Flint v. City of Milwaukee

• Decision Date: 20 March 2015
• Docket Number: Case No. 14–CV–333–JPS.
• Citation: 91 F.Supp.3d 1032
• Parties: Jane FLINT, Plaintiff, v. The CITY OF MILWAUKEE, Milwaukee County, Phillip C. Simmert, Paul Felician, Kenneth Daugherty, Jaimie Hewitt, Gregory Colker, David Jonas, Andrew Mourty, and Jutiki Jackson, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

91 F.Supp.3d 1032

Jane FLINT, Plaintiff

v.The CITY OF MILWAUKEE, Milwaukee County, Phillip C. Simmert, Paul Felician, Kenneth Daugherty, Jaimie Hewitt, Gregory Colker, David Jonas, Andrew Mourty, and Jutiki Jackson, Defendants.

Case No. 14–CV–333–JPS.

United States District Court, E.D. Wisconsin.

Signed March 20, 2015.

Jeff Scott Olson, Andrea J. Farrell, Jeff Scott Olson Law Firm SC, Madison, WI, for Plaintiff.

Phillip C. Simmert, Paul Felician, Kenneth Daugherty, Jamie Hewitt, Gregory Colker, Andrew Mourty, and Jutiki Jackson, Jan A. Smokowicz, Assistant City Attorney, Milwaukee City Attorney's Office, Milwaukee, WI, Milwaukee County and Deputy Jonas: Andrew A. Jones, Anthony J. Anzelmo, and Charles H. Bohl, Whyte Hirschboeck Dudek SC, Milwaukee, WI, for Defendants.

ORDER

J.P. STADTMUELLER, District Judge.

1. INTRODUCTION

The plaintiff, Jane Flint (“Flint”), pursuant to 42 U.S.C. § 1983, filed a complaint in this matter on March 25, 2014, alleging the defendants violated her civil rights. (Docket # 1). On October 24, 2014, the Court granted, inter alia, Flint's motion to amend the complaint to add Milwaukee Police Department (“MPD”) Sergeant Jutiki Jackson¹ as a defendant (Docket # 39), and thus the first amended complaint (Docket # 41) became the operative complaint in this matter.

Flint's amended complaint alleges two overarching causes of action, both rooted in the Fourth Amendment: (1) an unlawful seizure of two of her dogs—they were shot and killed during the execution of a search warrant at her residence—against Sgt. Jackson, Detective Phillip C. Simmert, Lieutenant Paul Felician,² Officer Kenneth Daugherty, Officer Andrew Mourty, Officer Jamie Hewitt, and Officer Gregory Colker (collectively “the City defendants”), id. at 16–17; and (2) unlawful detention against the City defendants, id. at 17, and Milwaukee County Deputy Sheriff David Jonas, id. at 18. Flint also alleges a failure to intervene claim against all of the City defendants. Id. at 17.

The City of Milwaukee (“the City”) and Milwaukee County (“the County”) are defendants in this action because Flint alleges that both municipalities “are liable to defend this action against the [d]efendants, and to satisfy any judgment entered against them, by virtue of Wis. Stat. § 895.46.” Id.

On November 14, 2014, cross-motions for summary judgment were filed; specifically: (1) the County and Deputy Jonas filed a motion for summary judgment on the only claim against them—unlawful detention (Docket # 48); (2) the City and the City defendants filed a motion for summary judgment on both claims against them (Docket # 53); and (3) Flint filed a motion for partial summary judgment, requesting resolution of the liability aspect of both causes of action in her favor, but reserving the question of damages for a jury. (Docket # 49). Both the City defendants and Deputy Jonas have asserted that they are entitled to qualified immunity on Flint's claims.

On January 13, 2015, the Court, in light of the Supreme Court's December 15, 2014 decision in Heien v. North Carolina, ––– U.S. ––––, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014), requested that the parties file supplemental briefs “explaining what effect, if any, the Heien decision ha[d] on their respective arguments in support of and in opposition to summary judgment.” (Docket # 84). The parties did so, (see Docket # 85, # 86, # 87), and thus on January 27, 2015, all three motions for summary judgment were fully briefed and ready for adjudication.

Accordingly, the Court now turns to those motions and will deny Flint's motion in its entirety, grant in part and deny in part the City defendants' motion, and grant Deputy Jonas's motion for the reasons outlined below.

