Porter v. DiBlasio, No. 95-2968

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore POSNER, Chief Judge, and BAUER and KANNE; KANNE
Citation93 F.3d 301
PartiesHugh C. PORTER, Plaintiff-Appellant, v. Susan DiBLASIO, Dane County Humane Society, Paul W. Humphrey, and Dane County, Defendants-Appellees.
Docket NumberNo. 95-2968
Decision Date14 August 1996

Page 301

93 F.3d 301
Hugh C. PORTER, Plaintiff-Appellant,
v.
Susan DiBLASIO, Dane County Humane Society, Paul W.
Humphrey, and Dane County, Defendants-Appellees.
No. 95-2968.
United States Court of Appeals,
Seventh Circuit.
Argued Jan. 12, 1996.
Decided Aug. 14, 1996.

Page 303

Steven J. Schooler (argued), P. Scott Hassett, Lawton & Cates, Madison, WI, for Hugh C. Porter.

Meg Vergeront (argued), Stafford, Rosenbaum, Rieser & Hansen, Madison, WI, John M. Moore, Stephen Ehlke (argued), Bell, Metzner, Gierhart & Moore, Madison, WI, for Susan DiBlasio, Dane County.

Brian E. Butler, Stafford, Rosenbaum, Rieser & Hansen, Madison, WI, for Dane County Humane Soc.

Richard Perkins, Office of the Atty. Gen., Wisconsin Dept. of Justice, Madison, WI, for Paul W. Humphrey.

Before POSNER, Chief Judge, and BAUER and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Dane County officials seized Hugh Porter's nine thoroughbred racehorses and charged the person caring for them with criminal neglect. Without giving Porter notice or an opportunity for a hearing, the Dane County Humane Society terminated Porter's ownership interest in the horses and vested ownership of the horses in itself. The Humane Society then transferred its ownership interest in the horses to new, adoptive owners in exchange for nominal sums. Porter filed an action under 42 U.S.C. § 1983 alleging, among other things, that the defendants terminated his property interest in the horses without due process of law in violation of the Fourteenth Amendment. The district court dismissed the case, finding that Porter's amended complaint failed to state a viable due process claim. It found that the defendants' deprivation of Porter's property interest was random and unauthorized and that Porter's due process rights were adequately protected by postdeprivation remedies at state law. We reverse on the ground that Porter's complaint states two viable procedural due process claims.

I

Hugh Porter left his nine thoroughbred racehorses in the care of Susan Lulling at her farm in Dane County, Wisconsin, while he resided in Anchorage, Alaska. Lulling allegedly neglected the horses, and on October 15, 1992, Susan DiBlasio, a humane officer with the Dane County Humane Society, 1 and several deputies of the Dane County Sheriff's Department seized eleven horses located at Lulling's farm, including Porter's nine horses. Among other items seized were documents that demonstrated Porter's ownership of the nine horses, as well as his address and telephone number in Alaska.

Dane County officials did not notify Porter of the seizure. However, he learned of the seizure (presumably through Lulling), and he called DiBlasio the week following the seizure and demanded the return of his horses. DiBlasio told Porter that he would have to pay restitution within five days and take the horses to a different farm or they would be placed for adoption. On October 29, 1992, Lulling was charged with several counts of neglect relative to her treatment of the eleven horses. Porter was not charged.

Assistant Dane County District Attorney Paul Humphrey wrote two letters to Lulling's attorney informing Lulling that she was required to pay the boarding charges for the horses. The second letter, dated February 22, 1993, notified her that if she did not pay the $10,568.67 in boarding charges within five days "then under the statute, we will treat them as strays and deal with them accordingly. See Sec. 951.15(3), Stats." The county never attempted to directly notify Porter that it would treat his horses as strays.

Five days after the February 22 letter, the Humane Society terminated Porter's ownership rights in his horses, 2 vested ownership

Page 304

of the animals in itself, and began preparations for adopting the horses out. Porter was not provided notice of the impending termination nor was he provided an opportunity for a hearing to challenge the legality of the seizure or the reasonableness of the boarding charges.

