Folkers v. City of Waterloo, Iowa

582 F.Supp.2d 1141

Russell A. FOLKERS, Plaintiff, v. CITY OF WATERLOO, IOWA, Darrel Johnson, in his individual capacity and as Animal Control Officer for City of Waterloo, Iowa, and Maria Tiller, in her individual capacity and as Animal Control Officer for the City of Waterloo, Iowa, Defendants.

No. C07-2066.

United States District Court, N.D. Iowa, Eastern Division.

October 27, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas P. Frerichs, Frerichs Law Office PC, Waterloo, IA, for Plaintiff.

Timothy C. Boller, Dunakey & Klatt, PC, Waterloo, IA, for Defendants.

RULING ON MOTIONS FOR SUMMARY JUDGMENT

JON STUART SCOLES, United States Magistrate Judge.

TABLE OF CONTENTS

I. INTRODUCTION .........................................................1145
 II. PROCEDURAL HISTORY ...................................................1145
III. ISSUES PRESENTED .....................................................1145
 IV. RELEVANT FACTS .......................................................1146
  V. LEGAL STANDARD FOR SUMMARY JUDGMENT ..................................1148
 VI. DISCUSSION ...........................................................1149
     A. Plaintiff's Motion for Partial Summary Judgment ...................1149

1. Was the Conduct Complained of Committed by Persons Acting
Under Color of State Law? ....................................1149
        2. Did the Conduct Deprive Folkers of a Constitutional Right? .....1150
           a. Fourth Amendment ............................................1150
           b. Fifth Amendment .............................................1151
           c. Fourteenth Amendment ........................................1152
              (1) Procedural Due Process ..................................1152
              (2) Substantive Due Process .................................1154
           d. Summary .....................................................1156
     B. Defendants' Motion for Summary Judgment ...........................1156
VII. ORDER ................................................................1157

I. INTRODUCTION

This matter comes before the Court on the Motion for Partial Summary Judgment (docket number 48) filed by the Plaintiff on June 2, 2008, and the Motion for Summary Judgment (docket number 52) filed by the Defendants on August 12, 2008. Defendants' request for oral argument is hereby denied. Pursuant to Local Rule 7.c, the motions will be decided without oral argument.

II. PROCEDURAL HISTORY

On September 25, 2007, Plaintiff Russell A. Folkers filed a Complaint (docket number 2) seeking injunctive relief and compensatory damages. Plaintiff alleges a taking of his property without due process of law, in violation of his rights under the Fifth and Fourteenth Amendments. On October 6, 2007, Defendants City of Waterloo, Iowa, Darrel Johnson, and Maria Tiller, filed their Answer (docket number 13) denying the material allegations and asserting certain affirmative defenses.

The request for temporary restraining order was referred by District Judge Edward J. McManus to the undersigned Magistrate Judge for a report and recommendation. Pursuant to this Court's recommendation, Judge McManus enjoined the Waterloo City Council from proceeding until the Court had an opportunity to consider Plaintiff's request for a preliminary injunction. The matter was then referred to the undersigned Magistrate Judge for a report and recommendation in that regard.

Following a hearing, this Court recommended that Plaintiff's request for a preliminary injunction be denied and the temporary restraining order be set aside. The Court also recommended, however, that the City Council be enjoined from relying on the third alternative definition of "dangerous dog," as set forth in Ordinance No. 5-1B-1(C). This Court's recommendations were adopted by Judge McManus on November 14, 2007, 2007 WL 3430936.

On January 22, 2008, the Court established a Scheduling Order and Discovery Plan. Pursuant to the agreement of the parties, this case was referred to the undersigned Magistrate Judge for all further proceedings. Trial is scheduled on January 5, 2009.

III. ISSUES PRESENTED

In his motion for partial summary judgment, Plaintiff requests that the Court determine, as a matter of law, that he "suffered a deprivation of his property interest in his dog Cleo without due process of law." Plaintiff argues that the only issues remaining for the jury are "whether such depravation [sic] was a proximate cause of any damages to Folkers and if so the extent of such damages." In their motion for summary judgment, Defendants argue that there was no violation of constitutional due process and, in any event, the individual Defendants enjoy qualified immunity.

IV. RELEVANT FACTS

Plaintiff Russell A. Folkers ("Folkers") is an over-the-road truck driver who lives part of the time in Waterloo, Iowa, and part of the time in Edinburg, Texas. This case arises from the temporary taking of Folkers' dog, Cleo, by Waterloo animal control officers on August 28, 2007. Cleo was returned to Folkers' possession on December 7, precisely 100 days later.

