Felski v. Necci et al

Filing 151

DECISION AND ORDER signed by Magistrate Judge William E Duffin on 9/27/18 granting 72 defendants Schmidt and Surge's Motion for Summary Judgment; granting 79 defendant Bretl's Motion for Summary Judgment; granting 87 defendants Perry and Wrobel's Motion for Summary Judgment; denying plaintiff's motions to strike 141 142 143 Motion to Strike ; dismissing as moot 148 plaintiff's Motion to Appoint Counsel. Further ordered that this case is dismissed and the Clerk shall enter judgment. (cc: all counsel) (kmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THOMAS G. FELSKI,
Plaintiff,
v.

Case No. 16-CV-1062

DAVID A. BRETL,
CINDY WROBEL,
KRISTEN PERRY,
CHIEF JIM SURGES, and
SGT. PAUL SCHMIDT,
Defendants.

DECISION AND ORDER

Plaintiff Thomas Felski is a Wisconsin state prisoner representing himself. He
filed this case alleging that forty-one defendants violated his rights related to a criminal
investigation and criminal charges that were filed against him stemming from a home
construction contract. The court screened the original complaint, determined that
Felski’s allegations against five of the forty-one defendants implicated his rights under
the Fourth Amendment, dismissed the remaining claims and defendants, and ordered
Felski to file an amended complaint clarifying his claims against the five remaining
defendants. (ECF No. 9 at 24.)

After Felski filed an amended complaint, the court screened it and allowed him
to proceed on the following claims under the Fourth Amendment: (1) a claim against
defendant East Troy Police Department Sergeant Paul Schmidt for allegedly illegally
entering Felski’s residence and seizing his personal items, as well as a claim against
defendant East Troy Police Department Chief Jim Surges for authorizing the alleged
illegal entry; (2) claims against defendant Cindy Wrobel, a humane officer at Lakeland
Animal Welfare Society, Inc. (Lakeland), for allegedly seizing Felski’s dogs and
charging him $4,000 for their return, and against defendants Wrobel and Kristen Perry,
a supervisor at Lakeland, for neutering Felski’s puppy; and (3) a claim against
defendant Walworth County Corporation Counsel David Bretl for failing to prevent
Wrobel’s and Perry’s actions. All defendants have moved for summary judgment. (ECF
Nos. 72, 79, 87.) In addition to responding to the summary judgment motions (ECF No.
127), Felski filed several motions to strike. (ECF Nos. 139, 141, 143, 143.)
The court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because
the matter arises under federal statutes. Venue is proper under 28 U.S.C. § 1391. The
parties have consented to United States magistrate judge jurisdiction pursuant to 28
U.S.C. § 636(c) and General Local Rule 73 (E.D. Wis.).
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a

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matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A.,
Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are those under the applicable
substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248.
A dispute over a “material fact” is “genuine” if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or (B)
showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters
stated.” Fed. R. Civ. P. 56(c)(4).
SURGES’S AND SCHMIDT’S
MOTION FOR SUMMARY JUDGMENT
In his amended complaint Felski alleges that “Defendant, Paul Schmidt of the
East Troy Police Department did illegally enter my private residence and seized two
personal computers, business records, checks, and original contracts without a search
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warrant in violation of the 4th Amendment to the United States Constitution.” (ECF No.
12, ¶ 10.) He further alleges that “Defendant, Jim Surges authorized the illegal entry by
his subordinate, Paul Schmidt, which is [in] violation of the 4th Amendment to the
United States Constitution.” (ECF No. 12, ¶ 14.) In moving for summary judgment,
Chief Surges and Sgt. Schmidt deny that any member of the East Troy Police
Department, including Sgt. Schmidt, entered Felski’s home or removed any items from
it.
A. Relevant Facts
The following facts are taken from Surges’s and Schmidt’s Proposed Findings of
Fact (ECF No. 74) and from Felski’s deposition (ECF Nos. 75-1, 75-2). Felski did not
respond to Surges’s and Schmidt’s facts, as required by the Local Rules. See Civil L.R.
56(b)(2)(B) (E.D. Wis.).1 Thus, the court may consider the defendants’ facts undisputed.
See Civil L.R. 56(b)(4) (E.D. Wis.). Felski filed a joint response to all three motions for
summary judgment. (ECF No. 127.) The response is titled, “Plaintiff’s Response to
Defendants Proposed Findings of Fact,” “Memorandum of Law,” and “Plaintiff’s

