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Pfeil v. Rogers

March 8, 1985

ROBERT W. PFEIL, SR., AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ROBERT W. PFEIL, JR., PLAINTIFF-APPELLANT,
v.
ROBERT D. ROGERS, FORMER DISTRICT ATTORNEY OF RUSK COUNTY, ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Western District of Wisconsin, No. 82-C-292-C, Barbara B. Crabb, Judge.

Cummings, Chief Judge, Coffey, Circuit Judge, and Wyatt, Senior District Judge.*fn*

Author: Coffey

COFFEY, Circuit Judge

The plaintiff is the father of Robert W. Pfeil, Jr. who was murdered on August 14, 1979. As personal representative of his son's estate, the plaintiff has alleged that the defendants violated his son's rights under the First and Fourth Amendments, the Equal Protection and Due Process Clauses of the United States Constitution, and 42 U.S.C. §§ 1983 and 1985(3) not only in depriving his son of his life but also in the killing of his son's dogs. The district court granted summary judgment for the defendants. We affirm.

At the time of his death, Robert W. Pfeil, Jr. ("Rob") was a 27-year-old student at Mount Senario College in Ladysmith, Wisconsin. Rob lived on his 80-acre wooded tract of land approximately fourteen miles outside Ladysmith, Wisconsin with his three dogs and lion.*fn1 The three dogs were shot by members of the Rusk County Sheriff's Department on June 12 and 13, 1979 while Rob was on an extended vacation with his father. Rob's death some two months thereafter on August 14, 1979 remains an unsolved murder in Rusk County. The plaintiff father instituted this action in the district court for the Western District of Wisconsin almost three years later on April 27, 1982 against Robert D. Rogers, the former District Attorney for Rusk County, Wisconsin; John Ducommun, a Rusk County deputy sheriff; Vern Sanderson, a former Rusk County deputy sheriff; and Rusk County, Wisconsin. The plaintiff in his complaint alleged that Rogers, Ducommun, and Sanderson were enemies of his son because his son at one time had refused to sell drugs for them and thereafter they conspired with an unknown person to kill his son. The complaint further alleged that the defendants entered his son's property without a warrant and killed his son's dogs, causing him anguish and making him vulnerable to attack without the protection of the dogs. A reading of count I of the plaintiff's complaint reflects that it fails to allege a violation of any constitutional or statutory right of the plaintiff or his son. Rather, it recites the plaintiff's version of how and why his son's dogs were killed and demands damages for "the invasion of the personal and civil rights as above set forth and the resulting anguish, mental strain, grief and fear because of the loss of his dogs and the denial of his companionship with them." The plaintiff also sought punitive damages "because of the willful conspiracy of the defendants and the resultant carrying out of the conspiracy by the Rusk County Sheriff's Department and invasion of the personal and civil rights of Robert W. Pfeil, Jr." Count II of the complaint alleges a completed conspiracy to kill his son in violation of his son's rights to equal protection of the laws, due process, and his son's civil rights as guaranteed by 42 U.S.C. §§ 1983 and 1985. Count III of the complaint*fn2 alleges that the conspiracy the defendants participated in violated his son's Fourth Amendment right "to be free and secure from unlawful search" and further alleges that the conspiracy violated the "civil and human life and rights of Robert W. Pfeil, Jr. and the Constitution and Laws" by violating Wisconsin statutes relating to criminal trespass,*fn3 criminal damage to private property,*fn4 and mistreating animals.*fn5 The complaint also alleged that the defendants violated a Wisconsin statute*fn6 "by criminally leaving dead dogs to rot in the heat of the summer sun, which could have caused a plague."

