United States District Court, E.D. Wisconsin
BECKY L. BISHOP and KEVIN E. BISHOP, Plaintiffs,
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
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.
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.
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
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.
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.
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 ¶
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.
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.
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.
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.
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.
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 ...