Under this court’s Local Rules, “If a party is proceeding pro se in civil litigation and the opposing party
files a motion for summary judgment, counsel for the movant must ”provide the pro se party copies of
the relevant federal and local rules and advise the pro se party that “any factual assertion in the movant’s
affidavit, declaration, or other admissible documentary evidence will be accepted by the Court as being
true unless the party unrepresented by counsel submits the party’s own affidavit, declaration, or other
admissible documentary evidence contradicting the factual assertion.” Civ. L.R. 56(a) (E.D. Wis.). It
appears only Kristen Perry and Cindy Wrobel complied with this rule. (ECF No. 87.) Because Felski
received the required information from Perry and Wrobel, the other defendants’ failure to comply with
the local rule is harmless. Felski was informed of the consequences of failing to respond to the movants'
proposed findings of fact.
1

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Response to Motion for Summary Judgment from David Bretl, James Surges, Paul
Schmidt, Kristen Perry, Cindy Wrobel by their Attorneys.” Because Felski’s response is
sworn, the court will consider any properly supported, relevant, material facts from his
response in resolution of the summary judgment motions. See 28 U.S.C. § 1746.
In 2011 Felski resided at N9144 Ash Street in the town of East Troy, Wisconsin
(the “Ash Street Property”). (ECF No. 74, ¶ 4.) He operated a home repair and
remodeling business. (Id., ¶ 6.) Mary Joan Wienk2 assisted him with the operation of the
business. (Id.) Wienk lived next door to Felski (ECF No. 75-2 at 186-87) and had
unrestricted access to Felski’s house by virtue of having a key and knowing his garage
code (ECF No. 75-2 at 57).
In April 2011 Felski was arrested and confined in the Walworth County Jail. (ECF
No. 74, ¶ 5.) Felski remained incarcerated until November 2011. (ECF No. 75-2 at 217.)
While he was incarcerated, Wienk took care of Felski’s house. (Id. at 134-35.)
As stated above, Felski alleges that (apparently while he was incarcerated) Sgt.
Schmidt illegally entered Felski’s residence and seized two personal computers,
business records, checks and original contracts without a search warrant. (ECF No. 12,
¶ 10.) He further alleges that Chief Surges authorized the illegal entry into Felski’s
residence by Sgt. Schmidt. (Id., ¶ 14.)

Wienk’s name is often spelled “Wenke” in the record (see, e.g., ECF Nos. 73 at 3; 74, ¶ 6; 77, ¶ 5; 80, ¶ 11),
which is how Felski spelled her name at his deposition (ECF No. 75-2 at 2). She is also often referred to as
“Mary Jo” (see, e.g., ECF Nos. 73 at 6; 75-2 at 2; 81 at 3). According to her own affidavit, her name is “Mary
Joan C. Wienk” (ECF No. 134) and thus this is how the court will refer to her.
2

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The East Troy Police Department did during Felski’s incarceration come into
possession of certain property allegedly belonging to him. (ECF No. 74, ¶ 12.) Wienk
provided the laptop computer to Sgt. Schmidt, who in turn gave it to Felski. (Id.) Wienk
also gave the police department a Dell CPU Computer, Dell Computer Keyboard, Dell
Printer, and Balance flat screen monitor allegedly owned by Felski. (Id., ¶ 13.)
Felski was asked at his deposition the basis for his allegation that Sgt. Schmidt
conducted a search of and seized property from Felski’s Ash Street Property. (ECF No.
74, ¶ 11.) Felski could not articulate any factual basis for the allegation. (Id.) The only
basis for his belief that the police searched his house and seized certain items was the
fact that he learned that the items were at the police station. (ECF No. 75-2 at 204-06.)
When asked if he knew how the police came to have possession of the items, Felski
testified, “I don’t know.” (Id. at 222-23.)
Felski was also asked the basis for his allegation that Chief Surges authorized the
alleged illegal entry into the Ash Street Property. (ECF No. 74, ¶ 8.) Felski testified that
he simply assumed that Chief Surges authorized the entry by Sgt. Schmidt. (Id.) Chief
Surges denies that he authorized any member of the East Troy Police Department,
including Sgt. Schmidt, to conduct a search of the Ash Street Property; in fact, he denies
that the East Troy Police Department, including Sgt. Schmidt, conducted a search of or
seized any property from the Ash Street Property. (Id., ¶ 9.)

