Davis v. City of Milwaukee
| Decision Date | 21 August 2015 |
| Docket Number | Case No. 13-CV-982-JPS |
| Parties | BRIAN E. DAVIS, Plaintiff, v. CITY OF MILWAUKEE, ART DAHLBERG and STEPHEN CHALSTROM, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Before the Court are the parties' cross-motions for summary judgment (Docket #51, #58) and post-interlocutory appeal supplementary briefs addressing qualified immunity (Docket #116, #119). The Court will grant the defendants' motion for summary judgment in all material respects and deny the plaintiff's motion for summary judgment, for the reasons outlined below.
The plaintiff, Brian E. Davis ("Davis"), filed a pro se complaint on August 29, 2013, alleging various causes of action related to municipal citations he received from the City of Milwaukee ("the City") concerning properties that he owned. (See Docket #1). Finding the plaintiff's complaint deficient in certain respects, the Court ordered him to file a second amended complaint curing those deficiencies. (See Docket #35). The plaintiff did so on December 23, 2013. (Docket #36). On February 14, 2014, the Court issued an order that, inter alia, directed the Clerk of Court to docket the plaintiff's second amended complaint (thus making it the operative complaint in this matter), and dismissed for lack of standing "the portions of [Davis's] claims predicated upon the property located at 4741 N. 69th Street, Milwaukee, Wisconsin." (Docket #43).
The plaintiff's remaining claims are a mix of state and federal law causes of action. As to the federal claims, the plaintiff alleges that: (1) agents of the City have "invaded [his] private residential properties at least ten times without his permission and without a warrant of any kind," in violation of the Fourth Amendment (Docket #44 at ¶¶ 35, 37); (2) various actions of the defendants—namely, the alleged searches of his residence and the resulting citations and municipal court cases—"demonstrate a pattern of personal animus against [him] and support a class of one discrimination claim against the defendants," under the Equal Protection Clause of the Fourteenth Amendment, id. at ¶ 44; (3) the defendants, "absent legal process or even judicial review," added $650.00 to the plaintiff's 2012 property tax bill (and later collected that amount), which was a taking in violation of the Fifth Amendment, id. at ¶¶ 48-51, 65; and, (4) the defendants have "abused the prosecutorial machinery of the municipal court to punish, harass[,] and retaliate against [him for exercising] his constitutional and statutory rights to be free from warrantless searches," and this allegedly malicious and retaliatory prosecution violates the Fourth and Fourteenth Amendments, id. at ¶¶ 43-47, 52-55.1
The plaintiff alleges an amalgam of state law claims that are both interrelated to his federal claims, and independent of them. First, the plaintiff alleges that the warrantless searches of his property violated: (1) Wisconsin's constitutional analog to the Fourth Amendment, see Wis. Cons. art. I, § 11 (Docket #44 at ¶ 37, 67); (2) a variety of Wisconsin statutes—Wis. Stat.§§ 66.0119(2), 844.01(2), 995.50(2)(a), and 943.13(1m)(b) (Docket #44 at ¶¶ 38-41); and, (3) Milwaukee City Ordinance No. 200-11(2)(a), (b) (Docket #44 at ¶ 42). Second, the plaintiff alleges that the City has violated the defendant's rights by violating a 2002 decision of the Wisconsin Appeals Court which found in his favor regarding residential code enforcement. Id. at ¶ 69. Third, the plaintiff requests an award of damages under Wis. Stat. § 895.043 () for the defendants "repeated, deliberate and flagrant violations of [P]laintiff's statutory and constitutional rights under Wisconsin law." Id. at 15.
The parties filed cross-motions for summary judgment in March of 2014. (See Docket #51, #58). After full briefing on the matter, the Court denied both parties' motions, noting that "the record in this case is not sufficiently well-developed with regard to the four factors to be considered in determining whether an area constitutes the curtilage of a home." (Docket #79) (citing United States v. French, 291 F.3d 945, 951-52 (7th Cir. 2002); United States v. Dunn, 480 U.S. 294, 302-03 (1987)). Defendant Stephen A. Chalstrom ("Chalstrom") filed a notice of appeal that same day; Chalstrom appealed the "portion of [the Court's] order...denying him summary judgment on the ground of qualified immunity." (Docket #80).
