Felski v. Bretl
| Decision Date | 27 September 2018 |
| Docket Number | Case No. 16-CV-1062 |
| Parties | THOMAS G. FELSKI, Plaintiff, v. DAVID A. BRETL, CINDY WROBEL, KRISTEN PERRY, CHIEF JIM SURGES, and SGT. PAUL SCHMIDT, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Plaintiff Thomas Felski is a Wisconsin state prisoner representing himself. He filed this case alleging that forty-one defendants violated his rights related to a criminal investigation and criminal charges that were filed against him stemming from a home construction contract. The court screened the original complaint, determined that Felski's allegations against five of the forty-one defendants implicated his rights under the Fourth Amendment, dismissed the remaining claims and defendants, and ordered Felski to file an amended complaint clarifying his claims against the five remaining defendants. (ECF No. 9 at 24.)
After Felski filed an amended complaint, the court screened it and allowed him to proceed on the following claims under the Fourth Amendment: (1) a claim against defendant East Troy Police Department Sergeant Paul Schmidt for allegedly illegally entering Felski's residence and seizing his personal items, as well as a claim against defendant East Troy Police Department Chief Jim Surges for authorizing the alleged illegal entry; (2) claims against defendant Cindy Wrobel, a humane officer at Lakeland Animal Welfare Society, Inc. (Lakeland), for allegedly seizing Felski's dogs and charging him $4,000 for their return, and against defendants Wrobel and Kristen Perry, a supervisor at Lakeland, for neutering Felski's puppy; and (3) a claim against defendant Walworth County Corporation Counsel David Bretl for failing to prevent Wrobel's and Perry's actions. All defendants have moved for summary judgment. (ECF Nos. 72, 79, 87.) In addition to responding to the summary judgment motions (ECF No. 127), Felski filed several motions to strike. (ECF Nos. 139, 141, 143, 143.)
The court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because the matter arises under federal statutes. Venue is proper under 28 U.S.C. § 1391. The parties have consented to United States magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and General Local Rule 73 (E.D. Wis.).
"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 amatter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011). "Material facts" are those under the applicable substantive law that "might affect the outcome of the suit." See Anderson, 477 U.S. at 248. 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 party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4).
In his amended complaint Felski alleges that "Defendant, Paul Schmidt of the East Troy Police Department did illegally enter my private residence and seized two personal computers, business records, checks, and original contracts without a searchwarrant in violation of the 4th Amendment to the United States Constitution." (ECF No. 12, ¶ 10.) He further alleges that "Defendant, Jim Surges authorized the illegal entry by his subordinate, Paul Schmidt, which is [in] violation of the 4th Amendment to the United States Constitution." (ECF No. 12, ¶ 14.) In moving for summary judgment, Chief Surges and Sgt. Schmidt deny that any member of the East Troy Police Department, including Sgt. Schmidt, entered Felski's home or removed any items from it.
The following facts are taken from Surges's and Schmidt's Proposed Findings of Fact (ECF No. 74) and from Felski's deposition (ECF Nos. 75-1, 75-2). Felski did not respond to Surges's and Schmidt's facts, as required by the Local Rules. See Civil L.R. 56(b)(2)(B) (E.D. Wis.).1 Thus, the court may consider the defendants' facts undisputed. See Civil L.R. 56(b)(4) (E.D. Wis.). Felski filed a joint response to all three motions for summary judgment. (ECF No. 127.) The response is titled, "Plaintiff's Response to Defendants Proposed Findings of Fact," "Memorandum of Law," and "Plaintiff'sResponse to Motion for Summary Judgment from David Bretl, James Surges, Paul Schmidt, Kristen Perry, Cindy Wrobel by their Attorneys." Because Felski's response is sworn, the court will consider any properly supported, relevant, material facts from his response in resolution of the summary judgment motions. See 28 U.S.C. § 1746.