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B.

Analysis
Felski’s claim against Chief Surges and Sgt. Schmidt is wholly without support.

All Felski can muster is his unfounded assumption that, because the police were in
possession of some items from his home, the police must have unlawfully accessed his
home and seized his property. Felski has absolutely no evidence that Sgt. Schmidt
entered his home or that Chief Surges authorized any search and seizure. The
undisputed evidence is that the police came into possession of certain items from
Felski’s home because they were lawfully given to the police by Wienk.
Because the undisputed evidence demonstrates that Felski’s claim is baseless, the
court will grant Surges’s and Schmidt’s motion for summary judgment.
MOTIONS FOR SUMMARY JUDGMENT BY BRETL, WROBEL AND PERRY
A.

Relevant Facts
The following facts are taken from the Joint Proposed Findings of Fact submitted

by defendants Bretl, Wrobel, and Perry (ECF No. 80), to which Felski did not respond as
required by the Local Rules. See Civil L.R. 56(b)(2)(B) (E.D. Wis.). Thus, the court accepts
the defendants’ facts as undisputed. See Civil L.R. 56(b)(4) (E.D. Wis.). As stated above,
Felski filed a joint response to all three defendants’ motions for summary judgment.
(ECF No. 127.) Because Felski’s response is sworn the court will consider any properly
supported, relevant, material facts from his response in resolution of the summary
judgment motions. See 28 U.S.C. § 1746.

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In 2011 Felski owned six German Shepherd dogs. (ECF No. 80, ¶ 1.) The dogs
were kept in the garage and backyard of Felski’s Ash Street Property. (Id., ¶ 2.) Three of
the dogs were fully-grown and three were still puppies, with two female puppies and
one male puppy. (Id., ¶ 3.)
In August 2011 Felski was arrested and taken to into custody at the Walworth
County Jail (“Jail”), where he remained until he was released in November 2011. (ECF
No. 80, ¶¶ 5-6.) A few days after he was arrested, Felski was granted “work-release
privileges” and allowed to leave the Jail in order to work at a remodeling/remediation
business he owned and operated at the time. (Id., ¶ 7.) While out of jail on work-release,
Felski was able to feed and take care of the dogs. (Id., ¶ 8.)
In September 2011 Felski’s work-release privileges were revoked after he failed a
breathalyzer test after returning to the jail from work-release. (ECF No. 80, ¶ 9.) Because
he was no longer allowed to leave the jail, he was not able to feed or take care of the
dogs. (Id., ¶ 10.)
While Felski was incarcerated, Wienk stayed at the Ash Street Property to “take
care of the house.” (ECF No. 80, ¶ 11.) Wienk had a key to Felski’s house, knew the
access code to the garage door, and had unrestricted access to the Ash Street Property.
(Id., ¶ 12.) After Felski’s work-release privileges were revoked, Wienk agreed to become
the primary caretaker for Felski’s dogs. (ECF No. 80, ¶ 15.)

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Shortly after Wienk agreed to be responsible for feeding and taking care of the
dogs, one of the male dogs knocked her down while she was trying to move him from
the kennel to the fenced-in yard for exercise. (ECF No. 80, ¶ 16.) Wienk eventually
decided that she no longer wanted to care for the dogs. (Id., ¶ 17.) On September 5, 2011,
and again on September 10, 2011, Wienk told Felski over the jail’s recorded phone line
that she planned on contacting the humane society to take the dogs because she no
longer wanted to feed or take care of them. (Id., ¶ 18.)
On September 21, 2011, Wienk called Lakeland. (ECF No. 80, ¶ 19.) During the
call, Wienk spoke with Lakeland employee defendant Cindy Wrobel and told her that
she was Felski’s girlfriend and had assumed responsibility for feeding and taking care
of the dogs. (Id., ¶ 20.) Wienk described the dogs as being kept in kennels in the garage
of the Ash Street Property and submitted a complaint of animal neglect/cruelty. (Id.)
Wienk told Wrobel that Felski was unable to feed or take care of the dogs because he
was incarcerated at the jail. (Id., ¶ 21.) Wienk also told Wrobel that she was no longer
willing to continue purchasing food for the dogs or willing to continue feeding and
taking care of the dogs. (Id., ¶ 22.) Wienk told Wrobel that one of the male dogs
knocked her down while she was trying to move him from the kennel to the fenced in
yard for exercise. (Id., ¶ 23.)
After the call Wrobel took two bags of dog food from Lakeland to the Ash Street
Property so the dogs could be fed and so Wrobel could perform a wellness check on the

