UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ERICA MORENO, and KATTI 

PUTMAN, 

Plaintiffs,

Case No. 14-cv-13829

Honorable Gershwin A. Drain 

v. 

RONALD HUGHES, 

Defendant. 

____________________________/

OPINION AND ORDER DENYING DEFENDANT’S MOTION IN LIMINE

[#12]

I. INTRODUCTION

This 42 U.S.C. § 1983 action arises from the shooting of Plaintiffs’ dog by

Defendant Ronald Hughes, a Michigan Department of Corrections Absconder

Recovery Unit Investigator. On September 8, 2015, Defendant filed a Motion in

Limine seeking an order from this Court ruling that Plaintiffs, Erica Moreno and Katti

Putman, are not entitled to noneconomic losses for the pain and suffering they

sustained as a result of Defendant shooting their dog. Plaintiffs filed a Response in

Opposition on September 22, 2015. The Court held a hearing on December 16, 2015.

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At the hearing, the Court directed the parties to submit supplemental authority

concerning whether § 1983 entitles the Plaintiffs to recover emotional distress and

mental anguish damages if they establish a cause of action against Defendant Hughes

for the unlawful seizure of their dog. Upon review of the supplemental authority

provided by both parties, the Court finds that Plaintiffs are entitled to recover

noneconomic losses under § 1983 if they can prove Defendant Hughes violated the

Fourth Amendment. 

II. BACKGROUND

On June 18, 2014, Defendant and other officers arrived at Plaintiffs’ residence

in Flint, Michigan, to execute a warrant for a fugitive named Matthew Mitchell.

Mitchell does not reside, and has never resided at Plaintiffs’ home, rather Mitchell

lives next door. When Defendant entered Plaintiffs’ back yard, Plaintiffs’58-pound

dog, Clohe, was proceeding into the back yard through the open door of the house.

Defendant shot Clohe in the face. Clohe lost a portion of her tongue, a tooth and

endured three surgeries to repair damage suffered as a result. Defendant claims he

shot Clohe in self defense. Plaintiffs maintain that Defendant shot Clohe for no reason

III. LAW & ANALYSIS 

Defendant argues that the proper measure of damages for Plaintiffs’ § 1983

claim are those damages allowed under Michigan law for damage to personal

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property, specifically the difference between the value of Plaintiffs’ dog prior to the

incident on June 18, 2014, and the value of the dog after the incident. See Koester v.

VCA Animal Hosp., 244 Mich. App. 173, 176; 624 N.W.2d 209 (2000) (declining to

award emotional damages when a pet is negligently injured by a veterinarian because

Michigan law precludes “damages for emotional injuries suffered as a consequence

of property damage.”); see also Guzowksi v. Detroit Racing Ass’n, Inc., 130 Mich.

App. 322, 328; 343 N.W.2d 536 (1983) (proper measure of damages “is the difference

in the market value of the horse after it was injured from its preinjury market value.”).

There is no provision in 42 U.S.C. § 1983 that addresses the damages

recoverable by a litigant who establishes liability under the Act. Title 42 U.S.C. §

1988 states that:

(a) Applicability of statutory and common law. The jurisdiction in civil

. . . matters conferred on the district and circuit courts . . . for the

protection of all persons in the United States in their civil rights, and for

their vindication, shall be exercised and enforced in conformity with the

laws of the United States, so far as such laws are suitable to carry the

same into effect; but in all cases where they are not adapted to the object,

or are deficient in the provisions necessary to furnish suitable remedies

and punish offenses against law, the common law, as modified and

changed by the constitution and statutes of the State wherein the court

having jurisdiction of such civil . . . cause is held, so far as the same is

not inconsistent with the Constitution and laws of the United States, shall

be extended to and govern the said courts in the trial and disposition of

the cause[.]

42 U.S.C. § 1988(a). Thus, contrary to Defendant’s argument, federal, not state,

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common law governs the determination of damages in § 1983 actions. McHugh v.

Olympia Entm’t, Inc., 37 F. App’x 730, 736 n.5 (6th Cir. May 28, 2002); Erwin v. Cty.

of Manitowoc, 872 F.2d 1292, 1299 (7th Cir. 1989). While § 1988 allows district

courts to look to state common law to assist in civil rights actions, its use cannot be

a hindrance to the vindication of civil rights. McHugh, 37 F. App’x at 736 n.5;

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 241 (1969) (explaining that the

language of § 1988 means “both federal and state rules on damages may be utilized,

whichever better serves the policies expressed in the federal statutes. The rule of

damages, whether drawn from federal or state sources, is a federal rule responsive to

the need whenever a federal right is impaired.”). 

It is beyond dispute that “compensatory damages under § 1983 may include

noneconomic injuries such as embarrassment, humiliation, or loss of reputation.”

