Wall, Sherry v. City of Brookfield ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 04-3131
SHERRY WALL,
Plaintiff-Appellant,
v.
CITY OF BROOKFIELD, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03-C-0663—Rudolph T. Randa, Chief Judge.
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ARGUED APRIL 4, 2005—DECIDED APRIL 27, 2005
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Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. This case bids fair to bring constitu-
tional litigation into disrepute. The plaintiff, a resident of a
Milwaukee suburb, owns two dogs, one a 95-pound Dober-
man Pinscher that is constantly getting loose and fright-
ening the neighbors. The plaintiff received nine citations for
violating the municipal ordinance that forbids people to let
their dogs run wild. These citations cost her in fines and
attorneys’ fees some $25,000. The next time the dog got out
2 No. 04-3131
the local humane society picked it up and the town authori-
ties told the society to hold on to the dog as a stray, though
they knew it was not a stray—that it was the plaintiff’s
notorious animal. She brought this suit under 42 U.S.C.
§ 1983, contending that the town had deprived her of her
property without due process of law and seeking injunctive
relief and damages. After detaining the dog for 60 days, the
humane society returned it to her, so her suit became one for
the loss of 60 days of animal companionship.
If ever the resolution of a dispute belonged at the local
level of government, it is this dispute over what to do about
the plaintiff’s inability or, more likely, unwillingness to
control her intimidating Doberman. It is impossible to
discern a federal interest. There is no suggestion that the
plaintiff belongs to a discriminated-against minority, that
Wisconsin officialdom is irrationally hostile to dog owners,
that Brookfield intended to sell the Doberman in order to
retire the town debt, that the plaintiff is a political opponent
of the town’s mayor, that leash laws challenge values
embedded in the federal Constitution or federal laws, or
that the detention of the dog was intended as retaliation
against the plaintiff for asserting her federal rights. This is
a neighborhood squabble over a dog, a squabble properly to
be resolved at the neighborhood or local level rather than by
federal judges sitting in Milwaukee and Chicago. Such hotly
litigated issues as whether a neighbor’s two-pound dog the
scruff of whose tiny neck the Doberman clamped its jaws on
was a puppy that the Doberman was playing sweetly with
or a minute adult that the Doberman was terrifying do not
engage the expertise of federal judges.
The plaintiff needs to be reminded that a deprivation of
property is actionable under section 1983 only when it is
accomplished without due process of law and that the
temporary deprivation of property of slight value requires
No. 04-3131 3
only modest process, consistently with the sliding scale
approach of Mathews v. Eldridge, 424 U.S. 319 (1976); see also
Hudson v. City of Chicago, 374 F.3d 554, 559-60, 562 (7th Cir.
2004); Alexander v. Wisconsin Dep’t of Health & Family Ser-
vices, 263 F.3d 673, 688 (7th Cir. 2001); Porter v. DiBlasio, 93
F.3d 301, 305-06 (7th Cir. 1996). The Doberman was seized
without notice and an opportunity for a pre-seizure
hearing—necessarily so, since the dog was picked up in the
street. Only a post-deprivation hearing was feasible. The
plaintiff could have got that by filing a petition in the
county court for the return of an animal “wrongfully with-
held under [Wis. Stat. §] 173.21(1).” Wis. Stat. § 173.22. No
more process than that was constitutionally required. Parratt
v. Taylor, 451 U.S. 527 (1981).
The plaintiff makes the frivolous argument that because
a petition for return of an animal “improperly taken into
custody” is unavailable if the ground for taking the animal
into custody was that it was abandoned or a stray, Wis. Stat.
§§ 173.13(1)(a)1, 173.22(1), she cannot proceed under section
173.22, the petition-for-return section. But that section is
explicit that the petition can be filed either if the claim is that
the animal was improperly taken into custody or if the claim
is that the animal is being wrongfully withheld, and her
contention is that the Doberman was wrongfully withheld.
This is nuisance litigation that the federal judiciary does
not need. So we affirm the judgment but at the same time
issue the plaintiff an order to show cause why she should
not be sanctioned for making a frivolous argument in a
meritless case.
4 No. 04-3131
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-27-05