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dogs. (ECF No. 80, ¶ 24.) When Wrobel arrived at the Ash Street Property, Wienk was
standing outside of the open garage. (Id., ¶ 25.) Wrobel could see the that the dogs were
malnourished and emaciated. (Id.) Wrobel determined that alternate arrangements were
needed for the care and custody of the dogs. (Id.)
In late September 2011 Wrobel contacted the jail and spoke with Felski to discuss
arrangements for the care and custody of the dogs. (ECF No. 80, ¶ 28.) Wrobel informed
Felski that Wienk had contacted Lakeland and had submitted a complaint of animal
neglect/cruelty. (Id., ¶ 29.) Wrobel told Felski that Wienk was no longer willing to
continue feeding or taking care of the dogs. (Id., ¶ 30.) Felski gave Wrobel the phone
numbers of various friends and family members whom he believed would be willing to
feed and take care of the dogs. (Id., ¶ 31.) Wrobel attempted to contact the individuals
identified by Felski (Id., ¶ 32) but was unable to find anyone to assume responsibility
for feeding and taking care of the dogs. (Id., ¶ 33.)
According to the defendants, because no one was willing to take care of the dogs,
Felski consented to Wrobel taking possession of the dogs for their own well-being. (ECF
No. 80, ¶ 34.) Felski gave Wrobel the access code to the Ash Street Property garage door
so that she could get the dogs. (Id., ¶ 35.) Felski denies giving Wrobel permission to take
the dogs from the Ash Street property. (ECF No. 127 at 9.)
On October 5, 2011, Wrobel went to the Ash Street Property to pick up the dogs.
(ECF No. 80, ¶ 37.) When she arrived, Wienk was again standing outside of the open

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garage. (Id., ¶ 39.) Wrobel could see the six dogs, whose appearance confirmed the need
to take them. (Id., ¶ 40.)
Before entering the garage, Wrobel spoke with Wienk. (ECF No. 80, ¶ 41.) Wienk
confirmed that she was no longer willing to purchase food for the dogs or feed and take
care of them. (Id., ¶ 42.) Wienk gave Wrobel consent to enter the garage and take the
dogs. (Id., ¶ 43.) Wrobel took the dogs back to Lakeland. (Id., ¶ 44.)
The following day, October 6, 2011, Wrobel called Felski at the jail to notify him
that she had transported the dogs to Lakeland and that the dogs were being kept there.
(ECF No. 80, ¶¶ 47-48.) Wrobel explained to Felski that Lakeland would return the
dogs to Felski if he or someone on his behalf could take care of them and if Felski or
someone on his behalf paid all applicable fees associated with the custody, care, and
treatment of the dogs. (Id., ¶ 49.) No one claimed the dogs between October 6, 2011, and
October 27, 2011. (Id., ¶ 50.)
On October 27, 2011, Lakeland sent Felski a “7-Day Written Notice,” which Felski
admits having received and read. (ECF No. 80, ¶ 51.) The written notice stated, among
other things, that the dogs were still being kept at Lakeland, that the fees associated
with their custody, care and treatment were continuing to accrue, and that Felski had “7
days from the date of this letter to come to [Lakeland] and pay ALL fees associated with
the cost of custody, care and treatment which … will continue to increase daily…[.]’”
(Id., ¶ 52.) The written notice stated that “at the end of the 7-day period … the dogs will

