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Hardrick v. City of Detroit

United States District Court, E.D. Michigan, Southern Division

November 8, 2016



          Nancy G. Edmunds United States District Judge.

         In January 2005, the Detroit City Council passed an ordinance (the "Ordinance") granting special police powers to officers working in the Animal Control Division ("ACD"). Specifically, the Ordinance provided that ACD officers "shall have the right of entry", without a warrant, "onto any . . . real property within the City for the purpose of capturing . . . or restraining any animal." Over a decade later, Plaintiffs, a group of Detroit residents, filed this action challenging the constitutionality of the Ordinance.

         On February 22, 2016, this Court granted Plaintiffs' request for a preliminary injunction, finding that the Ordinance "clearly [does] not comply with the Fourth Amendment" because it "authorizes the City and its agents to execute a search without a warrant or a legal excuse for not obtaining one . . . ." Hardrick v. City of Detroit, No. 15-13884, 2016 WL 692528, at *4 (E.D. Mich. Feb. 22, 2016). On this premise, Plaintiffs now seek monetary damages against the City and Harry Ward, the former Director of Detroit Animal Control.[1] According to the complaint, Defendants improperly seized Plaintiffs' pets and failed to provide adequate post-deprivation remedies. In addition to asserting two constitutional claims, Plaintiffs maintain that Defendants operated the City shelter in a grossly negligent manner, and that their conduct was purposely designed to inflict emotional distress. Following the close of discovery, both parties moved for summary judgment, which the Court considers here. (Dkt. 54, 55). For the reasons stated more fully below, the Court GRANTS IN PART Defendants' motion and GRANTS IN PART Plaintiffs' motion.

         I. BACKGROUND

         On January 30, 2004, the Detroit City Council passed an ordinance amending Chapter 6 of the City Code. Detroit City Ordinance No. 04-04, § 1 (the “Animal Control Ordinance” or the “Ordinance”). That chapter, titled “Animal Control, Regulation and Care”, governs the “care, control, regulation, and disposition” of animals in the City of Detroit (the “City”). Sec. 6-1-2. The Ordinance establishes a framework for all-things related to the ownership of animals within City limits- including, by way of example, licensing and vaccination requirements, rabies control, and various provisions specifically designed to address so-called “dangerous” or “vicious” animals. A violation of the Animal Control Ordinance is a misdemeanor offense carrying a maximum fine of $500 and up to 90 days in jail. Sec. 6-1-12(c).

         This case revolves around Section 6-1-2(e) of the Ordinance, which provides that:

[t]he animal control officers of the Animal Control Division . . . shall have the right of entry, upon probable cause of a violation of this chapter, onto any premises, residence, or real property within the City for the purpose of capturing, collecting, or restraining any animal. Further, such officers shall have the right of entry, upon probable cause, to any premises, residence, or real property for the purpose of examining any animal suspected of having rabies, having been exposed to rabies, or having attacked or bitten a person or any animal.

Id. (“Section E”) (emphasis added). While the Court has since enjoined the City from relying on Section E, [2] see Hardrick v. City of Detroit, No. 15-13884, 2016 WL 692528 (E.D. Mich. Feb. 22, 2016), Plaintiffs' contend that Detroit Animal Control ("DAC") implemented "this ordinance by routinely picking up [their] pets - without a warrant or any recognized exception to the warrant requirement - on penny-ante premises such as claims that the pets were unlicensed." (Plfs' Mot. Summ. J., 1). The Court endeavors to provide a brief overview of the specific facts giving rise to Plaintiffs' individual claims.[3]

         A. Floyd Hardrick

         On July 7, 2015, while Plaintiff Floyd Hardrick ("Hardrick") was at work, his dog “Mama” jumped through a glass window and escaped from the house. (Defs' Mot. Summ. J. Ex. 2, Hardrick Dep. Tr. 59:21-25). While Mama was running around the neighborhood, a witness called the Detroit Police Department or DAC and reported that she was loose. (Id. at Tr. 56:13-14). Upon arriving on the scene, Officer Malachi Jackson testified that she "observed a white pit bull mix (later identified as 'Mama') charging people and fence jumping and going in and out of a broken window of the house and acting in an aggressive fashion." (Defs' Mot. Summ. J. Ex. 36, Jackson Aff. ¶ 5). According to Hardrick, however, "witnesses on the block" later told him that Mama wasn't vicious and that she didn't attack anybody", (Id. at Tr. 56:13-14), but rather that DAC chased her "with guns out, like they were going to [shoot] . . . and that they scared the dog outside the house and cornered it, . . . ." (Id. at Tr. 61:15-23).

