NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0950n.06
No. 13-1058
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KIMBERLY CAROL SCHULZ, ) FILED
) Nov 05, 2013
Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk
)
v. )
)
DAVID GENDREGSKE; BRIAN MCDOWELL, )
)
Defendants-Appellants, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
and ) THE EASTERN DISTRICT OF
) MICHIGAN
COUNTY OF CLARE, )
)
Defendant.
Before: COLE, KETHLEDGE, and STRANCH, Circuit Judges.
KETHLEDGE, Circuit Judge. Animal-control officers in Clare County, Michigan seized
Kimberly Schulz’s golden retrievers and then put them up for adoption without her consent. She
sued Animal Control Director David Gendregske and Animal Control Officer Brian McDowell for
state-law conversion and for violations of her Fourth and Fourteenth Amendment rights. The
officers appeal the district court’s partial denial of their motion for summary judgment. We reverse.
I.
We take the facts in the light most favorable to Schulz. See Stoudemire v. Mich. Dep’t of
Corrs., 705 F.3d 560, 565 (6th Cir. 2013).
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Schulz bred golden retrievers for sale as pets and service dogs. Schulz also owned several
horses. A court had previously ordered Schulz to remove all but three dogs from her own residence,
so she hired Barry Laubscher to care for the animals on his property. In exchange, Schulz paid
Laubscher’s rent and bought him food.
On March 12, 2009, Gendregske and McDowell went to Laubscher’s residence to investigate
complaints that the horses there were starving. The officers knew from prior visits that Laubscher
kept horses and golden retrievers on his property. As the officers pulled into the driveway, they saw
nine horses in small pens. Closer inspection revealed evidence of underfeeding: the horses had
visible rib and hip bones, they had apparently been eating the bark off nearby pine trees, and the
amount of dung in their pens was abnormally small. In addition, there was only one bale of hay at
the property, though Laubscher told the officers that a delivery was scheduled for later that day.
Gendregske and McDowell also noticed that the horses’ water was frozen and that one horse’s leg
was bleeding. Laubscher told the officers that he had just finished taking care of the dogs and was
about to break the ice on the horses’ water.
After leaving the residence, McDowell immediately prepared and submitted an affidavit for
a search warrant. The affidavit stated that McDowell “observed there was no food or water available
for any of the animals on the property.” A magistrate authorized a search of Laubscher’s residence
and the seizure of “any and all animals including but not limited to: golden retriever dogs and 9
horses.” A half-hour later, animal-control officers searched the property. In a large metal shed, they
found 23 golden retrievers who appeared to be healthy. Officers seized the horses and all 23 dogs.
Approximately ten days later, the Clare County prosecutor charged Schulz and Laubscher with
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abandonment and cruelty to 4–10 animals. See Mich. Comp. Laws § 750.50(4)(c). The animals
remained in Gendregske’s custody while those charges were pending.
A few weeks later, on April 13, 2009, a Livingston County judge sentenced Schulz to two
years of probation on an unrelated charge of “animals running at large.” As a condition of her
probation, Schulz could not own or possess any animals or reside on any premises where animals
were kept. When Gendregske learned of Schulz’s sentence, he put the seized animals up for
adoption without notifying Schulz.
Shortly thereafter, Gendregske received a complaint that two adult golden retrievers were
loose near Laubscher’s residence. Gendregske went to the residence, but no one answered. He
could hear a puppy whining inside. The next day, Gendregske returned and questioned Laubscher
about the dogs. According to Laubscher, Schulz’s husband had left the two adult golden retreivers
with Laubscher’s sister, who, in turn, left them with Laubsher.
What happened next is disputed, but we accept as true Schulz’s description of the events.
See Keith v. City of Oakland, 703 F.3d 918, 923 (6th Cir. 2013). According to Schulz, Gendregske
told Laubscher that Schulz was planning to blame Laubscher for the mistreatment of the
horses—specifically, that he had spent the money she had given him for the horses’ food on alcohol.
Gendregske then said he would ask the prosecutor to drop or reduce the animal-cruelty charges
against Laubscher if he would admit that Schulz had given the puppy to Laubscher while she was
on probation. Eventually, Laubscher told Gendregske that Schulz had given him the puppy.
Gendregske then notified Schulz’s probation officer that Schulz had possessed an animal in violation
of the court’s order. The probation officer scheduled a hearing for June.
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Before the probation hearing, a Clare County judge found probable cause to try both Schulz
and Laubscher for animal cruelty and abandonment of the horses seized from Laubscher’s property.
The judge made no findings as to the dogs because “[t]here was no testimony with regards to the []
retrievers” and there was no “reason to believe that there was inadequate care for the dogs.”
At Schulz’s probation violation hearing, she swore that she had not “contact[ed], possessed,
owned, or lived with any animal” after the April 13th Order. Laubscher testified that he had lied to
Gendregske when he said Schulz gave him the puppy. When asked why he lied, Laubscher replied,
“it’s quite the story; it’s an on-going story.” The judge found that there was insufficient evidence
that Schulz violated her probation.