2. LEGAL STANDARDS

2.1 Summary Judgment

When a party files a motion for summary judgment, it is their “contention that the material facts are undisputed and the movant is entitled to judgment as a matter of law.” Hotel 71 Mezz Lender LLC v. Nat. Ret. Fund, 778 F.3d 593, 601 (7th Cir.2015) (citing Fed.R.Civ.P. 56(a) ). “Material facts” are those facts which “might affect the outcome of the suit,” and “summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, to have a genuine dispute about a material fact, a party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; namely, the party in opposition “must set forth specific facts showing that there is a genuine issue for trial,” Fed.R.Civ.P. 56(e).

“Where ... the movant is seeking summary judgment on a claim as to which it bears the burden of proof, it must lay out the elements of the claim, cite the facts it believes satisfies these elements, and demonstrate why the record is so one-sided as to rule out the prospect of a finding in favor of the non-movant on the claims.” Hotel 71 Mezz, 778 F.3d at 601. When analyzing whether summary judgment should be granted, a court must draw all reasonable inferences from the materials before it in favor of the non-moving party. See Johnson v. Pelker, 891 F.2d 136, 138 (7th Cir.1989). When a court denies a motion for summary judgment it “reflects the court's judgment that one or more material facts are disputed or that the facts relied on by the motion do not entitle the movant to judgment as a matter of law.” Hotel 71 Mezz, 778 F.3d at 602.

2.2 Qualified Immunity

As noted above, the City defendants and Deputy Jonas have both argued that they are entitled to qualified immunity. As such, the Court will briefly sketch out the legal standard for qualified immunity before more fully analyzing it in relation to each of Flint's claims and the parties' respective motions for summary judgment.

Qualified immunity is available when a defendant's conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ; see Beaman v. Freesmeyer, 776 F.3d 500, 508 (7th Cir.2015). Qualified immunity is not a defense, it is an immunity from suit, i.e., an entitlement not to stand trial. See Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ; Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Consequently, the Supreme Court has repeatedly emphasized the importance of resolving qualified immunity at the earliest possible stage in litigation. Pearson, 555 U.S. at 232, 129 S.Ct. 808.

A court must answer two questions to determine if qualified immunity applies: first, whether a constitutional right “would have been violated,” Viilo v. Eyre, 547 F.3d 707, 710 (7th Cir.2008) (quoting Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ); and second, “whether the right at issue was clearly established at the time and under the circumstances presented.” Beaman, 776 F.3d at 508 ; Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir.2012).³ To answer the first question, “a court must decide whether the facts that a plaintiff has ... shown make out a violation of a constitutional right.” Pearson, 555 U.S. at 232, 129 S.Ct. 808 (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151 ).

Flint can provide the answer to the second question—whether a right was “clearly established” at the time and under the circumstances presented—“in at least two ways: (1) he can point to a clearly analogous case establishing the right to be free from the conduct at issue; or (2) he can show the conduct was ‘so egregious that no reasonable person could have believed that it would not violate established rights.’ ” Beaman, 776 F.3d at 508 (quoting Smith v. City of Chicago, 242 F.3d 737, 742 (7th Cir.2001) ); Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (“This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.”); Viilo, 547 F.3d at 710–11. Thus, novel factual circumstances are no bar to showing a clearly established right, “so long as the state of the law at the time gave the defendants fair warning that their conduct was unconstitutional.” Beaman, 776 F.3d at 509 (citing Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) ); see also Estate of Escobedo v. Martin, 702 F.3d 388, 404 (7th Cir.2012) (“A constitutional right is clearly established when ‘it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ ”) (quoting Saucier, 533 U.S. at 202, 121 S.Ct. 2151 ).

3. DISCUSSION

3.1 Fourth Amendment Seizure Claim for Killing of the Dogs

Flint alleges that the City defendants violated her Fourth Amendment right to be free from unreasonable searches and seizures when they shot and killed two of her dogs while executing a search warrant at her residence. (Docket # 41 at 16–17). The Court will begin by summarizing the undisputed facts and the parties' various arguments in support of and against summary judgment; afterwards, the Court will determine whether either party is entitled to judgment as a matter of law and whether qualified immunity applies.

3.1.1 Undisputed Facts

On or around May 6, 2010, Illinois authorities took a complaint from a woman⁴ who alleged that Terry Cullen (“Cullen”)—Flint's employer, (Docket # 75, ¶ 21)—was in possession of four “Tibetan Wolves” and also possibly illegal animals and reptiles at a residence in Milwaukee. Id. at ¶ 9. During a conversation with Detective Simmert and Officer Hewitt on May 7, 2010, the woman alleged that Cullen sexually...