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Bishop v. Bosquez

United States District Court, E.D. Wisconsin

June 29, 2018

BECKY L. BISHOP and KEVIN E. BISHOP, Plaintiffs,
v.
PETER BOSQUEZ, TIM WILZ, KEVIN STUDZINSKI, JOHN MOCADLO, SHANE BAZILE, DEAN NOLAN, MATT KOLTZ, WE CARE ANIMAL HOSPITAL, and SANDRA FINGER, Defendants, and STATE FARM FIRE AND CASUALTY COMPANY, Intervenor-Plaintiff, and ZURICH AMERICA INSURANCE COMPANY, Intervenor-Defendant.

          DECISION AND ORDER

          William C. Griesbach, Chief Judge

         Plaintiffs Becky L. Bishop and Kevin E. Bishop, who are currently representing themselves, filed the instant civil rights action related to the events surrounding the seizure of their horses. In particular, Plaintiffs asserts that various Waupaca County Sheriff's Department and Shawano County Sheriff's Department officers violated their constitutional rights by using excessive force during the illegal search and seizure of their horses under 42 U.S.C. § 1983, and violated state law. They also maintain that Dr. Matt Koltz of We Care Animal Hospital violated their constitutional rights under § 1983 and assert various state law claims against Dr. Koltz and Dean Nolan, the horses' care giver. State Farm Fire and Casualty Company and Zurich America Insurance Company intervened in this action and seek a declaration that Plaintiffs' claims against Dr. Koltz for wrongful seizure of the horses, improper billing, false swearing and perjury would not be covered under Dr. Koltz' policies. Arising under federal law, the § 1983 claims provide this court with jurisdiction under 28 U.S.C. § 1331. The court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.

         Currently pending before the court are five motions for summary judgment filed by the defendants, the intervenor-plaintiff, and the intervenor-defendant. For the following reasons, the officers' motion for summary judgment will be granted-in-part, and Koltz and We Care Animal Hospital's motion will be granted with respect to the federal claims. The court will dismiss Plaintiffs' state claims without prejudice, as they are unrelated to the remaining federal claims and may be pursued in state court. Accordingly, the motions for summary judgment filed by Nolan, State Farm, and Zurich will be denied as moot.

         BACKGROUND

         The following facts are primarily taken from the officers' proposed findings of fact. Officers' Proposed Findings of Fact (OPFOF), ECF No. 106. Waupaca County Sheriff's Office Humane Officer Peter Bosquez arrived at property owned by Becky Bishop on July 30, 2013, after receiving reports of a malnourished horse. Bosquez investigated the property and observed several horses appearing to be malnourished and injured, fencing in a state of disrepair, and defects in the barn enclosure and floor. Waupaca County Detective Sergeant Karski and Janette Newell from the office of the Wauapca County Corporation Counsel arrived at the residence at approximately 1:30 p.m. and toured the premises with Ms. Bishop. Ms. Bishop assured them that she would seek veterinarian care for her horses and repair the fencing and barn stalls.

         On August 13, 2013, Bosquez returned to Ms. Bishop's property to determine whether Ms. Bishop followed through with her assurances. Bosquez noticed that while some horses appeared to be in better condition, other horses appeared malnourished and the fence and barn remained in a state of disrepair. Ms. Bishop indicated she had not yet contacted a veterinarian. Bosquez visited the property on September 4, 2013. A majority of the horses appeared to be in better health, but some continued to appear malnourished and underweight, the fence and stalls had not been fixed, and Ms. Bishop had not sought veterinary care. On September 28, 2013, Bosquez found that the fence and barn stalls remained in a state of disrepair.

         Based on Ms. Bishop's failure to provide better treatment for the horses and attempt to repair her property, Bosquez served an Abatement Order on Ms. Bishop under Wis.Stat. § 173.11 and Waupaca County Ordinance Chapter 12, Section 18 on September 29, 2013. The Order required that Ms. Bishop return her property to a state of repair and seek veterinarian care for the horse herd. Ms. Bishop subsequently requested a hearing before the Waupaca County Legislative, Judicial, Ethics, Safety, and Security Committee. At the October 22, 2013 hearing, Ms. Bishop consented to the terms of the Abatement Order, and the Committee unanimously voted to uphold the Order. On October 27, 2013, Bosquez observed that Ms. Bishop's fence was not repaired and was held together with twine. He then sought a search warrant to search the property with a veterinarian and to seize any malnourished horses. He obtained a search warrant on October 29, 2013, which required the assistance of a doctor of veterinary medicine. OPFOF ¶ 19; Koltz' Proposed Findings of Fact (KPFOF) ¶ 6, ECF No. 85. The County hired We Care Animal Hospital to assess the horses' condition on October 30, 2013 and to provide follow-up veterinary care as needed. KPFOF ¶ 9.

         Bosquez, Waupaca County Sheriff's Office Sergeant Kevin Studzinski, Sergeant Tim Wilz, and Detective Sergeant Rob Karski arrived at Ms. Bishop's property with the search warrant on October 30, 2013. OPFOF ¶ 20. The officers served Ms. Bishop with the warrant at the front door of her residence and asked if there were any other occupants in the house. Ms. Bishop responded that her son, Eric, was sleeping in the house, and then closed and locked the front door and retreated into the house. Ms. Bishop maintains that she locked the door while she went to wake her son for her dogs' safety. After she locked the door, the officers began yelling instructions through the door. They directed her to open the door and to go get her son. She claims that she became confused by the officers' “contradictory” directives and stood at the door while they continued to yell. Pls.' Resp. to OPFOF ¶ 22, ECF No. 143. The officers believed that she was refusing to allow them into the house, as authorized by the search warrant, and breached the door to gain entry. OPFOF ¶ 24.