On December 23, 2014, the Seventh Circuit dismissed Chalstrom's appeal for lack of jurisdiction, finding that this Court had not expressly ruled on the defense of qualified immunity because it had identified a fact dispute. See Davis v. Chalstrom, 595 Fed. Appx. 627, 629-30 (7th Cir. 2014). The Seventh Circuit suggested that "[o]ne approach the court may wish to consider, as it would obviate the need for trial on the issue of curtilage, is to assume that Chalstrom walked on the curtilage of Davis's property." Id. at 630. If this Court were to do so, the only thing remaining would be Id.
After the Court received the Seventh Circuit's mandate (see Docket #103), the Court held a status conference with the parties on February 26, 2015. (Docket #105, #110). During the conference, the Court heard arguments from the parties on how best to proceed. Id. After hearing the parties' arguments, the Court gave the plaintiff thirty (30) days to obtain a lawyer and instructed the defendants to file a short memo about Chalstrom's conduct—i.e., where he went on the plaintiff's property—if the plaintiff failed to obtain a lawyer. Id. The Court also stated that it would not permit the plaintiff to amend his complaint this late in the proceedings and would not rule on his outstanding motions until he obtained counsel. Id. On March 18, 2015, the plaintiff filed a letter with the Court indicating that he had obtained counsel; however, counsel would only assist the plaintiff if the matter went to trial. (Docket #111).
On April 16, 2015, the Court stated that it would "proceed in a manner similar to that suggested by the Seventh Circuit" and resolve the outstanding qualified immunity issue by "assum[ing] that the defendants walked on the curtilage of Davis's property and analyz[ing] whether the defendants are entitled to qualified immunity in light of that assumption." (Docket #112 at 4). To that end, the Court ordered each party to file a ten-page supplemental brief on qualified immunity; the parties were also encouraged to "meet and confer about the facts pertinent to this issue—i.e., where exactly did Chalstrom go on the property—so that the parties may identify those facts that are in dispute and those that are not." Id.
Consistent with the Court's order, the parties filed supplemental briefs (see Docket #116, #119) addressing qualified immunity. The defendants alsosubmitted supplemental proposed findings of fact (Docket #120), and a supplemental affidavit from Chalstrom (Docket #121). The plaintiff thereafter moved to suppress the defendants' supplemental facts and affidavit. (See Docket #124).
Having laid out the procedural history, the Court now turns to its discussion of the parties' cross-motions for summary judgment. The Court will begin by setting out the underlying facts, turn next to the applicable legal standard for summary judgment and qualified immunity, and conclude by analyzing each of the parties' arguments for or against summary judgment on each of the plaintiff's claims.
The plaintiff owned multiple rental properties in the City of Milwaukee. Two of those properties—rental houses— are the subject of the instant matter; one house is located at 5265 North 58th Street (hereinafter "58th Street"), and the other is located at 3616 North 61st Street (hereinafter "61st Street"). The plaintiff's Fourth Amendment claims arise from the warrantless inspection of those properties by the City of Milwaukee Department of Neighborhood Services (hereinafter "DNS").
Before discussing the facts offered by the parties as to each property, however, the Court will briefly discuss DNS's building inspection scheme writ large.
The Department of Neighborhood Services is charged with, inter alia, enforcing various City of Milwaukee Ordinances that govern residential and commercial properties within the city. As relevant here, one such ordinance—the Milwaukee Vacant Building Registration Program ordinance—dictates what a property owner must do if his or her property has been left vacant for 30 days or more. See Milwaukee City Ordinance No. 200-51.7. Namely, the property owner must register the building with DNS, and provide the City access to the property so it can inspect the condition of the exterior and interior of the premises. Id. Should a property owner fail to comply with the above-mentioned requirements, the owner faces monetary penalties as well as municipal court prosecution. Milwaukee City Ordinance No. 200-51.10. In addition to those penalties, the ordinance also states that non-compliance may result in the department petitioning a court for a special inspection warrant to enter the owner's property. Milwaukee City Ordinance 200-51.10.5.
Notwithstanding the foregoing, the general approach that DNS took with respect to inspections of rental properties (vacant or otherwise) was not to seek a warrant or "owner permission to conduct an inspection of the exterior of rental premises." (Docket #53 at 5). Instead, DNS's de facto policy was to operate on a "sort of cable guy rule" whereby "if the cable guy [could] go there or if the city services such as sanitation or some other services could go there, there's no expectation of privacy to prohibit an inspector to go there." Id. Consistent with that de facto policy, then, DNS inspectors would not go through a locked gate, around a fence, or walk past a "No Trespassing" sign...
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