On November 13, the Clare County prosecutor dismissed the abandonment and cruelty
charges against Schulz and Laubscher, citing the need to investigate further before proceeding. The
county has not pursued those charges.
Schulz thereafter sued Gendregske and McDowell, among others, for violating her
constitutional rights and committing various torts. The officers moved for summary judgment, in
response to which Schulz voluntarily dismissed several claims. The district court granted the motion
as to some of the remaining claims but denied it as to Schulz’s claims of unlawful seizure of her
dogs, false arrest for a probation violation, procedural due process violations, and state-law
conversion for the dogs’ adoption. The officers now appeal the court’s denial of qualified and state-
law immunity as to those claims.
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II.
“We review the denial of summary judgment on the basis of qualified immunity de novo.”
Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013). “Determinations of
qualified immunity require us to answer two questions: first, whether the officer violated a
constitutional right; and second, whether that right was clearly established in light of the specific
context of the case.” Hayden v. Green, 640 F.3d 150, 153 (6th Cir. 2011). On interlocutory appeal,
however, “[w]e lack jurisdiction to consider a district court’s . . . determin[ation] [that] . . . the
pretrial record sets forth a genuine issue of fact for trial.” Moldowan v. City of Warren,
578 F.3d 351, 369–70 (6th Cir. 2009) (internal quotation marks omitted). Thus, we consider only
whether the district court erred in holding that the officers were not entitled to qualified immunity
as a matter of law. Id.
A.
Gendregske and McDowell first claim that they are entitled to qualified immunity on
Schulz’s claim of unlawful seizure. Schulz alleges that McDowell’s affidavit was false and
misleading, and that the resulting warrant authorizing the dogs’ seizure was invalid. A warrant is
invalid if the officer “knowingly and deliberately, or with a reckless disregard for the truth, made
false statements or omissions” in a warrant application and “such statements or omissions were . .
. necessary[] to the finding of probable cause.” Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir. 2010)
(internal quotation marks and alterations omitted). The district court found a material question of
fact as to whether the warrant included false or misleading statements.
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On appeal from the denial of qualified immunity, however, we lack jurisdiction to review
the district court’s determination that there was a genuine issue of material fact as to whether
portions of McDowell’s affidavit were false and misleading. See Johnson v. Jones, 515 U.S. 304,
319–20 (1995). Instead, we must “set aside the [allegedly false] statements and include the
information omitted in order to determine whether the affidavit is still sufficient to establish
probable cause.” Sykes, 625 F.3d at 305. The existence of probable cause depends on whether the
facts and circumstances were sufficient for a reasonable person to believe that the defendant had
committed or was committing a crime. Beck v. Ohio, 379 U.S. 89, 91 (1964). If not, the warrant
is invalid, and the resulting seizure unlawful.
Moreover, government officials are entitled to qualified immunity for “objectively
reasonable mistakes, regardless of whether the government official’s error is a mistake of law, a
mistake of fact, or a mistake based on mixed questions of law and fact.” Hensley v. Gassman, 693
F.3d 681, 687 (6th Cir. 2012) (internal quotation marks omitted). Thus, the officers here are entitled
to qualified immunity “unless it is obvious that no reasonably competent official would have
concluded” that the warrant was supported by probable cause. Chappell v. City of Cleveland, 585
F.3d 901, 907 (6th Cir. 2009).
Here, the statements that Schulz alleges are false or misleading are that there was no food
or water “available for any of the animals,” and that there was only one bale of hay for the horses.
She contends that McDowell knew that there was plenty of food for the dogs, that Laubscher was
about to break the horses’ water, and that Laubscher was expecting a hay delivery later that day.
We must therefore consider the affidavit without the statement about the dogs’ food and with the
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additional information about the horses’ hay and water. But even with these omissions and
alterations, there was probable cause to seize both the dogs and the horses. The affidavit states that
McDowell observed three emaciated horses “in need of immediate medical attention” and that “[t]he
remainder of the horses seemed to be under weight.” One horse was in “the wors[t] condition a
horse can be in.” And McDowell—who “received extensive training in all aspects of animal
control”—stated his belief that a search of the property would lead to further evidence of animal
cruelty. This evidence sufficed for McDowell to reasonably believe that Schulz and Laubscher were
likely mistreating all of the animals in their care. There is no clearly established law that prohibits
an officer from seizing all of an individual’s animals where there is evidence that many of the
animals were severely mistreated. See, e.g., Brown v. Tull, 218 F.3d 743, 2000 WL 821404 at *5
(5th Cir. 2000) (unpublished table opinion). Indeed, common sense suggests that where there is
evidence that an animal owner mistreats a substantial number of her animals, it is likely that she
mistreats all of the animals in her care. McDowell is therefore entitled to qualified immunity on
Schulz’s claim of unlawful seizure.
Schulz does not allege that Gendregske was involved in preparing the affidavit or presenting
the warrant application to the magistrate. Gendregske is therefore entitled to qualified immunity on
this claim. See Vakilian v. Shaw, 335 F.3d 509, 517 (6th Cir. 2003).
