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Dragonwood Conservancy Inc. v. Felician

United States District Court, E.D. Wisconsin

January 24, 2019

THE DRAGONWOOD CONSERVANCY, INC., formerly known as The Cullen Vivarium Wildlife Conservancy, PLEGUAR CORPORATION, and TERRY CULLEN, Plaintiffs,
v.
PAUL FELICIAN, PHIL SIMMERT II, JANE AND JOHN DOES, CITY OF MILWAUKEE, and ABC INSURANCE COMPANY, Defendants.

          DECISION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          DAVID E. JONES UNITED STATES MAGISTRATE JUDGE

         In May 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

         The 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.

         I. Factual Background

         Terry 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 ¶ 1c.

         In 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 ¶ 3.

         A. Investigation and execution of search warrants

         In May 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 ¶¶ 15-18.[1]

         Detective 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 ¶ 20b.

         On May 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.

         Detective 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.[2] See Pls.' Facts ¶ 23a (citing Exhibit 4 to Murphy Aff., ECF No. 46-4).[3] The warrant described the objects of the search as:

• 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 this list.

See Murphy Aff., Ex. 4 at 2-3.

         The 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

         Law 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 ¶ 23e.[4] 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.[5]

         Law 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 ¶¶ 27a-27b.

         Back at 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.

         In 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.

         B. Post-execution aftermath

         Law 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.

         Robert 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 ¶¶ 29f, 29h.

         Mr. 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, [6] 173.22.”[7] 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.

         A few 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), ”[8] 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.” Id.

         In 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.

         II. Procedural Background

         On May 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)).

         On 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.

         III. Summary Judgment Standard

         “The 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.

         A 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 ...


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