Ellison v. Balinksi, 625 F.3d 953, 959 (6th Cir. 2010); Glasson v. City of Louisville,

518 F.2d 899, 903, 912 (6th Cir.) (concluding that if the plaintiff prevailed on her §

1983 claim upon remand that she was entitled to recover damages for “emotional and

mental distress” based on testimony that “she was shocked and frightened by a [police

officer]’s conduct; and that since that time she has been fearful of participating in any

other demonstrations.”), cert. denied, 423 U.S. 930 (1975); Memphis Cmty. Sch. Dist.

v. Stachura, 477 U.S. 299, 307 (1986) (“[C]ompensatory damages may include not

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only out-of-pocket loss and other monetary harms, but also such injuries as

‘impairment of reputation . . . personal humiliation, and mental anguish and

suffering.’”). In Smith v. Heath, 691 F.2d 220, 226 (6th Cir. 1982), the Sixth Circuit

Court of Appeals explained that “the trial court should consider the following factors

in making its [compensatory] award: the nature of the constitutional deprivation, the

magnitude of the mental distress and humiliation suffered by the plaintiff, and any

other injury caused as a result of being deprived of federally protected rights.” Id. 

Defendant argues that this matter is akin to the negligence action in Koester,

supra, and that this is purely a property rights case; however such an argument is

unpersuasive because the case herein is a Fourth Amendment unlawful seizure case

under § 1983. The federal common law of damages in § 1983 cases was developed

with specific policy rationales that are not implicated in negligence actions. Other

courts have acknowledged that “the private Fourth Amendment interests involved are

appreciable,” that “the bond between a dog owner and his pet can be strong and

enduring,” and some “think of dogs solely in terms of an emotional relationship,

rather than a property relationship.” Altman v. City of High Point, 330 F.3d 194, 205

(4th Cir. 2003). The Sixth Circuit has cautioned that “[a]lthough courts examining

claims for damages under § 1983 should look to the common law for guidance, they

should not try to fit a constitutional claim into a Procrustean bed of common law tort.” 

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Chatman v. Slagle, 107 F.3d 380, 384 (6th Cir. 1997). 

In Frontier Ins. Co. v. Blaty, 454 F.3d 590, 600 (6th Cir. 2006), the Sixth

Circuit Court of Appeals explained that when there appears to be an inconsistency

between federal and state law, courts should look to the policies underlying section

1983. Id. These policies “include both (1) compensation of persons for injuries

caused by deprivation of their federal rights and (2) deterrence of deprivation of

rights. The policy of deterrence operates through the mechanism of damages that are

compensatory–damages grounded in determination of plaintiffs’ actual losses.” Id.

at 600-01 (internal quotations and citations omitted). 

In Blaty, a § 1983 action was brought by the estate of a thirteen month old who

died while in the custody of a private foster care agency under contract with the State

of Michigan. Id. at 593. On appeal, the personal representative argued the estate was

entitled to loss of enjoyment of life damages, even though Michigan’s wrongful death

act did not permit recovery for such damages. Id. The Blaty court concluded that

Michigan’s wrongful death act was consistent with the compensatory purpose of

§1983 because “[t]he act authorizes compensation for losses, including hedonic losses,

that are experienced by the decedent before death. There is no requirement under

federal law that a state go further than this in providing damages for wrongful death.” 

Id. at 601. 

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The situation before this Court compels a different conclusion. Prohibiting

recovery for emotional damages stemming from the loss of, or harm to, an animal

caused by a constitutional violation would conflict with the compensatory and

deterrence aims of § 1983. The estate in Blaty was compensated fully for “actual

losses” suffered, including hedonic damages prior to the minor child’s death. Here,

if the Court were to preclude mental and emotional damages attributable to the

constitutional violation, including the unlawful seizure of Plaintiff’s dog, Plaintiffs

will not be compensated for their “actual losses.” Thus, this Court must apply the

federal common law and award emotional distress damages arising from Defendant’s

unlawful seizure of Plaintiffs’ dog. Erwin, 872 F.2d at 1299 (“Although state law

may not allow punitive damages without a compensatory award, under federal law,

when a jury finds a constitutional violation under a § 1983 claim, it may award

punitive damages even when it does not award compensatory damages. The scope of

punitive damages in § 1983 actions is governed by the federal common law of

damages, which imposes uniformity when enforcing the Civil Rights Act.”). 

In McHugh v. Olympia Entm’t, Inc., 37 F. App’x 730, 736 n.5 (6th Cir. May 28,

2002), the Sixth Circuit Court of Appeals rejected the defendants’ argument that

Michigan’s comparative fault statute applies to civil rights claims. Id. The McHugh

court held that applying Michigan’s comparative fault law would thwart the

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compensation and deterrence goals of § 1983. Id. Specifically, the court noted that

application of the comparative fault laws to civil rights actions “would result in the

protection afforded under § 1983 to differ from state to state and would be

inconsistent with the underlying policy of deterrence and compensation.” Id. 

Similarly, applying a law to civil rights actions that would bar recovery of

emotional damages for the injury or the death of animals would produce different

results from state to state. Unlike Michigan law, some states award emotional damages

for injury to pets. See Knowles Animal Hosp. v. Wills, 360 So.2d 37, 38 (Fla. Dist. Ct.

