedures that were in place to protect against this.”

WUSA reported in August 2016 that it had obtained Fairfax County Animal Shelter records showing that the Pit Bull in question had been placed for adoption three times.

The first adoptive family returned him to the shelter in December 2015, and a second adoption ended swiftly when the dog was returned after three weeks. The dog was placed for adoption a third time even though a case file noted that he “was aggressive sometimes.”

According to WUSA, five shelter workers had been “violently mauled” by dogs, including ones on the adoption floor, and the Pit Bull was not the only dog with an aggressive history that the shelter had placed for adoption.

According to records obtained by McCabe, the Pit Bull’s journey through the animal shelter system began in October 2015 when he was admitted to the Shenandoah Valley Animal Service Center after he was found running at large near Elkhorn Lake in Augusta County.

The Shenandoah Valley center identified the Pit Bull in its canine intake and health record as a Labrador and boxer mix named Maple, though an Augusta County animal custody record describes the dog’s breed as Pit Bull.

An animal custody record dated Nov. 2, 2015 from the Shenandoah Valley center shows that the dog’s owner returned the adoption after he grabbed an older cat when the owner returned home, leading the cat to “die from injuries.”

The Shenandoah Valley center transferred Maple to the Fairfax County Animal Shelter on Nov. 19, 2015, according to a transfer in document contract.

Fairfax County Animal Shelter adoption contracts show that Maple, who was later renamed Odin, was adopted on Dec. 17, 2015 and again on Jan. 19, 2016.

McCabe, who represented himself, appeared in court last week on Mar. 8 for a motion hearing after attorneys for the Fairfax County Animal Shelter filed a motion to dismiss on Feb. 5.

As a result of the Pit Bull’s attack, McCabe says he incurred lacerations, bite wounds, and various other injuries that required shoulder reconstruction surgery with five months of physical rehabilitation. He told the U.S. District Court that he is now living with permanent spine damage.

In addition to citing legal standards, the Fairfax County Animal Shelter argued in its motion to dismiss that McCabe had failed to state a claim sufficient for relief to be granted and that the shelter’s status as an entity of Fairfax County means that, under Virginia law, it cannot be sued.

In the case Muniz v. Fairfax County Police Department, the Eastern District of Virginia ruled in 2005 that the FCPD could not be sued because it “has no legal existence separate and apart from Fairfax County” and the Code of Virginia has no provisions allowing the department to be sued as a separate entity.

The same precedent was used by the U.S. District Court for the Western District of Virginia in May 2016 in the case Ross v. Franklin County Department of Social Services, where the plaintiff filed an employment discrimination charge against the department.

“In Virginia, an operating division of a governmental entity cannot be sued unless the legislature has vested the operating division with the capacity to be sued,” Chief U.S. District Judge Glen Conrad wrote in his opinion dismissing the lawsuit.

The Fairfax County Animal Shelter’s counsel, Assistant County Attorney Jamie Greenzweig, argued before U.S. District Senior Judge Claude Hilton during the motion hearing that the shelter was “entitled to absolute sovereign immunity” and that McCabe had failed to follow state procedures for seeking compensation.

In a memorandum of opposition to the animal shelter’s motion to dismiss filed on Mar. 6, McCabe requested that the court grant him the ability to amend his complaint to substitute Fairfax County as the plaintiff instead of the Fairfax County Animal Shelter.

Hilton ultimately dismissed McCabe’s due process violation claims, questioning why the lawsuit had been filed in federal court.

“I realize there was a fairly serious injury, but I don’t see any reason why this is in federal court,” Hilton said.

The judge also dismissed the lawsuit’s other counts, but he did so without prejudice, saying that McCabe should file them with the state court instead.

Admitting that navigating the legal system as someone without a background in law, McCabe says he was disappointed by Hilton’s ruling but took heart in the fact that the dismissal came largely on procedural grounds, rather than as a reflection of the merits of his case.

He plans to bring his lawsuit to state court if his window for an appeal has not yet run out.

“I have a lot more work to do, but it was dismissed without prejudice so there’s still life,” McCabe said. “They were hiding behind procedural claims. Not once did the county address any of the laws that they broke.”

Fairfax County disputes McCabe’s claims that the animal shelter covered up the Pit Bull’s history.

“The Fairfax County Animal Shelter’s adoption policy is transparent regarding every animal’s behavior and medical history,” Fairfax County Director of Public Affairs Tony Castrilli said. “We are satisfied with the judge’s ruling and we are committed to ensuring the safety of adopted animals and the community.”

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