In 2011 Felski resided at N9144 Ash Street in the town of East Troy, Wisconsin (the "Ash Street Property"). (ECF No. 74, ¶ 4.) He operated a home repair and remodeling business. (Id., ¶ 6.) Mary Joan Wienk2 assisted him with the operation of the business. (Id.) Wienk lived next door to Felski (ECF No. 75-2 at 186-87) and had unrestricted access to Felski's house by virtue of having a key and knowing his garage code (ECF No. 75-2 at 57).
In April 2011 Felski was arrested and confined in the Walworth County Jail. (ECF No. 74, ¶ 5.) Felski remained incarcerated until November 2011. (ECF No. 75-2 at 217.) While he was incarcerated, Wienk took care of Felski's house. (Id. at 134-35.)
As stated above, Felski alleges that (apparently while he was incarcerated) Sgt. Schmidt illegally entered Felski's residence and seized two personal computers, business records, checks and original contracts without a search warrant. (ECF No. 12, ¶ 10.) He further alleges that Chief Surges authorized the illegal entry into Felski's residence by Sgt. Schmidt. (Id., ¶ 14.)
The East Troy Police Department did during Felski's incarceration come into possession of certain property allegedly belonging to him. (ECF No. 74, ¶ 12.) Wienk provided the laptop computer to Sgt. Schmidt, who in turn gave it to Felski. (Id.) Wienk also gave the police department a Dell CPU Computer, Dell Computer Keyboard, Dell Printer, and Balance flat screen monitor allegedly owned by Felski. (Id., ¶ 13.)
Felski was asked at his deposition the basis for his allegation that Sgt. Schmidt conducted a search of and seized property from Felski's Ash Street Property. (ECF No. 74, ¶ 11.) Felski could not articulate any factual basis for the allegation. (Id.) The only basis for his belief that the police searched his house and seized certain items was the fact that he learned that the items were at the police station. (ECF No. 75-2 at 204-06.) When asked if he knew how the police came to have possession of the items, Felski testified, "I don't know." (Id. at 222-23.)
Felski was also asked the basis for his allegation that Chief Surges authorized the alleged illegal entry into the Ash Street Property. (ECF No. 74, ¶ 8.) Felski testified that he simply assumed that Chief Surges authorized the entry by Sgt. Schmidt. (Id.) Chief Surges denies that he authorized any member of the East Troy Police Department, including Sgt. Schmidt, to conduct a search of the Ash Street Property; in fact, he denies that the East Troy Police Department, including Sgt. Schmidt, conducted a search of or seized any property from the Ash Street Property. (Id., ¶ 9.)
Felski's claim against Chief Surges and Sgt. Schmidt is wholly without support. All Felski can muster is his unfounded assumption that, because the police were in possession of some items from his home, the police must have unlawfully accessed his home and seized his property. Felski has absolutely no evidence that Sgt. Schmidt entered his home or that Chief Surges authorized any search and seizure. The undisputed evidence is that the police came into possession of certain items from Felski's home because they were lawfully given to the police by Wienk.
Because the undisputed evidence demonstrates that Felski's claim is baseless, the court will grant Surges's and Schmidt's motion for summary judgment.
The following facts are taken from the Joint Proposed Findings of Fact submitted by defendants Bretl, Wrobel, and Perry (ECF No. 80), to which Felski did not respond as required by the Local Rules. See Civil L.R. 56(b)(2)(B) (E.D. Wis.). Thus, the court accepts the defendants' facts as undisputed. See Civil L.R. 56(b)(4) (E.D. Wis.). As stated above, Felski filed a joint response to all three defendants' motions for summary judgment. (ECF No. 127.) Because Felski's response is sworn the court will consider any properly supported, relevant, material facts from his response in resolution of the summary judgment motions. See 28 U.S.C. § 1746.
In 2011 Felski owned six German Shepherd dogs. (ECF No. 80, ¶ 1.) The dogs were kept in the garage and backyard of Felski's Ash Street Property. (Id., ¶ 2.) Three of the dogs were fully-grown and three were still puppies, with two female puppies and one male puppy. (Id., ¶ 3.)
In August 2011 Felski was arrested and taken to into custody at the Walworth County Jail ("Jail"), where he...
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