After the parties had engaged in discovery, the defendants filed a motion for summary judgment on May 2, 1983. Relying upon deposition testimony and affidavits, the defendant officers gave the following version of the dogs' deaths: While Rob was on an extended vacation, the dogs' caretaker evidently released them from their pen after Rob left, allowing them to run at large in Josie Creek Park, located adjacent to Rob's property. On June 6, 1979, the dogs were observed by Officer Ducommun near overturned garbage cans in the park and, when Officer Ducommun attempted to right the garbage cans, one of the dogs allegedly attempted to attack him by running at him, growling and barking.*fn7 Officer Ducommun fired a shot near the dog merely to frighten it away. The officer thereafter consulted with District Attorney Rogers about the dogs' running at large and was advised that "if the dogs were vicious and could not be apprehended, then the dogs should be destroyed." Officer Ducommun stated that he went to Rob's residence on June 12, 1979 to capture the dogs. When asked whether he actually attempted to capture the dogs, Ducommun replied that he was afraid to leave his squad car because the dogs were growling and snapping. After radioing for assistance, Ducommun was joined by Officer Sanderson and Joanne Seija, the Chief of Police for Hawkins, Wisconsin.*fn8 According to the depositions, Rusk County did not at that time have a dogcatcher. At Officer Seija's insistence, the officers had the police radio dispatcher contact District Attorney Rogers to confirm his instructions that they should destroy the dogs if the dogs were vicious and they were unable to capture them. The officers killed one Great Dane on Rob's property on June 12th, but made no attempt to properly dispose of the dog's body. The other dogs fled into nearby woods. On the next day Ducommun returned to Rob's property and discovered that the other Great Dane and the mongrel had returned. Ducommun called the dogs but they would not come to him. He radioed for assistance and was joined by Officer Sanderson. Ducommun discovered the Great Dane in its doghouse and shot it while it was in the doghouse. Ducommun shot it twice again as it tried to leave the doghouse and, after waiting about 15 seconds, fired a final round into the animal's head. Sanderson mortally wounded the mongrel as it fled into the woods. And once more the officers did not dispose of the dogs' remains but allowed them to rot and decay in the summer sun. In their motion for summary judgment, the defendants submitted an affidavit reciting that, even though the dogs were required to be licensed by Wisconsin law, they were not licensed. Finally, as to Rob's death, the defendants submitted the affidavit of one William E. Volkman, the Sheriff of Rusk County, Wisconsin, stating that, although there was an on-going investigation of Rob's death, "as of the date of this affidavit, the alleged murderer is presently at large and the enforcement authorities have reported no suspects in the murder."

The plaintiff's response to the summary judgment motion attempted to attack the defendants' legal justification for shooting the dogs by disputing whether the dogs in the park were Rob's dogs, by trying to establish that Rob's dogs were gentle rather than vicious, and establishing that the officers did not attempt to capture the dogs before destroying them.

To support his allegation that the defendants murdered his son, the plaintiff submitted the affidavits of two persons, Gene and Melody Anderson, stating that one Betty Zajec, a neighbor of Rob's, witnessed his murder. According to the affidavits, Zajec said an unknown person shot Rob in the back of the head. Zajec allegedly told the Andersons that immediately after the shot was fired, District Attorney Rogers, and Officers Ducommun, and Sanderson emerged from the bushes from which the killer had exited. The plaintiff also submitted a letter from Thomas Lynn, an inmate in the state prison at Waupun, Wisconsin to Pfeil, Sr. Lynn alleged that one Michael Thompson told him that Sanderson had killed two Great Danes and had offered him $2,000 to kill "someone in northern Wisconsin."

Although the district court had warned the parties that it would not consider any briefs, affidavits, or other documents submitted after the filing of the defendants' reply brief on the motion for summary judgment, the plaintiff, contrary to the court's order, did submit several affidavits and briefs after the filing deadline. An affidavit by Pfeil, Sr., affidavits by Betty Zajec's family members, and affidavits by the Andersons were among the documents filed after the deadline and were submitted in support of a "Motion and Memoranda for Extension of Time to File Affidavits Pursuant to Rules 59(c) and 60(b)." In his affidavit, Pfeil, Sr. stated that "the Affidavits of the [Zajec] family members contains [sic] information that is entirely newly discovered evidence, and of which the plaintiff, until August 10, 1983, had no knowledge thereof." Pfeil, Sr. alleged that on that day he "accidentally ran into a neighbor of said family [the Zajecs] . . . who advised him of the fact that said information was available and where the parties who had said information could be contacted." The affidavits of the Andersons and the family members relate the events surrounding the death of Betty Zajec and state that Betty Zajec was threatened after she witnessed Rob's murder. In response, Mrs. Zajec "became fearful, introverted and withdrawn and . . . was on the verge of mental collapse because of the stress and strain brought on by said experiences." When contacted by the Department of Criminal Investigation on May 15, 1980, Mrs. Zajec was fearful of making a statement about Rob's murder. She asked the investigators to leave the room while she spoke with her family. Mrs. Zajec "became extremely agitated and disoriented and excited, and again told [her daughter] and her sisters, who were there in the kitchen, that everything that she had told them relative to her seeing Robert Pfeil, Jr. murdered and identifying the persons who were present at the scene was true." Mrs. Zajec expressed fear that the murderers would take revenge on her and her family were she to give a statement. She exclaimed, "I'm damned if I do and damned if I don't," stepped into the next room and took her life with a gun.

