Zimmerman v. Doran

• Decision Date: 24 November 2015
• Docket Number: No. 15–1242.,15–1242.
• Citation: 807 F.3d 178
• Parties: Anthony ZIMMERMAN, et al., Plaintiffs–Appellants, v. Jeffrey DORAN, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

807 F.3d 178

Anthony ZIMMERMAN, et al., Plaintiffs–Appellants,

v.Jeffrey DORAN, et al., Defendants–Appellees.

No. 15–1242.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 24, 2015.

Decided Nov. 24, 2015.

Stephen T. Fieweger, Attorney, Stephen T. Fieweger, Davenport, IA, for Plaintiffs–Appellants.

Craig L. Unrath, Attorney, Heyl, Royster, Voelker & Allen, Peoria, IL, Scott Salemi, Rockford, IL, for Defendants–Appellees.

Before MANION, ROVNER, and HAMILTON, Circuit Judges.

ROVNER, Circuit Judge.

Anthony Zimmerman and Premier Forest Products, Inc. ("Premier"), of which Zimmerman is president and owner, filed a complaint under 42 U.S.C. § 1983 against defendants Jeffrey Doran, Ryan Kloepping, Kenneth Sandy, and Michael Rannow, who held the positions respectively of sheriff, deputy, chief deputy, and detective of the Carroll County Sheriff's Office. The complaint alleged false arrest in violation of the Fourth Amendment and deprivation of property without due process in violation of the Fourteenth Amendment. The parties presented the district court with cross-motions for summary judgment, and the court granted summary judgment for the defendants and denied summary judgment to the plaintiffs.

Because the parties' Rule 56.1 submission failed to succinctly identify the undisputed issues of fact, and instead included irrelevant facts and legal arguments, the district court gleaned the facts from the record as a whole. We rely on the district court's recitation of facts which are not contested by the parties on appeal.

On April 20, 2010, Premier entered into a contract with Raymond Cichon, a landowner in Carroll County, to harvest trees from Cichon's property. This agreement was the second contract between the parties for the harvesting of trees. The first was in November 2009 for the harvesting of merchantable walnut trees on Cichon's property, and was successfully concluded by the end of 2009. The April 2010 contract was titled "Timber Sale Contract and Deed to Timber," and provided that Premier "may cut and remove from [Cichon's] Lands all the timber marked or designated for removal," and further stated that Premier would "harvest all merchantable Aspen, Elm, Box Elder, Mulberry, Black Locust and all merchantable storm damaged timber including Oak, Cherry, Hickory, Ash, Walnut and Basswood." Toward that end, the contract granted Premier "access to the timber or other forest products designated in this contract." Premier recorded the contract with the county on May 26, 2010, and began its logging operations on July 15, 2010. The project was expected to last one month but was delayed by rain.

In August 2010, the events forming the basis of this case occurred. According to Cichon, he learned at that time that Premier had been harvesting trees without regard to fence lines and thereby removing trees from the property of two of his neighbors as well as from the township's right of way. Cichon also was concerned that Premier was destroying the ground in its work because the ground was unusually wet at the time. In response to those concerns, Cichon contacted his attorney who sent a letter on August 20, 2010, to Richard C. Zimmerman (who was Zimmerman's father and the former owner of Premier) demanding that Premier "cease and desist from any further cutting of trees, removing of any wood products, further destruction of the land, and performing any other activities on the Property." Although the letter was sent to his father, Zimmerman acknowledged that he received the letter on August 24 or 25, but he disregarded it because he believed that the contract could be halted only through a court-issued temporary restraining order.

Cichon also contacted the Carroll County Sheriff's Office in an attempt to halt the logging operations on his property. On August 23, 2010, he informed the dispatcher that he had "retained a logger to do some work on [his] land" but the logger had "taken more than he was supposed to." He further advised the dispatcher that he had retained an attorney and served a "cease and desist" on the logger," and that the logger was "pulling in there right now in the darkness to load up some trees" and requested that the dispatcher send someone out to the property. Deputy Hiher, who is not a defendant in this action, responded to the scene and had the loggers unload the logs and place them back on the property. Informed of that development by his employees, Zimmerman vowed to return to the property the next day. He texted Cichon at 3:10 a.m. on August 24, 2010, and the two exchanged texts in which Cichon told Zimmerman that a stop work order had been issued and that Premier was not to do any work on the property until the matter was resolved. Cichon also informed Zimmerman that he would call the sheriff for trespassing if Zimmerman failed to comply. Zimmerman, however, proceeded to the property with the trucks that morning and waited as the logs were loaded and transported to the mill.

At 6:59 that same morning, Cichon again sought help from the Sheriff's office and Deputy Kloepping and Chief Deputy Sandy soon arrived at the property. Zimmerman informed them that he had never been served with a cease and desist order and showed them the contract granting him the right to harvest timber on the property. Kloepping then spoke with Sheriff Doran and Carroll County State's Attorney Scott Brinkmeier on the telephone regarding how to proceed in the matter. Both Doran and Brinkmeier responded that if Cichon wanted Zimmerman to leave the property, Zimmerman had to comply and he could pursue any breach of contract claims in a civil lawsuit. Brinkmeier further declared that if the property owner wanted someone to leave his property and the person refused, that was a criminal matter and the person could be arrested for criminal trespass.

Kloepping relayed that information to Sandy, who then advised Zimmerman that he needed to exit the property because the owner did not want him there and that if he returned he would be arrested for criminal trespass. Zimmerman agreed to leave for the day. He then investigated whether a temporary restraining order had been filed against him and discovered that nothing had been filed. In the meantime, Kloepping also inquired further into the situation, requesting a copy of the cease and desist order from Cichon, who faxed it to him. Kloepping noticed that the cease and desist order did not show service and spoke with Cichon's attorney the next day who informed him that he had not yet received a return receipt showing delivery of the cease and desist letter. Cichon's attorney also notified Kloepping that they were in the process of filing a federal lawsuit against Premier and maintained that Premier had taken numerous trees that it did not have permission to harvest and that the contract was fraudulent. Cichon's attorney further indicated that Zimmerman should be arrested if he returned to the property.

On the morning of August 25, Sandy spoke with Zimmerman and Zimmerman informed him that he was back on the property and was cutting wood. Zimmerman maintained that since there was no cease and desist order filed, he had the right to fulfill his contract and that the matter was a civil not criminal concern. Sandy alerted Zimmerman that he would be arrested for trespass if he was found on the property.

Accordingly, Deputies Sandy, Kloepping and Rannow proceeded to the property and discovered Zimmerman removing trees from the ground on Cichon's property using a "large motorized construction machine." After allowing Zimmerman to drive the machine off the property and park it, they arrested him.

Zimmerman alleges that the defendants violated his constitutional rights in arresting him for criminal trespass. The district court granted summary judgment for the defendants, concluding that the defendants possessed probable cause for the arrest and alternatively that the defendants were entitled to qualified immunity for their actions. The appellants provide only a generalized, cursory argument that the district court erred in finding qualified immunity, and as that is dispositive we confine our analysis to that issue.

We review a district court's grant of summary judgment based on qualified immunity de novo, accepting all facts and inferences in the light most favorable to the non-moving party. Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir.2013). Under the doctrine of qualified immunity, officials are shielded from civil liability " ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A right is clearly established if it is sufficiently clear that any reasonable official would understand that his or her actions violate that right, meaning that existing precedent must have placed the statutory or constitutional question beyond debate. Mullenix v. Luna, ––– U.S. ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) ; Kingsley v. Hendrickson, 801 F.3d 828,...