United States District Court, E.D. Wisconsin
THE DRAGONWOOD CONSERVANCY, INC., formerly known as The Cullen Vivarium Wildlife Conservancy, PLEGUAR CORPORATION, and TERRY CULLEN, Plaintiffs,
PAUL FELICIAN, PHIL SIMMERT II, JANE AND JOHN DOES, CITY OF MILWAUKEE, and ABC INSURANCE COMPANY, Defendants.
DECISION AND ORDER ON DEFENDANTS' MOTION FOR
E. JONES UNITED STATES MAGISTRATE JUDGE
2010, officers from the Milwaukee Police Department seized
over 200 animals and other personal property that belonged to
Terry Cullen, his conservancy, and his employee-tenant, after
having searched four properties owned or maintained by Mr.
Cullen for evidence relating to the unlawful transportation
or possession of endangered and threatened species. About six
years later, Mr. Cullen, his conservancy, and the owner of
one of the properties sued two of the executing officers,
unnamed officers or agents, the City of Milwaukee, and the
City's insurance provider under 42 U.S.C. § 1983,
alleging violations of their Fourth Amendment right to be
free from unreasonable searches and seizures and their Fifth
and Fourteenth Amendment rights to due process
defendants have moved for summary judgment on all of the
plaintiffs' claims. Because no reasonable jury could
return a verdict in favor of the plaintiffs on their
probable-cause claim, due-process claims, and
municipal-liability claim, the defendants are entitled to
summary judgment on those claims. However, a reasonable jury
could find that the defendants unreasonably seized and
damaged the plaintiffs' property, and the officers'
actions are not shielded by qualified immunity. The
defendants therefore are not entitled to summary judgment on
the plaintiffs' remaining Fourth Amendment claims.
Cullen is a world-class herpetological researcher who works
and coordinates with zoos, governments, federal wildlife
agencies, humane organizations, and international
conservation groups to rehabilitate, breed, and conserve
herpetological species, including crocodilians, snakes,
lizards, and turtles. Plaintiffs' Additional Proposed
Findings of Fact ¶ 1a, ECF No. 48. As one function of
his many specialties, Mr. Cullen undertakes rescue or
conservation operations for reptiles and amphibians whereby
he accepts critically ill, abused, diseased, or injured
animals and nurses them back to good health. Pls.' Facts
2010, Mr. Cullen resided and owned property within
Milwaukee's south side: 3443 South 17th Street, 3401
South 16th Street, and 3448 South Kinnickinnic Avenue.
Defendants' Proposed Findings of Fact ¶ 1, ECF No.
30. He ran a conservation operation out of the 17th Street
property and had another one at a property (2319-2323 South
13th Street) owned by Pleguar Corporation. Pls.' Facts
¶ 1c; Defs.' Facts ¶ 2. Mr. Cullen's friend
and employee, Jane Flint, resided at the 13th Street
property. See Pls.' Facts ¶ 30a. Mr. Cullen
also was the principal director of The Dragonwood
Conservancy, Inc., a Florida not-for-profit corporation
formerly known as The Cullen Vivarium Wildlife Conservancy.
Amended Complaint ¶ 304, ECF No. 13; Defs.' Facts
Investigation and execution of search warrants
2010, Lieutenant Paul Felician of the Milwaukee Police
Department received information that led him to believe that
Mr. Cullen was unlawfully harboring animals in the City of
Milwaukee. Exhibit 1 to Affidavit of Attorney Mark Murphy,
ECF No. 46-1; see also Defs.' Facts ¶¶
9-18. The source of the information, Jennifer R., told MPD
Detective Phillip Simmert II that on February 27, 2010, Mr.
Cullen took her to his residence (i.e., the 17th Street
property) for a trail internship assignment, where she
observed five, twenty-foot-long anacondas in a trough in the
basement, as well as what she believed to be Chinese
alligators in small enclosures and boxes containing spiders
and turtles. Defs.' Facts ¶ 12. According to the
intern, Mr. Cullen also took her to the 13th Street property,
where she saw an alligator freely roaming the residence.
Defs.' Facts ¶ 13. The intern claimed that Mr.
Cullen repeatedly told her that he could not legally possess
the creature. Id. The intern showed Detective
Simmert pictures she had taken of several reptiles,
which-based on Detective Simmert's computer search-had
characteristics similar to Chinese alligators. Defs.'
Facts ¶ 12. Given this information, Detective Simmert
believed that the anacondas and alligators were being kept in
violation of city ordinances regulating non-domesticated and
dangerous animals. Defs.' Facts ¶¶
Simmert contacted a conservation warden with the Wisconsin
Department of Natural Resources about the animals. The
conservation warden indicated that Chinese alligators were
critically endangered and that Mr. Cullen did not have a
permit to breed or house such creatures. Defs.' Facts
¶ 20. According to the conservation warden, Mr. Cullen
did have a “breeders permit” in Florida, but it
did not apply to Chinese alligators. Pls.' Facts ¶
6, 2010, Detective Simmert spoke on the phone with Mr.