App. 3d. Dist. 1978) (affirming jury verdict awarding $1,000 to owner against an

animal hospital based on the “mental pain and suffering of the plaintiff-owners . . . .”);

Fredeen v. Stride, 269 Ore. 369, 375; 525 P.2d 166 (Or. 1974) (finding that recovery

against a veterinarian was warranted for mental anguish where veterinarian gave dog

to a person other than its owner); City of Garland v. White, 368 S.W.2d 12, 13-14

(Tex. Civ. App. Eastland 1963) (affirming judgment awarding damages for owner’s

mental pain and suffering against city for the shooting of dog by city police officers);

Lincecum v. Smith, 287 So.2d 625, 629 (La. Ct. App. 3d Cir. 1973) (allowing

emotional damages for conversion of puppy).

Moreover, Defendant fails to cite any authority for the proposition that

emotional distress damages for the unconstitutional seizure of a pet are precluded in

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a § 1983 action. Rather, Defendant directs the Court to a case out of the Western

District of Michigan brought pursuant to the Federal Torts Claims Act (“FTC”). See

Soto v. United States, 63 F. App’x 197 (6th Cir. Apr. 16, 2003). In Soto, the plaintiff

sought damages for the “wrongful and unnecessary killing of [his] dog, his emotional

distress consequent to that killing, and his emotional distress of fear of life and limb

due to the gunshots . . . in close proximity to the plaintiff.” Id. at 198. Defendant

maintains that Soto is helpful in resolving the issue herein because the Sixth Circuit

Court of Appeals upheld the district judge’s conclusion that the plaintiff could not

recover emotional distress damages resulting from the loss of personal property. The

Court concludes that reliance on Soto would be misplaced. Just as application of the

holding in Koester to bar nonecomonic losses would be antithetical to § 1983's goals,

reliance on Soto would likewise thwart the statute’s compensation and deterrence

aims. 

Conversely, Plaintiffs have provided the Court with a case permitting recovery

for emotional distress and mental anguish resulting from a Fourth Amendment

unlawful seizure of a pet dog. See Henning v. Nicklow, No. 1:08-CV-180, 2009 U.S.

Dist. LEXIS 101277 (N.D. Ind. Oct. 30, 2009). In Henning, the plaintiffs sued police

officers under § 1983 alleging their Fourth Amendment rights were violated when

police shot and killed their dog, Misty. Henning, 2009 U.S. Dist. LEXIS 101277, at

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*1. The defendant-officers’ filed a motion in limine and argued that the plaintiffs

should be precluded from testifying concerning their dog’s “value as a companion,

pet, and watch dog or their emotional distress and mental anguish.” Henning, 2009

U.S. Dist. LEXIS 101277, at *9-10. 

The Henning court denied the defendants’ arguments and permitted testimony

about the dog’s “characteristics as a companion, pet and watch dog to the extent it

assists in determining the value of the dog at the time of the loss, and [the p]laintiffs’

emotional distress attributable to the actual constitutional violation, rather than the

ongoing denial of the dog’s companionship.” Henning, 2009 U.S. Dist. LEXIS

101277, at *12. The Court finds Henning persuasive because it correctly permitted

emotional distress damages that are the natural result of a civil rights violation. Carey

v. Piphus, 435 U.S. 247, 264 (1978) (“mental and emotional distress caused by the

denial of [constitutional rights are] compensable under § 1983"). 

Lastly, the Court notes that Plaintiffs are correct in arguing they are entitled to

punitive damages should they prove their § 1983 action. Under federal law, a plaintiff

who proves a cause of action under § 1983 may recover punitive damages whenever

compensatory damages are established, even if nominal. See Gumsey v. Crawford,

679 F.2d 666, 667 (6th Cir.), cert. denied, 459 U.S. 973 (1982); Erwin, 872 F.2d at

299 (“Although state law may not award punitive damages without a compensatory

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award, under federal law, when a jury finds a constitutional violation under a § 1983

claim, it may award punitive damages even when it does not award compensatory

damages.”). 

The determination of both compensatory and punitive damages is left to the

discretion of the fact finder guided by the facts of the particular case. Smith, 691 F.2d

at 226. As such, if Plaintiffs establish a cause of action under § 1983, the jury is free

to award not only compensatory damages for the emotional distress suffered by

Plaintiffs, but may also award punitive damages by evaluating the nature of the

violation, the severity of the mental anguish suffered, and any other injury that is the

result of Defendant Hughes’ Fourth Amendment violation, including the unlawful

seizure of Plaintiffs’ dog. See Smith, 691 F.2d at 226-28.

IV. CONCLUSION 

Accordingly, Defendant’s Motion in Limine [#12] is DENIED. 

SO ORDERED.

Dated: January 19, 2016 /s/ Gershwin A. Drain 

GERSHWIN A. DRAIN 

UNITED STATES DISTRICT JUDGE 

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record by electronic and/or

ordinary mail.

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/s/ Felicia Moses for Tanya Bankston

Case Manager

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