Timothy Hermann v. Dunn County ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 20, 2019 *
Decided March 20, 2019
Before
DIANE P. WOOD, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 18-3373
TIMOTHY LOUIS HERMANN and Appeal from the United States District
KAREN ELAINE HERMANN, Court for the Western District of Wisconsin.
Plaintiffs-Appellants,
v. No. 17-cv-60-jdp
DUNN COUNTY and DENNIS P. James D. Peterson,
SMITH, Chief Judge.
Defendants-Appellees.
ORDER
Timothy and Karen Hermann owned a farm in Dunn County, Wisconsin, but did
not pay property taxes on it. After the county foreclosed on the property, obtained an
order requiring them to vacate it, and rejected their offer to repurchase it, the sheriff
removed them from the land. The Hermanns sued the county, the sheriff, and others,
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. CIV. P. 34(a)(2)(C).
No. 18-3373 Page 2
asserting that the removal process violated their rights under the Fourth and Fourteenth
Amendments, see 42 U.S.C. § 1983. The district court dismissed some claims and entered
summary judgment for the county and sheriff. Because the defendants permissibly
removed the Hermanns and did not violate their right to due process, we affirm.
We construe the record and draw all reasonable inferences in the Hermanns’
favor. See Morgan v. Schott, 914 F.3d 1115, 1118 (7th Cir. 2019). The county judicially
foreclosed on their property in 2013. The Hermanns did not vacate it until after the
entry on December 12, 2016, of a default judgment ordering them to vacate 14 days later
and authorizing their removal if they did not. The Hermanns received notice of that
judgment four days after its entry, when the county’s sheriff, Dennis Smith, received a
copy of it and left it at the Hermann’s door. (The Hermanns received another copy by
mail.) They vacated the property 10 days later, on December 26, as ordered.
The Hermanns offered to repurchase the property, and the county’s
development committee had discretion to reject their offer. WIS. STAT. § 75.521;
Dunn County, Ordinance 7.7.5 (July 20, 2005). After they vacated the property, the
Hermanns offered $29,000, including back taxes, interest, penalties, and a $500 fee.
Their offer was the minimum acceptable offer, and the committee could charge up to
$77,770 for the property (the assessed value plus a 10% fee). WIS. STAT. § 75.69; Dunn
County, Ordinance 7.7.4 (July 20, 2005). At the public meeting on the issue, the
committee heard from the Hermanns, discussed their offer, and rejected it as
insufficient.
Afterwards, the Hermanns returned to the property, and the county warned
them that they were trespassing. A month later, Sheriff Smith attempted to remove
them, but the Hermanns locked themselves inside. Smith knocked, identified himself,
and told them they were trespassing and that he could remove them. They refused to
budge. As Smith began breaking down the door, Karen Hermann unlocked it. Upon
entering, Smith brushed against Timothy Hermann, and a deputy arrested him.
The Hermanns responded by suing the county, Smith, and others whom they
deemed involved in this process. The district court dismissed all defendants except
Smith and the county. Against Smith, it allowed to proceed claims that the four-day
delay in notifying the Hermanns of the order to vacate and Timothy’s arrest violated
the Fourth and Fourteenth Amendments. Against the county, it permitted claims that
the repurchase process was unfair, discriminatory, and arbitrary. The district court later
entered summary judgment on these claims. It ruled that Smith’s four-day delay in
No. 18-3373 Page 3
delivering notice did not violate due process, Smith had probable cause to arrest
Timothy, and no evidence suggested that he had used unreasonable force. The county
was entitled to summary judgment, the court added, because the Hermanns received
sufficient process in the repurchase proceedings, and no evidence supported allegations
that it acted discriminatorily or arbitrarily.