         In the midst of DAC's pursuit, Mama successfully negotiated her way back to the house, jumping through the broken window to avoid capture. Fearing "an immediate threat to public safety", Officer Clark pursued Mama into the house. (Jackson Aff. ¶ 9). Once inside, Officers Clark and Jackson located three dogs- “Puppy” who was in a crate in the basement; “Rocky” who was secured to a chain in the backyard; and Mama. (Id. at ¶ 10). According to Officer Jackson, because "neither Puppy nor Rocky were being properly cared for . . . . " they seized all three dogs and transported them to the City shelter. (Id.) There is no dispute that the Officers entered Hardrick's home without a warrant or consent. (Answer, Dkt. 11 at ¶¶ 23-29).

         Around 10 p.m. that evening, Hardrick returned from work "to find all three of [his] dogs, including Puppy[, ] [missing] . . . ." (Plfs' Mot. Summ. J. Ex. 33, Hardrick Aff. ¶ 8). Neither "the DAC nor the Police Department left a notice or otherwise advised [Hardrick] where [his] dogs were taken." (Id.) After talking to his neighbors and calling a number of local animal organizations, Hardrick was able to deduce that his dogs were taken to the City shelter. (Id. at ¶ 10). The following morning, he reached out to DAC and was informed that he "had to pay $130 [each] to get [his] dogs back." (Hardrick Dep. Tr. 75:2-11). In the end, Hardrick was unable to raise enough money to spring all three dogs, and he "gave written consent for Mama and Puppy to be euthanized." (Id. at Tr. 77: 11-16). As for Rocky, Hardrick maintains that he "came home from the DAC with a severe case of 'kennel cough'[, ] was unable to bark at all and was coughing and spitting up a white mucous/phlegm." (Hardrick Aff. ¶ 17). Rocky died at home on the morning of July 21, 2015. (Id.).

         B. Bianca Peterson

         On June 12, 2015, DAC received a "Report of Animal Bite" indicating that AT&T employee Julian Palmer was bit on the left hand by a blue pitbull who allegedly resided at 16865 Wildemere in Detroit. (Defs' Mot. Summ J. Ex. 6, Bite Report). Plaintiff Bianca Peterson lived at the address identified in the report along with her fiancé and blue pitbull, Rocco. Later that day, two DAC officers arrived at Peterson's home and explained that, because Rocco matched the description of the dog in the bite report, they were required to take him to the shelter for a ten-day rabies hold. (Defs.' Mot. Summ. J. Ex. 7, Peterson Dep. Tr. 52-54). As Peterson explained, "I told them don't go in my yard. I told them to get off my property without some type of proof." (Id. at Tr. 58:23-25). Eventually, however, she relented: "[t]hey told me because of my refusal to turn him over that I would get charged for harboring a vicious animal. With that charge, I would have to pay $500. On top of that, I would serve 30 days in jail for harboring a vicious animal . . . ." (Id. at Tr. 58-59).

         On July 22, 2015, Rocco was released from the shelter. (Id. at Tr. 64: 19-25). Three days later, he was taken to Veterinary Emergency Service with "possible kennel cough." (Plfs. Mot. Summ. J. Ex. 6, Rocco Medical Records). Rocco's condition continued to decline and, on June 29, Peterson made the difficult decision to have him euthanized. (Id.) While Rocco's cause of death was never determined, he tested positive for heartworm disease and his medical records indicate that "there [was] a chance he could have . . . severe bronchopneumonia, tracheal avulsion . . . or some other condition." (Id.).