B.
Gendregske next argues that he is entitled to qualified immunity on Schulz’s false arrest
claim. Schulz contends that Gendregske coerced Laubscher into lying about receiving the puppy
from her, that Gendregkse knew Laubscher was lying, and that Gendregske knowingly provided this
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false information to her probation officer, which in turn led to her arrest. Gendregske contends that
he is entitled to qualified immunity because he did not coerce Laubscher and because a reasonable
officer would have believed Laubscher when he told Gendregske about the puppy.
As noted above, “qualified immunity shields government officials performing discretionary
functions from liability insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Jasinski v. Tyler, 729 F.3d
531, 540 (6th Cir. 2013) (internal quotation marks omitted). “This standard requires the courts to
examine the asserted right at a relatively high level of specificity, and on a fact-specific,
case-by-case basis.” O’Malley v. City of Flint, 652 F.3d 662, 668 (6th Cir. 2011) (internal quotation
marks and alterations omitted).
We have never held that an officer who is neither the arresting officer nor the proponent of
the warrant can be liable for false arrest. See, e.g., Voyticky v. Vill. of Timberlake, Ohio, 412 F.3d
669, 677 (6th Cir. 2005) (“A false arrest claim under federal law requires a plaintiff to prove that
the arresting officer lacked probable cause to arrest the plaintiff.” (emphasis added)). In an
unpublished opinion, we assumed without deciding that an officer may be liable for false arrest even
though he “was not the arresting officer and [] the Prosecutor’s Office authorized a warrant” on a
different charge from the one “upon which [he] sought to have [the plaintiff] arrested.” Garcia v.
Thorne, 520 F. App’x 304, 307 (6th Cir. 2013); see also Miller v. Prince George’s Cnty., Md., 475
F.3d 621, 630 (4th Cir. 2007) (finding liability where the defendant made false statements in an
affidavit but did not arrest plaintiff). But that sort of assumption does not amount to a “general
statement[] of the law [] capable of giving clear and fair warning to officers even where the very
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action in question has not previously been held unlawful.” Walker v. Davis, 649 F.3d 502, 504 (6th
Cir. 2011) (internal quotation marks omitted). Established law must “truly compel (not just suggest
or allow or raise a question about), the conclusion for every like-situated, reasonable government
agent that what the defendant is doing violates federal law in the circumstances.” Gragg v. Ky.
Cabinet for Workforce Dev., 289 F.3d 958, 964 (6th Cir. 2002) (internal quotation marks and italics
omitted). Here, no clearly established law compels the conclusion that officers who neither arrested
the plaintiff nor swore false statements in a warrant affidavit can be liable for false arrest. (Schulz’s
alleged facts might be a better fit with a malicious prosecution claim, as “existing cases do indicate
that an officer may be responsible for commencing a criminal proceedings against a plaintiff, where
the officer made, influenced, or participated in the decision to prosecute.” Sykes, 625 F.3d at 311
(internal quotation marks and alteration omitted). But Schulz did not sue Gendregske for malicious
prosecution.) Thus, Gendregske is entitled to qualified immunity on Schulz’s false-arrest claim.
C.
Gendregske also seeks qualified immunity on Schulz’s procedural due process claim.
Schulz’s claim here is that Gendregske violated her due process rights when he put the seized golden
retrievers up for adoption without notifying her. She contends that Gendregske was required to
follow the forfeiture procedures in Michigan’s animal cruelty law before depriving her of her
property interest in the animals. See Mich. Comp. Laws § 750.50(3). But where a state employee
deprives an individual of property through an unauthorized action (rather than established state
procedure), that individual has no due process claim if state remedies are adequate to redress the
procedural due process violation. See Stanley v. Vining, 602 F.3d 767, 769 (6th Cir. 2010) (citing
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Hudson v. Palmer, 468 U.S. 517, 530–36 (1984)). Here, Schulz alleged that Gendregske acted
contrary to state procedure (specifically, Michigan Comp. Law § 750.50(3)), and she does not allege
that state remedies are inadequate (indeed, she brought a state law conversion claim against
Gendregske on this very issue). Gendregske is therefore entitled to qualified immunity on Schulz’s
procedural due process claim.
D.
Finally, the officers seek reversal of the district court’s denial of state-law immunity on
Schulz’s claim that the officers committed conversion when they put her dogs up for adoption. This
claim concerns only Michigan law. We have “jurisdiction over interlocutory appeals concerning
pendent [Michigan] law claims of governmental immunity.” Livermore ex rel. Rohm v. Lubelan,
476 F.3d 397, 408 (6th Cir. 2007).
The district court, however, did not address state-law immunity in its opinion below. We
therefore remand this claim so that the district court may consider this issue in the first instance.
See, e.g., Stoudemire, 705 F.3d at 576.
***
The district court’s January 10, 2013 Order is reversed as to the denial of qualified immunity
on Schulz’s unlawful seizure, false arrest, and procedural due process claims. The case is otherwise
remanded for further proceedings consistent with this opinion.
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