         Once inside, Bosquez used a control technique to prevent Ms. Bishop from fleeing by grasping Ms. Bishop's left wrist with his left hand and holding Ms. Bishop's left tricep with his right. Karski then grasped Ms. Bishop's right arm, and the two officers escorted Ms. Bishop to the living room. The officers also escorted Eric to the living room and allowed Ms. Bishop to call her son, Kevin Bishop. The officers stationed outside the residence were informed that Mr. Bishop was en route to the property.

         Waupaca County Sheriff's Office Sergeant Gene Goode, who is not named as a defendant in this matter, was one of the officers assigned to guard the perimeter of the property, to keep unauthorized individuals away from the property, and to safeguard the sheriff's office and veterinary staff during the search. His unmarked squad car was positioned approximately two car lengths into the Bishop driveway from Highway 45, on the grass adjacent to the gravel roadway. At approximately 8:45 a.m., Sergeant Goode and Sergeant Mocadlo observed Mr. Bishop's vehicle approaching the driveway. The vehicle's turn signal indicated that Mr. Bishop intended to turn into the driveway where Goode and Mocadlo were standing shoulder-to-shoulder in the graveled portion of the roadway. Goode signaled for Mr. Bishop to stop the vehicle at the end of the driveway, but he did not stop. Instead, he drove off the graveled portion of the driveway to go around the officers, nearly striking them, and proceeded toward the residence. Based on Mr. Bishop's actions, Goode and Mocaldo concluded he intended to disrupt the search or harm those present for the execution of the search warrant. They ran after the vehicle, ordering it to stop.

         Mr. Bishop eventually stopped, and Mocaldo opened the door and ordered him to exit. Mr. Bishop locked his hands on the steering wheel and refused to exit the vehicle, even though the officers made repeated requests for him to do so. Mocadlo took Mr. Bishop's hands off the steering wheel and escorted him out of the vehicle. Mr. Bishop actively resisted Mocadlo's attempt to remove him. Mocadlo advised Mr. Bishop that he was being arrested and ordered him to place his hands behind his back. Mr. Bishop refused to comply with this order and became combative. Mocadlo and Bazile lowered him to the ground while he continued to resist and struggled to escape. Goode removed his taser from his duty belt and alerted Mr. Bishop and the officers that a taser was ready to be deployed. Mr. Bishop then became compliant, and the officers applied handcuffs and advised him that he was being placed under arrest for obstructing an officer.

         Mr. Bishop disputes the officers' version of events. He maintains that he did not see any officers or a vehicle blocking part of the driveway when he arrived at his mother's residence. He contends that he simply pulled into the driveway and parked on the grass near the house, due to the amount of vehicles in the driveway. Pls.' Resp. to OPFOF ¶¶ 34, 38. Mr. Bishop asserts that he was never instructed to exit his vehicle and was otherwise complaint with the officers' orders. He claims Mocadlo yanked his door open before he had a chance to turn his vehicle off or unbuckle his seatbelt, then threw him to the ground. Id. ¶ 45. He asserts that the officers knew he was in pain because he was limping around in circles after he had been thrown to the ground, id. ¶ 54, though the officers maintain that he was never free to move around in front of the law enforcement officers after he was arrested and placed into a squad car. OPFOF ¶ 54. Kevin was later found guilty of disorderly conduct for his actions in Waupaca County Case No. 13-CM-366.

         During Mr. Bishop's arrest, Ms. Bishop became visibly upset and began pacing in her living room. Id. ¶ 56. Studzinski ordered her to sit on the couch. Ms. Bishop refused to remain seated, and Studzinski placed his hand on her shoulder several times to direct her back to the couch. The individuals in the residence heard a commotion outside and Ms. Bishop began using abusive language toward the officers and punched Studzinski in the chest. Studzinski then secured Ms. Bishop's arms, turned her face to the couch, and applied handcuffs, while she actively resisted. Wilz helped stabilize Ms. Bishop while Studzinski applied the handcuffs. At some point during this process, Ms. Bishop's pants became unbuttoned and fell down. Studzinski assisted Ms. Bishop in hoisting her pants, placed her in a seated position on the couch, and obtained a blanket for her to place over her lap. Wilz and Studsinzki then escorted Ms. Bishop to the squad car. She actively resisted their efforts to guide her to the car, and her pants fell down. After placing Ms. Bishop in the squad car, Wilz returned to the residence to observe Eric Bishop. A female law enforcement officer arrived at the scene to transport Ms. Bishop to the Waupaca County Jail.

         Ms. Bishop disputes the officers' account. She claims she was not upset, did not pace around her living room, did not use verbally abusive language, and did not punch Studzinski in the chest. Although she maintains she sat on the couch like she was ordered to, she does not dispute that she stood up to watch the officers arrest Mr. Bishop. She claims that Wilz and Studzinski then held her upside down to handcuff her, officers pulled her pants and underwear down, and Wilz touched her “private area, ” leaving scrapes and bruises. Pls.' Resp. to OPFOF ¶¶ 69, 71, 73. Once she was handcuffed, the officers forced her to ...


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