The facts surrounding Cleo's seizure were described by the Court in its Report and Recommendation on the preliminary injunction, as follows:

Plaintiff Russell Folkers, who resides in the City of Waterloo, is the owner of a five-year-old mixed-breed dog named "Cleo." According to Folkers, Cleo is half Pitbull and half American Bulldog. On Sunday, August 26, 2007, Cleo and another dog ("Lexus") were running loose on Folkers' property. Folkers testified that Lexus is a full-bred American Bulldog which belongs to his son, but stays with Folkers when his son is in town.

Rosemary Parr and her family have lived across the street from Folkers' property since mid-June 2007. Parr owns a Bichon Frise by the name of "Sassy." During the late afternoon on August 26, Parr's daughter put Sassy on a leash and took her outside for a walk. Within seconds, however, Parr's daughter returned to the house and reported that Sassy was being attacked. When Parr went outside, she saw that two dogs had Sassy pinned to the ground. Parr yelled at the other dogs and tried to hit them with a dishrag, but was unable to deter them. Parr went back inside to get her husband, and by the time she returned the dogs had carried Sassy across the street. As a result of the attack, Sassy suffered serious injuries and was hospitalized at a veterinarian's office for five days. It is undisputed that the two dogs involved in the attack were Cleo and Lexus.

Rosemary Parr reported the incident to animal control authorities and it was investigated by Defendant Darrel Johnson ("Johnson"), a part-time Black Hawk Animal Control Officer. Johnson testified that he responded to the scene, discussed the incident with Mr. Parr, and then went across the street to discuss the matter with Folkers. No one responded to the door, however, and Johnson did not hear any dogs, so he left a "door hanger" on the Folkers residence, requesting that he be contacted. Johnson then waited at the end of the street to see if anyone came to the Folkers residence. No one appeared, however, and Johnson then left. That evening, Johnson called Defendant Maria Tiller ("Tiller"), a full-time Black Hawk Animal Control Officer. According to Tiller, she and Johnson discussed the matter briefly, but did not talk about seizing the dogs at that time.

On the following morning (Monday, August 27), Folkers called the animal control office, apparently in response to the notice left on his door, but Johnson was not in. When Johnson returned to the office, he called Folkers back. Johnson testified that he advised Folkers during the phone call that he would be issued a citation for dogs running at large and Folkers repeatedly asked him what their intentions were regarding Cleo. Johnson advised Folkers that they would discuss it when he delivered the citations, which the parties agreed would be the following day. During the phone call, Plaintiff told Johnson that Lexus was with his son, and was no longer at the residence. Officer Tiller testified that after Johnson's telephone conversation with Folkers, she made a decision to seize Cleo. According to Tiller, the factors which she considered in making that determination included the serious injuries suffered by Sassy in the attack, the history of Animal Control responding to Folkers' property, reports that Folkers would intimidate his neighbors when complaints were made, the fact that Lexus was gone, and the fact that Folkers is a truck driver, thereby allegedly making it easier for him to remove the dog from the City's jurisdiction.

Tiller testified that prior to deciding to seize Cleo, she contacted the veterinarian where Sassy was being treated and was advised that the injuries were life-threatening. She also reviewed the prior reports regarding calls to the Folkers residence. The reports (Plaintiffs Exhibit 4) reflect five calls for dogs running at large, and one complaint of barking dogs, between April 13, 2002, and February 24, 2005. Two of the reports (05/10/2002 and 06/22/2003) refer to threats to neighbors, allegedly made by Folkers in retaliation for their complaints.

On Tuesday, August 28, Officer Johnson went to Folkers' home and delivered four citations (Defendants' Exhibit D). Folkers was cited twice for "dog at large," in violation of § 5-1A-6A of the Waterloo City Ordinances, and two counts of "fear of attack," in violation of Ordinance 5-1A-6B. Johnson advised Folkers that he was seizing Cleo, and Folkers cooperated in loading Cleo into the truck. Johnson acknowledged that Cleo was "friendly" when he was placed in the vehicle.

See Report and Recommendation (docket number 21) at 3-6 (footnotes omitted).

On the day following the seizure, Defendants Darrel Johnson ("Johnson") and Maria Tiller ("Tiller") signed an order concluding that Cleo was a "dangerous dog" and must ...