Cullen, who acknowledged owning The Dragonwood Conservancy.
Pls.' Facts ¶ 19a. They spoke again a few days
later, and Mr. Cullen claimed to not keep snakes, alligators,
or crocodiles within the city. Defs.' Facts ¶ 19.
Mr. Cullen further claimed that he had a federal wildlife
breeding program in Florida where he maintained his
conservancy. Pls.' Facts ¶ 19b. Mr. Cullen told
Detective Simmert that he was not required to be licensed to
care for the creatures because he was covered by the license
belonging to the Wisconsin Humane Society. Id.
Simmert subsequently applied for and obtained a warrant to
search the 13th Street and the 17th Street properties for
evidence related to the violation of Wis.Stat. § 29.604,
which, among other things, criminalizes certain conduct
related to endangered and threatened species. See
Pls.' Facts ¶ 23a (citing Exhibit 4 to Murphy Aff.,
ECF No. 46-4). The warrant described the objects of the
• Reptiles including but not exclusive of Chinese
Alligators or Chinese Crocodiles.
• Python or Anaconda snakes.
• Spiders and turtles.
• Items commonly associated with the breeding,
transport, and care of the above listed animals. This would
include items like heat lamps, cages, and warming rocks.
• Other endangered or threatened species not included on
See Murphy Aff., Ex. 4 at 2-3.
warrant was executed on May 12, 2010. See Murphy
Aff., Ex. 1 at 4-5. Lieutenant Felician, Detective Simmert,
the DNR conservation warden, a member of the Milwaukee Area
Domestic Animal Control Commission (MADACC), and officers
from MPD's Tactical Enforcement Unit were present at the
time of execution. Id. Mr. Cullen and Ms. Flint were
denied access to their properties during the execution of the
warrant. Pls.' Facts ¶ 23f
enforcement entered the 13th Street property first but, due
to the condition of the property, they secured the residence
to return the following morning with the proper equipment and
personnel. See id.; see also Pls.' Facts ¶
Before leaving, the conservation warden did positively
identify an ornate box turtle in the kitchen that was an
endangered species and illegal to possess without special
permits. Defs.' Facts ¶ 24. Also, law enforcement
shot and killed two of Ms. Flint's pet dogs. Pls.'
Facts ¶ 23c.
enforcement then proceeded to the 17th Street property.
Inside that residence, officers located and seized a lizard,
alligators, scorpions, turtles, spiders, snakes, and a
chicken. See Murphy Aff, Ex. 1 at 5-6; see
also Attachment L to Affidavit of Jan A. Smokowicz, ECF
No. 31-12. The fire department assisted in the search and cut
a hole in the basement wall to allow the passage of the
troughs containing the anacondas. Murphy Aff, Ex. 1 at 5;
see also Defs.' Facts ¶ 27; Pls.' Facts
the 13th Street property, law enforcement recovered a number
of other animals. See Pls.' Facts ¶ 29a.
They tore out a large glass window and cut a hole in the
garage door to extract some of the animals and their cages.
See Pls.' Facts ¶¶ 30b-30c; see
also Defs.' Facts ¶ 27.
total, more than 200 animals were seized. See
Smokowicz Aff., Attach. L; see also Pls.' Facts
¶¶ 29a-29c. Law enforcement also took cash, guns,
jewelry, tools, computers, permits, documents, and other
business paperwork. Pls.' Facts ¶¶ 23s, 29a.
According to Mr. Cullen, law enforcement seized other animals
that were not inventoried of returned. Pls.' Facts ¶
29b. Following execution of the warrants, law enforcement
took photographs of the interior and exterior of the 13th
Street, 17th Street, and Kinnickinnic Avenue properties.
Defs.' Facts ¶ 32 (citing Attachment M to Smokowicz
Aff, ECF No. 31-13). The photographs show that properties
were cluttered with many items. See Smokowicz Aff,
Attach. M; see also Defs.' Facts ¶ 30.
enforcement continued to maintain control of the properties
for weeks after the warrants were executed. Pls.' Facts
¶ 23g. Mr. Cullen claims that law enforcement
inadequately secured his properties during this time-allowing
gaps in the green particle board used to board up the
properties and leaving a window and door completely open-and,
as a result, they became infested with vermin. Pls.'
Facts ¶¶ 27c-27f The properties also suffered
extensive damage. See Pls.' Facts ¶¶
23h-23k; see also Exhibit 3 to Murphy Aff, ECF No.
46-3 at 3; Exhibit 7 to Murphy Aff., ECF No. 46-7. Indeed,
the City attempted to condemn the 13th Street property.
Pls.' Facts ¶ 23l.
