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The Dragonwood Conservancy, Inc. v. Felician

United States District Court, E.D. Wisconsin

June 14, 2019

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

          DECISION AND ORDER ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON CERTAIN COMPENSATORY DAMAGES

          DAVID E. JONES, UNITED STATES MAGISTRATE JUDGE

         In May 2010, officers from the Milwaukee Police Department seized hundreds of animals 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. Mr. Cullen attempted to contest the seizure, but the Milwaukee County Circuit Court denied his motion seeking the return of the animals and authorized that the animals be disposed of by the animal welfare agency that was holding them. Mr. Cullen never saw the animals again.

         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 plaintiffs' unreasonable-seizure claim survived summary judgment; however, their due-process claims have been dismissed.

         Before proceeding to trial on the remaining claims, the defendants seek summary judgment on the plaintiffs' claim for damages relating to the value of the seized animals. According to the defendants, that claim must be dismissed for lack of subject-matter jurisdiction and because it is not the proper remedy for the alleged constitutional violation. The Court respectfully disagrees. Because Mr. Cullen did not have a reasonable opportunity to contest the seizure of the animals during the state-court proceedings, his unreasonable-seizure damages claim is not barred by the Rooker-Feldman doctrine. Moreover, those damages are tailored to the alleged injury the plaintiffs' suffered. The Court will therefore deny the defendants' motion for summary judgment on certain compensatory damages.

         I. Background

         In May 2010, MPD executed several search warrants at Mr. Cullen's properties and seized over 200 of his animals, including a few dead animal carcasses. See Plaintiffs' Additional Proposed Findings of Fact ¶¶ 29a-c, ECF No. 48; Exhibit 5 to Affidavit of Attorney Mark Murphy, ECF No. 46-5; Attachment L to Affidavit of Jan A. Smokowicz, ECF No. 31-12. On May 13, 2010, the Milwaukee Area Domestic Animal Control Commission (MADACC) informed Mr. Cullen that the agency was holding his animals “for cause” on behalf of MPD. See Attachment J to Smokowicz Aff., ECF No. 31-10 at 13-14.

         Mr. Cullen was subsequently charged in Milwaukee County Circuit Court with several crimes relating to the animals seized from his properties. See Defendants' Proposed Findings of Fact ¶ 36, ECF No. 30. The State assured Mr. Cullen that the animals would not be relocated without notice and an opportunity to be heard. Smokowicz Aff. Attach. J, at 18. A few days later, however, the State filed a petition with the Circuit Court seeking approval to relocate all animals except for the carcasses and two endangered turtles, which were being held as evidence. See Smokowicz Aff. Attach. J, at 15. The Circuit Court did not address the petition. Nevertheless, a No. of animals were relocated. See Exhibit 1 to Plaintiffs' Brief Opposing Defendants' Motion for Partial Summary Judgment, ECF No. 67-1.

         On July 13, 2010, Mr. Cullen moved the Circuit Court to return the seized animals, appoint a receiver to care for the animals while the criminal case was pending, and restrain any movement of the animals until further order of the court. See Attachment H to Smokowicz Aff., ECF No. 31-8. Following a hearing, see Exhibit 9 to Murphy Aff., ECF No. 46-9, 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, see Attachment I to Smokowicz Aff., ECF No. 31-9. 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, [1] 173.22.”[2] 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. The court denied Mr. Cullen's request to stay its ruling pending an appeal. See Murphy Aff. Ex. 9, at 60:2-20. Most of the remaining animals were relocated following the Circuit Court's ruling. See Pls.' Br. Ex. 1.

         On September 15, 2010, Mr. Cullen moved for reconsideration, arguing that the Circuit Court had misapplied state law. See Smokowicz Aff. Attach. J. Mr. Cullen asked the court to vacate its decision that he lost his claim to his animals and to allow him to file a petition in civil court seeking the return of his animals. Id. at 8. The Circuit Court held two non-evidentiary hearings on the reconsideration motion. See Exhibit 10 to Murphy Aff., ECF No. 46-10; Exhibit 11 to Murphy Aff., ECF No. 46-11. By that time, only twenty-four animals remained in MADACC's custody. See Murphy Aff. Ex. 10, at 17:20-18:9. 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), ”[3] that “[t]he animals were and are held by . . . MADACC . . . under Wis.Stat. §173.21(1)(a), ” and that “under Wis.Stat. §173.22(3)(1)[4] there are reasonable grounds to believe the owner has mistreated the animals in violation of Wis.Stat. ch. §951.” Id. The court therefore ordered, pursuant to Wis.Stat. § 173.23, [5] that “the animals may be sold, destroyed or disposed of as determined by MADACC.” Id. The court issued its order “nunc pro tunc, ” meaning it was effective as of the date of its previous order. Id. The court also declined Mr. Cullen's requests for a temporary restraining order and to stay the order pending an appeal. Id.

         On May 3, 2016, 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. 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 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)).

         The defendants moved for summary judgment on the plaintiffs' claims. On January 24, 2019, the Court issued a written decision granting the motion in part and denying it in part. See Decision and Order on Defendants' Motion for Summary Judgment, ECF No. 62. The Court determined that the defendants were entitled to summary judgment on the plaintiffs' probable-cause claim, due-process claims, and municipal-liability claim. However, the plaintiffs' unreasonable-seizure claims and property-damage claim survived summary judgment.

         On March 22, 2019, the defendants filed a motion for partial summary judgment as to damages with respect to the value of the plaintiffs' animal inventory. See Defendants' Motion for Partial Summary Judgment on Certain Compensatory Damages, ECF No. 65. That motion is now fully briefed and ready for disposition. See Defendants' Brief in Support, ECF No. 66; Plaintiffs' Brief Opposing Defendants' Motion for Partial Summary Judgment, ECF No. 67; Defendants' Reply Brief, ECF No. 68.

         II. 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 proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Still,

a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which ...

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