Bishop v. Bosquez, 218 WL 3233147, (D. Wis., 2018)

On July 30, 2013, Sheriff's Officer Humane Officer Peter Bosquez arrived at the property  of Becky Bishop after receiving reports of a malnourished horse. Bosquez observed several horses  appearing to be malnourished and injured, fencing in a state of disrepair, and defects in the barn  enclosure and floor. Following several inspections of the property, veterinary inspection of the

horses, and entry of an abatement order without improvement in the conditions, (described at length in the opinion), a search warrant was served on Ms. Bishop at her residence. During the service of the warrant, various confrontations occurred (also described by the court) resulting in the arrest of
Ms. Bishop and her son, Kevin Bishop. Ultimately, 22 horses were seized and Ms. Bishop pled guilty, on June 30, 2014, to three counts of failing to provide adequate shelter for the horses and was sentenced to two years probation.

Ms. Bishop and her son, Kevin, filed a civil rights action in federal court asserting that various Sheriff's Department officers violated their constitutional rights under federal and state law, by using excessive force during the illegal search and seizure of the horses. They also maintained that Dr. Koltz, a veterinarian, and Dean Nolan, the horses' care giver violated their constitutional rights under federal law and assert various state law claims against them. (The court gives a lengthy description of the conflicting stories regarding the events of the service of the warrant) 

Without resolving the factual disputes concerning the confrontations between the Bishops and the officers the court could not conclude, as a matter of law, that the officers' conduct was objectively reasonable.

Even though the Bishops did not respond to the officers' qualified immunity argument, if the  jury credits the Bishops' version of the facts, the force used by the officers would clearly violate their F ourth Amendment rights. Because the qualified immunity analysis is not sufficiently separable  from the merits of the case, the officers are not entitled to qualified immunity at this time.  Validity of the Search and Seizure:  Although the Bishops assert that officer Bosquez made false statements and failed to follow  proper procedure to obtain the search warrant, they have not presented evidence to substantiate these  claims. Conclusory allegations about the falsification of the search warrant affidavit are insufficient  to establish the validity of the affidavit. Accordingly, the Bishops' challenge to the validity of the  search and seizure fails.

The remaining claims by the Bishops against the officers are wholly unrelated to the  excessive force claims. The court therefore declines to exercise supplemental jurisdiction over these  claims. These state law claims will be dismissed without prejudice so that they may be pursued in 

a state forum.

The Bishops assert claims under federal and state law against Dr. Koltz and We Care Animal  Hospital. To succeed in their federal claims, the Bishops must prove (1) the deprivation of a right  secured under the Constitution or federal law, and (2) that the defendants were acting under the color  of state law. The Bishops must demonstrate that both public and private actors share a common

unconstitutional goal, which the Bishops have not done in this case. 

The Bishops also assert that Dr. Kolts' medical assessment of Ms. Bishop's horses influenced  the officers' decision to seize them. However, the mere furnishing of information by a private party  to a law enforcement official is not sufficient to constitute a joint activity with State officials in  prohibited action or to state a claim against a private party under federal law. Since the Bishops have  not established that Dr. Koltz and the officers conspired to violate the Bishops' constitutional rights  or shared an unconstitutional goal, their federal law claims against Dr. Koltz will be dismissed. The  court will also grant summary judgment in favor of We Care Animal Hospital because it is a private  corporation and cannot be held vicariously liable under federal law by a respondeat superior theory.

The Bishops have also alleged state law claims of veterinary malpractice, perjury, and improper billing against Dr. Koltz and We Care Animal Hospital. Generally, when federal claims drop out of a case, federal court decline to exercise supplemental jurisdiction over state law claims. Accordingly, the Bishops' state law claims against Dr. Koltz and We Care Animal Hospital will be
dismissed without prejudice so that they may be pursued in a state forum.

NOLAN'S MOTION FOR SUMMARY JUDGMENT:
The Bishops have alleged a state law claim of negligence of Nolan, the horses' care giver, which is entirely unrelated to the federal claims asserted against the officers. The court therefore declines to exercise supplemental jurisdiction over this state law claim and it will be dismissed  without prejudice. Nolan's motion for summary judgment will be denied as moot.

The officers' motion for summary judgment is denied with respect to excessive force claims  against Wilz, Studzinski, and Mocadlo but granted with respect to the remaining federal claims.  The motion for summary judgment by Koltz and We Care Animal Hospital is granted as to  the federal claims and such claims are dismissed. The Bishops' state law claims are dismissed  without prejudice.

Nolan's motion for summary judgment are denied as moot.