Between March 5 and May 1, 1993, eight of Porter's horses were adopted from the Humane Society, with the adopters paying the Humane Society nominal sums. 3 The adopters included DiBlasio, DiBlasio's daughter, and the veterinarian who was to testify regarding the alleged neglect of the animals.

Porter filed suit under 42 U.S.C. § 1983 on April 14, 1995. He alleged that the defendants had deprived him of his property interest in the horses without due process of law. Porter also alleged that DiBlasio and Humphrey conspired to violate his right to due process. He alleged that pursuant to the conspiracy DiBlasio and Humphrey did not provide him notice, terminated his property interest without providing him an opportunity for a hearing, and adopted out the horses for nominal sums to DiBlasio and her family and friends. Porter further alleged that the defendants violated his right to substantive due process because the transfer of ownership of the horses for nominal sums was arbitrary and capricious and constituted a taking without just compensation in violation of the Fifth Amendment. Finally, Porter alleged that DiBlasio and the Humane Society were liable for conversion.

The various defendants filed different motions seeking to dispose of the case. Initially, Humphrey filed a motion under FED. R. CIV. P. 12(b)(6), arguing that Porter's complaint failed to state a viable due process claim. While that motion was pending, the Humane Society and DiBlasio, in her capacity as an employee of the Humane Society, filed a motion under FED. R. CIV. P. 12(c) for judgment on the pleadings, also arguing that Porter's complaint failed to state a viable due process claim.

The district court granted Humphrey's motion to dismiss. It found that WIS. STAT. § 951.15(2), 4 which requires that an owner be notified of the seizure of his animals, and § 951.15(3), 5 which provides that if the owner or custodian does not redeem the animals within five days of the notice by paying the boarding charges the animals will be treated as strays, provided Porter all the predeprivation process that he was due. According to the district court, the defendants' termination of Porter's ownership rights without providing him notice was the type of "random and unauthorized" deprivation for which the state could not have been expected to provide additional predeprivation process. See Parratt v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 1916, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Easter House v. Felder, 910 F.2d 1387, 1396 (7th Cir.1990), cert. denied, 498 U.S. 1067, 111 S.Ct. 783, 112 L.Ed.2d 846 (1991). Because adequate postdeprivation remedies were available in the form of a claim for conversion and a right to request the return of seized property under WIS. STAT. § 968.20(1), the district court found that Porter had failed to state a viable due process claim.

Porter filed a motion for reconsideration, arguing that the district court had failed to consider the merits of his substantive due process claim based on the Takings Clause of the Fifth Amendment. The district court

Page 305

denied the motion, finding that Porter's fifth amendment rights had not been violated because the termination of Porter's ownership interest was the result of Porter's neglect in not taking prompt action to secure the return of the horses after they had been seized. The district court granted the Humane Society and DiBlasio's motion for judgment on the pleadings, reciting the same analysis it had used in its memorandum and order granting the motion to dismiss. The parties then stipulated to the entry of summary judgment in favor of Dane County and DiBlasio, in her capacity as a Dane County employee, on the grounds set forth in the district court's decision to grant the motion for judgment on the pleadings.
II

The first issue we must decide is what standard of review to apply in reviewing the district court's decisions. The defendants submitted, and the district court granted, two different types of dispositive motions. The issues appealed concern the viability of Porter's constitutional claims underlying his § 1983 lawsuit, and the district court conclusively decided those issues in ruling on Humphrey's motion to dismiss under Rule 12(b)(6). The district court simply recited the same analysis in ruling on the Rule 12(c) motion.

The appropriate standard of review is that which corresponds to the motion under which the district court conclusively resolved the issues appealed. It would make little sense for us to apply a standard of review corresponding to a motion the district court later granted if it disposed of the later motion on the basis of reasoning in an earlier order. Thus, because the district court actually resolved the relevant issues in deciding the motion to dismiss under Rule 12(b)(6), we believe our standard of review under Rule 12(b)(6) is also appropriate for our review of the disposition of the Rule 12(c) motion.