In granting the motion for summary judgment, the district court made several procedural rulings. The court refused to consider any materials submitted after the filing of the defendants' reply brief "in the interests of expediting my decision on the summary judgment motion." Further, the court refused to consider the affidavits of Gene and Melody Anderson and Robert W. Pfeil, Sr. submitted before the deadline because they were "uncertified." Similarly, the district court refused to consider excerpts of depositions contained in the affidavits because the excerpts were not "certified as complete and authentic transcripts." The court also ordered deleted evidence in the plaintiff's material that "fail[ed] to meet" the requirements of Fed. R. Civ. P. 56(e) that "supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." After the hearsay, legal argument and opinion were deleted from the plaintiff's material, the court found that the plaintiff had established that: (1) on earlier occasions, the dogs had been gentle and kind in the presence of two persons; (2) one person saw the deceased, Rob, give money to an unnamed representative of Rusk County;*fn9 and (3) a professor at Mount Senario College had on one occasion interceded in a verbal argument between District Attorney Rogers and Rob.

The district court accepted the defendants' version of the facts offered with their motion for summary judgment finding, "no concrete evidence of a conspiracy to harm Robert or his dogs in violation of Robert's constitutional rights." The court dismissed the equal protection, due process, and §§ 1983 and 1985 claims dealing with the defendant officers' alleged involvement in Rob's death because "there is simply nothing in the record that indicates that the defendants had anything to do with Robert's death." Moreover, the court granted summary judgment dismissing the plaintiff's claims concerning the destruction of the dogs because "where plaintiff does not submit facts supporting plaintiff's conspiracy claims, and defendants submit sworn affidavits that they acted nonconspiratorially and in good faith, there are not really conflicting inferences to be drawn . . . . [Thus], summary judgment is appropriate."

Further, the court ruled that District Attorney Rogers' act of giving legal advice to the officers in response to their inquiry concerning their authority to destroy Rob's dogs if the dogs were vicious and the officers were unable to capture them was "cloaked with absolute prosecutorial immunity." The court also held that the defendants were entitled to the "defense of qualified immunity for acting in good faith" because "in 1979, Wisconsin law provided that unlicensed dogs were to be impounded, and that sheriff's deputies were authorized to enter the premises of the owner to seize the dogs," Wis. Stat. § 174.10(1) (1974), and further provided that, "any person may kill any dog . . . that may suddenly assault him while he is peacefully walking or riding and while being out of the inclosure of its owner or keeper. . . ." Wis. Stat. § 174.01 (1974)." "Given the size of the dogs, their attacks on Ducommun, and their presence in a public park," the court ruled that the officers' belief in the necessity of destroying the dogs was not "objectively unreasonable." The judge found no "evidence of any sort in the record that lends itself to the inference of a conspiracy to kill the dogs out of malice." Based on this evidence, the court held that the officers had acted in accordance with Wisconsin law and granted summary judgment in favor of the defendants on the issue of whether they acted in good faith when they entered Rob's property to attempt to capture the dogs and in killing the dogs when they were unable to capture them.

This appeal raises five issues: (1) whether the district court abused its discretion when it denied the continuance of the summary judgment proceedings; (2) whether, during a summary judgment proceeding, a district court may disregard materials submitted after its filing deadline; (3) whether an affidavit lacking only a notary seal is improper under Fed. R. Civ. P. 56(e); (4) whether the evidence disregarded by the district court failed to comply with Fed. R. Civ. P. ...


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