The Hermanns’ appellate brief is difficult to parse. They appear to challenge the
dismissal of the other defendants, but these dismissals were proper. First, they cannot
sue parts of the county that are not separate from the county itself. Whiting v. Marathon
Cty. Sheriff’s Dep’t, 382 F.3d 700, 704 (7th Cir. 2004). The Sheriff’s Office and the county’s
development committee fall within this rule. Second, dismissal of defendants not
effectively served with process is appropriate, and the Hermanns improperly tried to
serve the State of Wisconsin by delivering a summons to someone at a service window
of the Dunn County Clerk’s Office. See FED. R. CIV. P. 4(j)(2), (m); WIS. STAT. § 801.11(3);
UWM Student Ass’n v. Lovell, 888 F.3d 854, 859 (7th Cir. 2018). Third, the Hermanns
failed to allege any personal involvement of the county treasurer or corporate counsel,
as required under § 1983. Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017).
The Hermanns also challenge the district court’s entry of summary judgment in
the county’s favor. They argue that the state-court judgment that the county obtained
and that harmed them violated Wisconsin law. See WIS. STAT. § 704.19. But they cannot
sue any defendant for the purpose of asking a federal district court to review and
correct an adverse state-court judgment. D.C. Court of Appeals v. Feldman, 460 U.S. 462,
476 (1983); Rooker v. Fidelity Tr. Co., 263 U.S. 413 (1923). Even if, as the Hermanns allege,
the state judgment that harmed them arose from fraud, Rooker-Feldman bars federal
district-court jurisdiction over any claim about a state judgment that allegedly caused
injuries. See Mains v. Citibank, N.A., 852 F.3d 669, 675–76 (7th Cir. 2017).
Regarding Smith, the Hermanns argue that in arresting Timothy, he violated the
Fourth Amendment. They contend that Smith needed a warrant, but the Fourth
Amendment prohibits only unreasonable arrests. See District of Columbia. v. Wesby,
138 S. Ct. 577, 585 (2018). “A warrantless arrest is reasonable if the officer has probable
cause to believe that the suspect committed a crime in the officer’s presence.” Id. at 586.
Smith knew that the Hermanns did not have permission to be on the land, so he had
probable cause to arrest Timothy for trespass. WIS. STAT. § 943.14; State v. Sykes,
695 N.W.2d 277, 283 (Wis. 2005). Nor is there any basis for the Hermanns’ claim that the
arrest involved “unreasonable force.” A jury would have to find that Smith’s use of
force was “objectively reasonable under the circumstances.” Dockery v. Blackburn,
No. 18-3373 Page 4
911 F.3d 458, 461 (7th Cir. 2018). After the Hermanns ignored orders to vacate and
locked themselves in, Smith responded reasonably by attempting to remove the door;
he used no significant force on Timothy, just an inadvertent brush.
The Hermanns next argue that both defendants violated their right to due
process. Before the state may deprive a person of a protectible interest, due process
“generally requires only ‘notice and an opportunity to be heard.’” Black Earth Meat
Market, LLC v. Vill. Of Black Earth, 834 F.3d 841, 850 (7th Cir. 2016) (quoting Dusenbery v.
United States, 534 U.S. 161, 167 (2002)). The Hermanns maintain that Smith offended due
process in delaying by four days his delivery of the notice of the default judgment,
thereby giving them 10 days instead of 14 to leave the property. But Smith did not
deprive the Hermanns of any protectible interest—they remained at the property for the
entire 14 days—so no violation of due process occurred. See Tom Beu Xiong v. Fischer,
787 F.3d 389, 399 (7th Cir. 2015). Likewise, no reasonable jury could find that the county
denied the Hermanns due process. They argue that Dunn County Ordinance 7.7.5(2)
required the county to accept their repurchase offer. But this ordinance merely gave the
county the option to allow the Hermanns to bid. WIS. STAT. § 75.35(3); Dunn County,
Ordinance 7.7.5(1) (July 20, 2005) (“The Committee is further authorized, but not
required, to give such former owners first option to purchase said land.”). In any event,
a violation of state law does not in itself create a violation of due process. Swarthout v.
Cooke, 562 U.S. 216, 221–22 (2011).
We have considered the Hermanns’ other arguments, and none has merit.
AFFIRMED