United States District Court, E.D. Wisconsin
THE DRAGONWOOD CONSERVANCY, INC., formerly known as The Cullen Vivarium Wildlife Conservancy,
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
E. JONES, UNITED STATES MAGISTRATE JUDGE
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.
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
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.
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.
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.
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,  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. 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.
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), ” 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) 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,
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
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
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.
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.
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
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,