Westmore, Patricia et al v. Hyde, David et al

Filing 165

Transmission of Notice of Appeal, Order and Docket Sheet to Seventh Circuit Court of Appeals re: 163 Notice of Appeal, (Attachments: # 1 Order, # 2 Docket Sheet) (lak)

United States District Court for
the 7th
District of
Western district of Wisconsin
File Number 14-cv-861-wmc
PATRICIA A
WESTMORE and
DWIGHT R.
WESTMORE, Plaintiff

Notice of Appeal

v.
DAVID HYDE, CALLAE
K. HYDE, SHERIFF
MICHAEL BRENNAN,
DEPUTY TERRI L.
PROVOST, and
ASHLAND COUNTY,
WISCONSIN, Defendant

Notice is hereby given that PATRICIA A WESTMORE and
DWIGHT R. WESTMORE, Plaintiff
v.
DAVID HYDE, CALLAE K. HYDE, SHERIFF
MICHAEL BRENNAN, DEPUTY TERRI L. PROVOST, and
ASHLAND COUNTY, WISCONSIN, Defendants in the above
named case, hereby appeal to the United States Court of Appeals
for the 7th Circuit ORDER
IT IS ORDERED that:
1) Plaintiffs’ motion to alter or amend final judgment or for a
new trial (dkt. #154) is DENIED.
2) Plaintiffs’ motion to stay execution of the judgment (dkt.
#151) is DENIED as moot.
3) Defendants’ Bill of Costs (dkt. #148) is GRANTED in the
amount of $4,666.16.
Entered this 21st day of September, 2017.
BY THE COURT:
/s/


See Rule 3(c) for permissible ways of identifying appellants.

_______________________
WILLIAM M. CONLEY
District Judge
Appealing on:
I. Lack of Authority and No Warrent
There was a complete lack of authority of the husband David
Hyde to act in any official capacity in the search or seizure,
regardless of the oral approval of his wife who was the Humane
Officer for Ashland County and traveling out of the State of
Wisconsin for several weeks. David Hyde was not licensed by the
State of Wisconsin, and not hired as a Humane Officer by Ashland
County. When asked for a warrant Terri Provost, Ashland County
Sheriff Deputy stated that they did not need one. Deputy Provost
had never read the Chapter 173 until after the search and seizure
and was only present to keep the peace.

Due Process:
I. No prior due process was allowed for any of the 4 seized horses
or the euthanization of Mammoth Donkey, Jethro.
From an order:
II. Due Process
Plaintiffs also move for reconsideration of the court’s grant of
summary judgment on their claim that defendants denied them
due process before seizing and euthanizing their donkey. As
already explained, a party “must clearly establish either a
manifest error of law or fact or present newly discovered
evidence” to prevail on a Rule 59(e) motion.5
LB Credit Corp. v. Resolution Tr. Corp., 49 F.3d 1263, 1267
(7th Cir. 1995) (citation omitted). Furthermore, the Seventh
Circuit has made clear that Rule 59(e) motions “are not
appropriately used to advance arguments or theories that could
and should have been made before the district court rendered
a judgment, or to present evidence that was available earlier.”
Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th Cir.
2012)
(internal quotation mark and citation omitted).
Plaintiffs’ motion identifies no arguments or facts that the court
overlooked on summary judgment, nor any newly-discovered
evidence that could not have been presented at summary
judgment. Instead, the motion is comprised entirely of
arguments that plaintiff failed to make at summary judgment,
and although plaintiffs cite trial testimony from the two
veterinarians who recommended euthanasia of their donkey as

