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Bennis v. Kleven

United States District Court, W.D. Wisconsin

August 5, 2016

GARY BENNIS, Plaintiff,
v.
ERIC KLEVEN, Defendant.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Defendant Eric Kleven is a private contractor who performs tax assessments for the Town of Garfield, Wisconsin. Plaintiff Gary Bennis owns 177 acres of mostly undeveloped property in the Town of Garfield. Kleven went on to Bennis’s land to perform a tax assessment, and he discovered three small, elevated cabins, which resulted in a modest increase in the assessed value of Bennis’s property. Bennis got the town to reduce the assessment, but now he is going after Kleven with this suit under 42 U.S.C. § 1983. Bennis contends that Kleven’s entry and inspection of his property was an unreasonable search that violated the Fourth Amendment.

         Kleven has moved for summary judgment, Dkt. 20, contending that the inspection of Bennis’s property was a legal property tax assessment, and that he did not conduct a search because he inspected Bennis’s property only from open fields, without entering the cabins or their curtilage. Bennis may not have been properly notified of Kleven’s inspection, and for purposes of this motion, the court will assume that the cabins are the equivalent of a residence in which Bennis had a reasonable expectation of privacy. But Bennis has not adduced evidence from which a reasonable jury could conclude that Kleven climbed the structures to enter the cabins or their curtilage. Thus, Kleven did not conduct a “search” within the meaning of the Fourth Amendment, and the court will grant Kleven’s motion for summary judgment.

         UNDISPUTED FACTS

         Bennis owns 177 acres of land in the Town of Garfield, Wisconsin. When he bought the land in 2009, the property had a few simple deer stands. By 2012, Bennis had built an open shed and six elevated structures. The parties have sometimes referred to these structures as “deer stands, ” but at least for purposes of this case, Bennis has taken to calling them “cabins.” The court will go with “cabins, ” because they are enclosed under a roof, they have locking doors, glass windows, and woodstoves for heat. Each of the cabins is approximately 30 feet above the ground, and most of them have some area of deck at the level of the cabin. The main cabin is particularly home-like: it could sleep five, its floor is covered with carpet and tile, and it has a small kitchen. The main cabin has a spacious, wrap-around deck. The other five cabins are apparently somewhat more spartan, although Bennis’s declaration implies that members of Bennis’s family have slept in them. For purposes of Kleven’s motion, the court will assume that all the cabins are essentially residences in which Bennis would have a reasonable expectation of privacy. There are no posted “Do Not Enter” or “No Trespassing” signs on the Bennis land.

         Kleven is a private contractor engaged by the Town of Garfield to assess properties for taxes. On June 5, 2012, Kleven came to Bennis’s property to perform a tax assessment without notifying Bennis or getting his consent or a warrant. Kleven found three of the cabins (not the main one) and the shed. Kleven measured each of the three cabins and took photographs. Kleven left the property without leaving notice of the assessment. Although Kleven contends he mailed notice of the assessment to Bennis, Bennis denies receiving any mailed notice. For purposes of Kleven’s motion, the court will assume that Kleven provided no notice either before or after the assessment, and that Bennis found out about Kleven’s entry onto his property only when he received notice of the increased tax assessment. Relying on preexisting data about the property and his measurement and inspection of the cabins, Kleven assessed the newly discovered improvements at $22, 600. Bennis’s appeal to the Board of Review reduced his assessment by $7, 800.

         Bennis filed this suit under 42 U.S.C. § 1983, which raises a federal question; the court therefore has jurisdiction under 28 U.S.C. § 1331.

         ANALYSIS

         A. Summary judgment standard

         Kleven has moved for summary judgment that he did not conduct an illegal search, and he has supported his motion with admissible evidence. Thus, to avoid summary judgment, Bennis “must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). He may not simply rely on the allegations in the pleadings to create such a dispute, but must “demonstrate that the record, taken as a whole, could permit a rational finder of fact to rule in [his] favor.” Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). Because Bennis bears the burden of proving that Kleven violated his constitutional rights, he must present “sufficient evidence to create genuine issues of material fact to avoid summary judgment.” McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010).

         B. Section 1983 prerequisites

         The parties agree that Bennis has satisfied the prerequisites to a suit under 42 U.S.C. § 1983. Kleven was acting as an agent of the Town of Garfield, and thus he was acting under color of state law when he conducted the assessment. See Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001). Kleven himself conducted the assessment, so he would be the individual who personally committed any constitutional violation. Id.

         C. Constitutional claims

         The court must view the record in the light most favorable to Bennis. Accordingly, the court will assume that Kleven did not comply with the notice requirements for a tax assessment (because he did not leave a notice at the property after his inspection). Although irregularities in Kleven’s tax assessment might violate state law, they do not establish a violation of his constitutional rights, in this case the Fourth Amendment. The Fourth Amendment provides, in relevant part, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend IV. Fourth Amendment interests are particularly acute when the purported search ...


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