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be considered unclaimed and become the sole property of [Lakeland].” (Id., ¶ 54.) The
notice explained that Felski “may file for return [of the dogs] by following Wis. State
Statute § 173.32(1) Petition (Review of seizure or withholding) which states that a
person claiming that an animal that he or she owns was improperly taken into custody
under 173.13(8) (a violation of 951) or is wrongfully withheld under 173.21(1), you may
seek return of the animal(s) by petitioning for an order from the circuit court of
Walworth County….” (Id., ¶ 53.)
Around the time Felski received the written notice, he retained attorneys Paul
Volbrecht and Chris Kuehn as legal counsel to assist him in seeking return of the dogs.
(ECF No. 80, ¶ 55.) All further correspondence from Lakeland to Felski was sent to
Felski’s attorneys. (Id., ¶ 56.) Neither Felski nor anyone on his behalf paid the fees
associated with the care and custody of the dogs or went to Lakeland to reclaim the
dogs within the specified seven-day period. (Id., ¶ 57.) Nor was Lakeland ever notified
of a petition for return of the dogs having been filed. (Id., ¶ 59.)
Felski states that he filed a “petition” with a court objecting to the seizure of his
dogs. (See ECF No. 127-1 at 2-3.) He states that the Clerk of Court deemed his situation a
civil matter and returned the petition to him. (ECF No. 127 at 12.)
On November 9, 2011, Lakeland sent Felski’s attorneys a letter stating, in part,
that “[s]ince there has been a failure to file by the specified 7-day (Wis. Stat. 173.19) time
period as was stated in the [October 27th] letter, sole custody of the 6 German

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Shepherds now belongs to [Lakeland], Wis. Stat. 173.23(1m) Unclaimed Animals.” (ECF
No. 80, ¶ 60; ECF No. 85-1 at 25.) Felski disputes that Lakeland sent the November 9,
2011 letter to his attorneys. (ECF No. 127 at 12.)
The dogs were kept at Lakeland from October 5, 2011, until November 16, 2011.
(ECF No. 80, ¶ 61.) During that time, Lakeland provided the dogs with necessary
medical exams, vaccinations, and immunizations. (Id., ¶ 62.) Lakeland neutered the
male puppy on November 15, 2011, in anticipation of an adoption and pursuant to
Lakeland’s policies and procedures. (Id., ¶ 63.) The custody and care provided to the
dogs was prescribed by Lakeland’s policies and cost $4,000. (Id., ¶ 64.) On November 16,
2011, Felski paid $4,000 to Lakeland for the care of the dogs, and the dogs were returned
to him. (Id. ¶ 65.)
Defendant Dave Bretl served as the Walworth County Corporation Counsel
during all of the events at issue in this lawsuit. (ECF No. 80, ¶ 66.) Bretl was not, and
has never been, employed by Lakeland. (Id., ¶ 67.) Felski has never spoken or e-mailed
with Bretl. (Id., ¶ 68.) Bretl did not participate in any of the events relating to the entry
onto Felski’s residential premises, the seizure of the dogs, the custody and care of the
dogs, or the neutering of the male puppy. (Id., ¶¶ 69-71.)
Before Bretl was served with a copy of the Summons and Complaint in this case,
he was unaware that Lakeland had received an animal cruelty/neglect complaint from
Wienk, that Wienk was not willing to continue feeding or taking care of the dogs, that

13

Wrobel attempted, but was unable, to locate anyone to feed and take care of the dogs,
that Wrobel planned to enter and/or entered the Ash Street Property on October 5, 2011,
that the dogs were seized, that Lakeland kept the dogs in its possession from October 5,
2011 until November 16, 2011, that Lakeland provided the dogs with medical exams,
vaccinations and immunizations, that Lakeland neutered the male puppy on November
15, 2011, or that Lakeland charged and received $4,000 for the custody and care of the
dogs. (ECF No. 80, ¶¶ 72-81.) Bretl did not have the authority to control Lakeland’s
actions or to prevent the foregoing conduct or events from occurring. (Id., ¶ 82.)
As for defendant Kristen Perry, an employee of Lakeland, Felski has no
information indicating that Perry had anything to do with Wrobel picking up the dogs.
(ECF No. 80, ¶ 84.) Nor does Felski have any information that Perry directed staff to
neuter the male puppy. (Id., ¶ 85.) Although Felski interacted with Perry when he paid
the $4,000 to obtain the return of the dogs and found her to be “informed,” he does not
know if she ordered any action which would form a basis for the case against her. (Id.,
¶ 86.)
B.