         C. Theresa Robinson

         In 2015, Plaintiff Theresa Robinson ("Robinson") lived with her two dogs, Sparkles and Diamond, on 7813 Warwick in Detroit. (Defs.' Mot. Summ. J. Ex. 42, Dep. Tr. 43-44). At some point, Robinson defaulted on the terms of her lease agreement, and she was ordered to vacate the premises. (Id. Ex. 43, Judgment of Possession; Order of Eviction). On October 5, 2015, several bailiffs arrived at Robinson's home to reclaim the property. By the time Robinson returned from running errands, "they had already kicked the door in . . . . [and] Diamond and Sparkles were already on the Detroit Animal Control truck." (Id. Dep. Tr. 45:1-2; 47-48). After unsuccessfully pleading with DAC to release Sparkles and Diamond, the dogs were transported to the shelter and impounded. (Id. Dep. Tr. 55-56). Neither dog was licensed or tagged at the time they were removed from the residence. (Id. Dep. Tr. 44:8-15).

         Approximately two weeks later, Robinson went to the shelter to retrieve her dogs. (Id. Dep. Tr. 56:23-25). Unfortunately, Diamond had passed away, and DAC personnel were seemingly unclear on the details. (Id. Dep. Tr. 57-58). After paying $15 in license and vaccination fees, Sparkles was released. (Id. Dep. Tr. 58: 8-11). According to Robinson, when she "picked [Sparkles] up from the animal shelter she had kennel cough, whatever that is, and she's been making that same noise on and off ever since . . . ." (Id. Dep. Tr. 59:8-11). As of May 2016, Sparkles was still alive. (Id. Dep. Tr. 58:13-14).

         D. Rochelle Munson-Griffin

         In mid November, 2014, Plaintiff Rochelle Munson-Griffin's ("Griffin") dog Meijer killed a racoon in her backyard. (Defs.' Mot. Summ. J. Ex. 17, Griffin Dep. Tr. 30:3-6). While Meijer appeared to be fine, Griffin took him to DAC to be examined. (Id. at Dep. Tr. 30:20-22). Upon arriving, Griffin was informed by DAC personnel that, due to Meijer's possible exposure to rabies, he was required to be quarantined for ten-days at the shelter. (Id. at Dep. Tr. 40:6-13). Griffin reluctantly agreed, even though she later maintained that "they told me I couldn't take my dog home, so I had no recourse at that moment." (Id. at Dep. Tr. 40:17-20).

         Meijer was released from the shelter on November 24. Despite arriving "healthy as a lark", Griffin maintains that Meijer's "entire body was in shock when he came home to me. He had not been treated fairly. He had a cough. He would not eat. [His] limbs were swollen . . . [and he] walked with a limp." (Id. at Dep. Tr. 56: 6-14). Five days later, Meijer was admitted for emergency treatment at Blue Pearl Veterinary. (Plfs. Mot. Summ. J. Ex. 9, Notice of Deceased Patient). Meijer's medical records note that he "had moderate amounts of yellow-green discharge OU from both nares, and was intermittently coughing." (Id.). Ultimately, the attending physician concluded "that this carries a poor prognosis even with aggressive therapy in his current state", and Griffin elected to have Meijer euthanized. (Id.)[4]

         E. Frederick Douglass Weems

         In September 2015, Plaintiff Frederick Douglas Weems ("Weems") was living at 16560 Beaverland in Detroit with his dog, Scrappy. (Defs.' Mot. Summ. J. Ex. 40, Weems Dep. Tr. 14:3-7). Weems was subleasing a room from an individual known as "Fatman", who purportedly owned the Beaverland property. On September 24, 2015, while Weems was at work, he "received a call from a neighbor indicating that the Detroit Land Bank was at the home with a large truck, as well as the Detroit Police Department and [DAC]." (Id. at Dep. Tr. 65:3-11). The neighbor indicated that the Land Bank was removing Weems' personal property from the home and preparing to take Scrappy to the shelter. (Id. at Dep. Tr. 65:15-22). As it turned out, the Wayne County Treasurer "acquired the [Beaverland] property though foreclosure in 2014." (Defs.' Mot. Summ. J. Ex. 41, Camargo Aff. ¶3). Despite Weems' request, DAC refused to release Scrappy to the neighbor. (Id.).