We review a district court's decision to grant a motion to dismiss under Rule 12(b)(6) de novo, accepting the well-pleaded allegations in the complaint as true and drawing all reasonable inferences in favor of the plaintiff. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1429 (7th Cir.1996). A dismissal under Rule 12(b)(6) is proper only where the plaintiff can prove no set of facts that would entitle him to relief. Id. at 1429-30.

III

Porter's § 1983 complaint alleges three constitutional violations. Only the alleged procedural due process violations state a claim upon which relief can be granted.

Procedural due process requires a two-step analysis. First, we consider whether the plaintiff was deprived of a constitutionally protected interest in life, liberty, or property. If he was, we then determine what process he was due with respect to that deprivation. Logan v. Zimmerman Brush Co., 455...

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94 practice notes
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    • United States
    • Federal Register January 06, 2000
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    ...(1987).) Regulatory actions taken to protect the public health are rarely, if ever, held to constitute takings. (See Porter v. DiBlasio, 93 F.3d 301, 310 (7th Cir. 1996) (action taken to protect public health falls within class of property deprivations for which Fifth Amendment does not req......
  • Belcher v. Norton, No. 06-3174.
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    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 15 Agosto 2007
    ...If the plaintiffs can establish such a loss, we then must determine what process was due regarding that loss. Porter v. DiBlasio, 93 F.3d 301, 305 (7th There is no dispute that Bill's Towing had a lien on Ms. Gleason's van for the towing and storage charges incurred by the plaintiffs when t......
  • Bogart v. Chapell, No. 03-2092.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 2 Febrero 2005
    ...exigent circumstances, a person has a right to due process prior to the destruction of her animal. Id. at 8-9 (citing Porter v. DiBlasio, 93 F.3d 301, 306-07 (7th Cir.1996); DiCesare v. Stuart, 12 F.3d 973, 978 (10th Cir.1993)) (other citations The court noted that, in this matter, it is un......
  • Mallett v. Wisconsin Div. of Vocational Rehabilitation, No. 94-2601
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 1 Diciembre 1997
    ...well-pleaded allegations in the complaint as true and drawing all reasonable inferences in favor of the plaintiff. See Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir.1996). A dismissal under Rule 12(b)(6) is proper only where the plaintiff can prove no set of facts that would entitle him to ......
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92 cases
  • Belcher v. Norton, No. 06-3174.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 15 Agosto 2007
    ...If the plaintiffs can establish such a loss, we then must determine what process was due regarding that loss. Porter v. DiBlasio, 93 F.3d 301, 305 (7th There is no dispute that Bill's Towing had a lien on Ms. Gleason's van for the towing and storage charges incurred by the plaintiffs when t......
  • Bogart v. Chapell, No. 03-2092.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 2 Febrero 2005
    ...exigent circumstances, a person has a right to due process prior to the destruction of her animal. Id. at 8-9 (citing Porter v. DiBlasio, 93 F.3d 301, 306-07 (7th Cir.1996); DiCesare v. Stuart, 12 F.3d 973, 978 (10th Cir.1993)) (other citations The court noted that, in this matter, it is un......
  • Mallett v. Wisconsin Div. of Vocational Rehabilitation, No. 94-2601
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 1 Diciembre 1997
    ...well-pleaded allegations in the complaint as true and drawing all reasonable inferences in favor of the plaintiff. See Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir.1996). A dismissal under Rule 12(b)(6) is proper only where the plaintiff can prove no set of facts that would entitle him to ......
  • Bolton v. Bryant, No. 14 C 03580
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    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 21 Octubre 2014
    ...costs of such process.” Siebert, 256 F.3d at 659 ; see also Ellis v. Sheahan, 412 F.3d 754, 757–58 (7th Cir.2005) ; Porter v. DiBlasio, 93 F.3d 301, 305–06 (7th Cir.1996). So the Court must apply the Mathews balancing test to determine whether the particular combination of procedural safegu......
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