Analysis
1.

Bretl

In an attempt to support his claim against Bretl, Felski argues that, “[a]s an
apparently qualified attorney, as he does hold the position of Corporation Counsel for
Walworth County, we can presume [Bretl] would have familiarized himself with the

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details of the case.” (ECF No. 127 at 12.) Felski also references an October 8, 2011 letter
which discusses the fees associated with the care and custody of the dogs by Lakeland.
Based on the fact that Walworth County Assistant Corporation Counsel Michael Cotter
was copied on the letter, Felski contends that “we have to presume that Corporation
Counsel Bretl, as head of the Corporate Counsel’s Office, was made aware of this.” (Id.
at 13.)
Felski has failed to present any evidence that Bretl was involved in or was even
aware of the events related to the seizure of the dogs or the subsequent neutering of
one. Nor is there any evidence to find that Bretl had the authority or ability to prevent
the complained-of conduct. Consequently, Felski’s claims against Bretl fail. See Burks v.
Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009) (“public employees are responsible for
their own misdeeds but not for anyone else’s”); Hildebrandt v. Ill. Dep’t of Natural
Resources, 347 F.3d 1014, 1039 (7th Cir. 2003) (“For a defendant to be liable under § 1983,
he or she must have participated directly in the constitutional violation.”); Gentry v.
Duckworth, 65 F.3d 555, 561 (7th Cir. 1995) (“To recover damages under § 1983, a
plaintiff must establish that a defendant was personally responsible for the deprivation
of a constitutional right.”).
But even if Bretl was aware of the seizure of the dogs and related events, as
discussed below these events were wholly lawful, and thus no basis could plausibly

15

exist for a claim against Bretl. The court will therefore grant defendant Bretl’s motion
for summary judgment.
2.

Perry and Wrobel

Felski’s claims against Perry and Wrobel are also without merit. Felski
acknowledges that Wienk agreed to care for the dogs and had access to the garage in
order to do so. (ECF No. 127 at 4.) It is undisputed that Wienk consented to Wrobel
taking possession of the dogs. (ECF No. 80, ¶ 43.) Although Felski argues Wienk no
longer was authorized to enter the garage after she told Felski she no longer wanted to
care for the dogs (ECF No. 127 at 5), even if true that does not support a claim against
Perry or Wrobel.
Wrobel’s actions were lawful if Wienk had the apparent authority to consent to
Wrobel entering the garage and taking custody of the dogs. See United States v. James,
571 F.3d 707, 713 (7th Cir. 2009). “Under the apparent authority type of third-party
consent, the government must show that a reasonable person, with the same knowledge
of the situation as that possessed by the government agent to whom consent was given,
would reasonably believe that the third party had authority over the area to be
searched.” United States v. Basinski, 226 F.3d 829, 834 (7th Cir. 2000) (citing Illinois v.
Rodriguez, 497 U.S. 177, 188 (1990); United States v. Chaidez, 919 F.2d 1193, 1201 (7th Cir.
1990)); see also United States v. Ryerson, 545 F.3d 483, 489 (7th Cir. 2008) (“Such authority
exists when the facts available to an officer at the time of a search would allow a person