Henderson, the Curator of Reptiles at the Milwaukee Public
Museum, was present during the execution of the search
warrants. In his opinion, the snakes recovered from the
residences were being kept in neglectful conditions.
Nevertheless, nearly all of them were in good health.
See Exhibit 2 to Murphy Aff., ECF No. 46-2 at 2-3.
The same was true for the alligators. See Id.
According to Mr. Cullen, however, the care of the animals
deteriorated while in MADACC's custody. See
Pls.' Facts ¶¶ 29e, 29g. Mr. Cullen offered to
have third parties care for the animals in the meantime, but
he was rejected. See Pls.' Facts ¶¶
Cullen was subsequently charged in Milwaukee County Circuit
Court with several crimes relating to the animals seized from
his properties. On July 13, 2010, Mr. Cullen moved to have
the Circuit Court order the return of the animals seized from
the 13th Street property. Defs.' Facts ¶ 36 (citing
Attachment H to Smokowicz Aff., ECF No. 31-8). Following a
hearing, the Circuit Court denied the motion, finding that it
was not properly before the court because it should have been
filed in civil court, not in Mr. Cullen's criminal
proceedings. The court further determined that Mr. Cullen had
“waived his right to request return of said animals by
failing to petition the circuit court for return of the
seized animals within seven days of confiscation as
required by statute. See Wis. Stats. § 173.19,
173.22.” Id. Finally, the court held that,
because no petition had been timely filed, “said
animals are deemed, by operation of statute, to be
‘unclaimed,' and therefore . . . MADACC .
. . has lawful authority over said animals and may dispose of
and/or distribute said animals as it see[s] fit, consistent
with law.” Id.
weeks later, Mr. Cullen moved for reconsideration, arguing
that the Circuit Court had misapplied the law in denying his
motion to return the animals. See Attachment J to
Smokowicz Aff., ECF No. 31-10. The Circuit Court vacated its
previous decision but still denied Mr. Cullen's motion.
See Attachment K to Smokowicz Aff., ECF No. 31-11.
The court determined that “[t]he animals were seized
under Wis.Stat. §173.13(1), ” that “[t]he
animals were and are held by . . . MADACC . . . under
Wis.Stat. §173.21(1)(a), ” and that “there
are reasonable grounds to believe the owner has mistreated
the animals in violation of Wis.Stat. ch. §951.”
January 2016, Mr. Cullen and Ms. Flint received notice that
MPD was holding their firearms and that they would have to
petition to have the firearms returned. Pls.' Facts
¶ 23o (citing Exhibit 8 to Murphy Aff., ECF No. 46-8).
Three months later, their attorney filed petitions for return
of property in Milwaukee County Circuit Court. Id.
The Circuit Court granted the petitions, and several firearms
were given back to Mr. Cullen and Ms. Flint. Pls.' Facts
¶ 23q. Mr. Cullen, however, claims that additional
firearms were seized but have not been returned. Pls.'
Facts ¶ 23r. Mr. Cullen further claims that many items
of his personal property have not been returned either.
Pls.' Facts ¶ 23s.
3, 2016, the plaintiffs filed this action under 42 U.S.C.
§ 1983 against Lieutenant Felician, Detective Simmert,
Jane and John Does, the City of Milwaukee, and ABC Insurance
Company. See Complaint, ECF No. 1. An Amended
Complaint, ECF No. 13, was filed on December 5, 2016. The
plaintiffs claim that the defendants violated their rights
under the Fourth, Fifth, and Fourteenth Amendments to the
United States Constitution when they searched the
plaintiffs' properties and seized all of the
plaintiffs' animals, as well as other items. The matter
was reassigned to this Court in March 2017 after all parties
consented to magistrate judge jurisdiction. See
Order, ECF No. 17; see also Consent to Proceed
Before a Magistrate Judge, ECF Nos. 15, 16 (citing 28 U.S.C.
§ 636(c) and Fed.R.Civ.P. 73(b)).
September 11, 2017, the defendants filed a motion for summary
judgment on all of the plaintiffs' claims. See
Defendants' Motion for Summary Judgment, ECF No. 27;
see also Defendants' Brief in Support, ECF No.
28. That Motion is now fully briefed and ready for
disposition. See Plaintiffs' Brief Opposing
Summary Judgment, ECF No. 42; Defendants' Reply Brief,
ECF No. 53; Plaintiffs' Brief in Sur-Rebuttal Opposing
Defendant's Motion for Summary Judgment, ECF No. 59.
Summary Judgment Standard
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “Material facts” are those
that, under the applicable substantive law, “might
affect the outcome of the suit.” See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
over a material fact is “genuine” “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
moving party “is ‘entitled to a judgment as a
matter of law'” when “the nonmoving party has
failed to make a sufficient showing on an essential element
of [its] case with respect to which [it] has the burden of