         Four days after Weems was evicted, he went to the shelter to check on Scrappy. He soon learned that Scrappy's release was conditioned on the payment of $130- covering a dog license, vaccination, removal, and lodging fees. (Id. at Dep. Tr. 70:7-25). Unfortunately, Weems did not have the cash on hand, but indicated he would return on October 23 after he was paid. (Id. at Dep. Tr. 73:13-15). On October 19, Weems was informed that Scrappy had passed away. (Id.) The DAC was unable to explain the circumstances leading to Scrappy's death, but Weems maintains that it was related to the condition of the shelter. (Id. at Dep. Tr. 80:21-22). Aside from his own general observations of the facility, Weems conceded that he did not have any specific evidence in support of this conclusion. (Id. at Dep. Tr. 81:3-6).

         F. Rousia May

         In early June 2015, Plaintiff Rousia May ("May") was sitting on the front porch with her two dogs, "Brick" and "Pretty Mama"; neither dog was restrained. (Defs.' Mot. Summ. J. Ex. 3, May Dep. Tr. 42:13-17). Brick took off running towards Seven Mile. (Id. at Dep. Tr. 42:23-25). May and Pretty Mama separately pursued Brick until they reached the intersection of Seven Mile and Strasburg. (Id. at Dep. Tr. 46:1-3). According to May, "I told Pretty Mama to stay and sit [unrestrained] at the mailbox, and she did; so I crossed Seven Mile to get Brick." (Id. at Dep. Tr. 46:8-9). Shortly after crossing the street, May captured Brick and carried him back to the mailbox. (Id. at Dep. Tr. 47:2-6). To her surprise, "Animal Control had already picked up Pretty Mama" and put her in the truck. (Id. at Dep. Tr. 47:11-12). While it's unclear exactly what happened next, May maintains that she "picked Brick up and put him on the truck and asked [Animal Control] to bring him [and Pretty Mama] home . . . ." (Id. at Dep. Tr. 48:9-11). Instead, DAC transported both dogs to the shelter. May eventually retrieved Pretty Mama after paying $100 in license and vaccination fees, but Brick wasn't so lucky. (Id. at Dep. Tr. 49). Because he was microchipped in someone else's name, DAC policy required proof that ownership was transferred to May. Unfortunately, Brick died before May was able to acquire the proper documentation. (Id. at Dep. Tr. 52:12-14).

         G. Thomasina McConnell

         On July 9, 2015, Detroit Police were dispatched to 18973 Wormer on a report that Frances Goodwin "was walking [eastbound] ¶ 7 mile pass[ed] Woodbine [street] with her son John Sanford . . . . [when] a brown and white pitbull . . . took off running . . . [and] chased after her son and bit him on his right calf. The dog ran off after [the incident]." (Defs.' Mot. Summ. J. Ex. 22, Detroit Police Report at 1). Upon surveying the surrounding area, Officer Lauren Russell observed "a brown and white pitbull loose with his owner." (Id.). Plaintiff "Thomasina McConnell of 18988 Woodbine [] advised it was her dog. Ms. McConnell stated her daughter Miah . . . took the dog outside and he got off of the chain." (Id.). McConnell agrees with this much, but "claims that nothing happened between the time [her dog] Bam got out of the backyard and the police showed up." (Defs.' Mot. Summ. J. Ex. 23, McConnel Dep. Tr. 59:3-5). In other words, McConnell denies that Bam ever bit anyone.

         Officer Russell advised McConnell that, in light of Sanford's report-and presumably Bam's proximity to the scene of the incident-Bam was required to be quarantined for ten-days at the shelter. (Id. at Dep. Tr. 59:16-19). At the Officers' direction, McConnell transported Bam to the shelter. (Id. at Dep. Tr. 61:2-4). According to DAC records, "Investigator Crosby spoke to [McConnell] who [initially] said that she did not want the dog back and would . . . permanently surrender all rights of ownership or control of the dog." (Defs.' Mot. Summ. J. Ex. 25, DPD Memorandum). Ultimately, however, McConnell refused to sign the surrender form and was issued three misdemeanor tickets for violating the following City ...

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