16

of reasonable caution to believe that the consenting party had authority over the
premises.”); United States v. Pineda-Buenaventura, 622 F.3d 761, 777 (7th Cir. 2010) (“An
officer can conduct a search when the facts available at the time ‘warrant a man of
reasonable caution in the belief that the consenting party had authority over the
premises.’” (quoting Rodriguez, 497 U.S. at 188)). “An officer has ‘a duty to inquire
further as to a third party’s authority to consent to a search, if the surrounding
circumstances make that person’s authority questionable.” United States v. Alexander,
573 F.3d 465, 474 (7th Cir. 2009) (quoting United States v. Goins, 437 F.3d 644, 648 (7th
Cir. 2006)).
The undisputed facts establish that Wienk had apparent authority over the
garage and the dogs. Wienk told Wrobel she was Felski’s girlfriend and she had been
caring for and feeding the dogs held in kennels in Felski’s garage while he was in jail.
(ECF No. 80, ¶¶ 20-21.) When Wrobel first went to the property, she met with Wienk,
who was standing outside the open garage. (ECF No. 80, ¶ 25.) Wienk again was
standing outside the open garage when Wrobel returned to the property days later.
(ECF No. 80, ¶ 39.) Any reasonable person in Wrobel’s position would have believed
Wienk had the authority to consent to Wrobel entering the garage and taking
possession of the dogs. See United States v. Rodriguez, 888 F.2d 519, 523 (7th Cir. 1989)
(possession of key gave apparent authority to consent to search); see also PinedaBuenaventura, 622 F.3d at 777; Ryerson, 545 F.3d at 489.

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Not only was Wrobel authorized to seize the dogs pursuant to Wienk’s consent,
but Wisconsin state law separately provided Wrobel with the authority to seize the
dogs if she had “reasonable grounds” to believe they were abandoned or if they were
“unwanted animal[s] delivered to the humane officer….” See Wis. Stat. § 173.13(1)(a)1.
The reasonable grounds standard is equivalent to a probable cause standard under the
Fourth Amendment. See Cooper v. Pionke, 2015 WL 1781721, at *5 (W.D. Wis. April 20,
2015) (citing Mahne v. Garrigan, 428 F. App’x 630, 633 (7th Cir. 2011)). Probable cause
exists if the facts and circumstances available would justify a reasonable person
believing that the dogs had been abandoned or were unwanted. See id.
Wienk told Wrobel that the dogs’ owner was in jail and that, although she had
been caring for the dogs, she was unwilling to continue to do so. This readily establishes
reasonable grounds to believe the dogs were abandoned or unwanted.
Consistent with Wisconsin law, Felski had seven days in which to pick up the
dogs and pay all fees associated with the dogs’ custody, care, vaccination, and
treatment. See Wis. Stat. §§ 173.19, 173.23(1m). Lakeland sent Felski a letter on October
27, 2011, informing him of his obligation to retrieve the dogs and that, if he failed to do
so within seven days, the dogs would become the property of Lakeland. (ECF No. 80,
¶¶ 51-54.) On November 15, 2011, Lakeland neutered one of the dogs. (ECF No. 80,
¶ 63.) Doing so was wholly lawful. By that time, under Wisconsin law and as a result of
Felski failing to retrieve the dogs and pay the expenses associated with their care, the

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dogs had become the property of Lakeland for it to dispose of as it saw fit. See Wis. Stat.
§ 173.23(1m).
Thus, defendants Wrobel and Perry are entitled to summary judgment. Perry is
also entitled to judgment because, as a supervisor at Lakeland, she has not been shown
to have had any personal involvement in the search of the garage, the seizure of the
dogs, or their care. See Hildebrandt, 347 F.3d at 1039.
PLAINTIFF’S REMAINING MOTIONS
Felski has filed four letters in which he contends that the court should not admit
“new evidence” the defendants submitted along with their summary judgment reply
briefs. (ECF Nos. 139, 141, 142, 143.) All four letters are identical, save for the addition of
the following sentence in the last three letters: “If the court would prefer that I file a
motion to exclude this late evidence, [please] [a]dvise.” In the letters Felski asks that the
court not consider evidence submitted by the defendants in reply that he characterizes
as “newly entered evidence consisting of answers to Interrogatories and the Production
of documents” and which he states is being “entered past the deadline of discovery.”
The court understands Felski to be objecting to the following, which the defendants
submitted in conjunction with their reply briefs:
o Supplemental affidavit of Attorney Robert F. Johnson, attached to which
are James Surges and Paul Schmidt’s Responses to Plaintiff’s First Request
for Production of Documents; James Surges’s Answers to Plaintiff’s First
Set of Interrogatories; and Paul Schmidt’s Answers to Plaintiff’s First Set of
Interrogatories. (ECF No. 129.)