“new evidence,” any new facts regarding the circumstances of
the seizure and euthanasia of plaintiffs’ donkey that are
arguably contained in their testimony: (1) could have been
presented at summary judgment, (2) were not in dispute at
summary judgment, and (3) were viewed in the light most
favorable to plaintiffs at summary judgment.
Even if the court were to consider the veterinarians’ trial
testimony and plaintiffs’ belated arguments, they would still fail
to establish that plaintiffs were entitled to some additional, predeprivation process. Put differently, the law does not clearly
establish 5 Plaintiffs purport to move for a “new trial” on their due
process claim under Rule 59(a), but that
rule does not provide an avenue to challenge the court’s summary
judgment decision. See Goldberg
v. 401 N. Wabash Venture LLC, No 09 C 6455, 2013 WL 4506004, at
*24 (N.D. Ill. Aug. 23,
2013) (“Rule 59(a) is not the appropriate mechanism for addressing a
summary judgment
ruling.”) (collecting cases). Regardless, plaintiffs’ Rule 59(e) motion
was filed timely after entry
of final judgment, and so the court will consider their arguments under
that standard.

Case: 3:14-cv-00861-wmc Document #: 162 Filed: 09/21/17
Page 12 of 13
13
plaintiffs’ entitlement to something more than a
contemporaneous opportunity to object
to the independent veterinarians’ expert recommendations for
euthanasia because an animal is unduly suffering from a
condition that cannot be addressed by medical
intervention. (See Summ. J. Op. (dkt. #93) 25-27.) Regardless,
since there was no evidence that two, independent
veterinarians made anything but the humane choice, the
named defendants were at least entitled to qualified immunity
in relying on the consensus medical judgment of two qualified
veterinarians. Thus, having failed to demonstrate that
reconsideration is appropriate, plaintiffs’ Rule 59(e) motion
must also be denied.
ORDER
IT IS ORDERED that:
1) Plaintiffs’ motion to alter or amend final judgment or for a
new trial (dkt. #154) is DENIED.
2) Plaintiffs’ motion to stay execution of the judgment (dkt.
#151) is DENIED as moot.
3) Defendants’ Bill of Costs (dkt. #148) is GRANTED in the
amount of $4,666.16.
Entered this 21st day of September, 2017.
BY THE entered in this action on the 2nd day of October, 2017.

Plaintiffs: **Additional Information: Jethro, a Mammoth
Donkey considered an endangered breed, was seen by
Veterinarian Alena Baum on December 20th, 2013 along with
her Vet Technician husband, and prescribed medication of
Uniprim an Antibiotic through the 28th of December 2013 for a
diagnosis of frostbite. The Uniprim was started on December
21st due to Penicillin being administered on the 20th. The
Penicillin was to guard against Pneumonia which could set in if
not on medication. He was put down before he completed his
prescribed medication by two outside vets with Dr. Baum never
contacted. He was not dangerous.
There is a precedent set in the above decision: One vet
can treat a patient and the county can come in with two vets
with a different opinion and put down one’s animal against the
owner’s wishes without ever contacting the vet treating the
patient. This animal was not dangerous, simply suffering from
frostbite. He walked two days previous to being put down for
two hours eating his hay. He was in recovery.
The government should only be involved in euthanizing your
pet if they are dangerous. There was no hearing. There was
plenty of time to get a warrant and time for a hearing. Neither
occurred.
Exhibit A:

In Summary:
David Hyde was not certified by the state or hired by Ashland
County as Humane Officer, so had no official capacity to carry out
the warrantless seizure and search. Deputy Provost was only
present to keep the peace, she had never read Chapter 173. No
pre-deprivation of property occurred. The search occurred within
the curtilage of the property. The treating vet for Jethro was never
contacted. The government should not be involved in euthanizing

an animal who is not dangerous and is being treated by a
veterinarian. The bill of costs for Ashland County should be
denied and compensation for Jethro and damage to our reputation
should be awarded along with all our attorney’s fees and years of
seeking justice and pain and suffering over the loss and seizure.
According to:
Constitution of United States of America 1789 (rev. 1992)
Amendment IV

The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized.

(s) Patricia A Westmore, Plaintiff, Attorney for the Plaintiffs
Address: 17698 Griffith Rd. Butternut, WI 54514
Email: [e-mail]
Please note: Our Attorney Glenn Stoddard died of
Non-Hodgkin’s Lymphoma in June of 2017 before the Order was
denied.