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o Supplemental affidavit of Paul Schmidt, in which he avers a Walworth
County Sheriff’s Department captain provided him with certain
documents on September 21, 2011. This was Schmidt’s first contract with
the captain regarding Felski. Also attached to the affidavit “is a copy of a
Town of East Troy Police Department Day Book Entry for October 6, 2011
with attached letter prepared by Cindy Wrobel of the Lakeland Animal
Welfare Society, Inc. relative to the removal of Mr. Felski’s dogs by her on
October 5, 2011. (ECF No. 130.)
o Affidavit of Mary Joan C. Wienk wherein she avers she was Felski’s
girlfriend in 2011; she helped take care of his business and home while he
was incarcerated in August and September of 2011; she had a key to the
home and the access code to the garage; she decided she could no longer
care for the dogs; she called Lakeland and said she would no longer care
for the dogs and could not find anyone else to do so; and she asked
Wrobel to take the dogs and gave her permission to enter the garage to do
so. (ECF No. 134.)
o Affidavit of Attorney Colin J. Casper, to which he attaches the “Contract
Agreement for Walworth County Animal Control Services between the
LAWS and Walworth County.” (ECF Nos. 137, 137-1.)

A movant cannot present for the first time in reply an affidavit that raises new
issues or arguments as to the nonmovant’s claims. See RBS Citizens, N.A. v. Akhtar
Ramzanali, No. 09 C 05248, 2011 U.S. Dist. LEXIS 70034, at *4 (N.D. Ill. June 29, 2011); see
also Hutchins v. Clarke, No. 07-C-0526, 2009 U.S. Dist. LEXIS 140334, at *20 (E.D. Wis. Jan.
16, 2009) (“a reply affidavit filed as part of a summary judgment reply may not raise
new evidence or advance new factual propositions”). But “[t]here is no blanket
prohibition from filing additional affidavits when a movant for summary judgment files
a reply brief following a nonmovant's response.” Balderston v. Fairbanks Morse Engine
Div. of Coltec Indus., 328 F.3d 309, 318 (7th Cir. 2003) (citing Egger v. Phillips, 710 F.2d
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292, 295 (7th Cir. 1983)). A movant may offer additional affidavits in reply if it is to, for
example, rectify an evidentiary deficiency with respect to previously proffered evidence
or provide further foundational support for the movant’s statement of material facts. See
RBS Citizens, N.A. v. Akhtar Ramzanali, No. 09 C 05248, 2011 U.S. Dist. LEXIS 70034, at *4
(N.D. Ill. June 29, 2011). Thus, “where the reply affidavit merely responds to matters
placed in issue by the opposition brief and does not spring upon the opposing party
new reasons for the entry of summary judgment, reply papers - both briefs and
affidavits - may properly address those issues.” Catley v. Graphic Communs. Int'l Union,
Local 277-M, 982 F. Supp. 1332, 1335 (E.D. Wis. 1997) (quoting Baugh v. City of Milwaukee,
823 F. Supp. 1452, 1457 (E.D. Wis. 1993)).
The affidavits and additional documents submitted by the defendants in reply
were each offered in direct response to matters placed in issue by Felski in his response
and do not spring upon him any new basis for the defendants’ motions. Accordingly,
the court concludes each was properly submitted. Therefore, it will deny Felski’s
motions to strike. But ultimately this issue is immaterial because none of this
supplemental evidence factored into the court’s decision.
Finally, following the completion of all briefing Felski filed a “Motion for
Appointment of Counsel.” (ECF No. 148.) Having concluded that Felski’s claims are
wholly without merit and that the defendants are entitled to summary judgment, this
motion is moot.

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IT IS THEREFORE ORDERED that defendants Schmidt and Surges’s motion for
summary judgment (ECF No. 72) is GRANTED.
IT IS FURTHER ORDERED that defendant Bretl’s motion for summary
judgment (ECF No. 79) is GRANTED.
IT IS FURTHER ORDERED that defendants Perry and Wrobel’s motion for
summary judgment (ECF No. 87) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s motions to strike (ECF Nos. 139,
141, 142, 143) are DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion to appoint counsel (ECF
No. 148) is DISMISSED AS MOOT.
IT IS FURTHER ORDERED that this case is DISMISSED and the Clerk of
Court shall enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 27th day of September, 2018.

WILLIAM E. DUFFIN
U.S. Magistrate Judge

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