In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-3131

SHERRY WALL,

Plaintiff-Appellant,

v.

CITY OF BROOKFIELD, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 03-C-0663—Rudolph T. Randa, Chief Judge.

____________

ARGUED APRIL 4, 2005—DECIDED APRIL 27, 2005

____________

Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge. This case bids fair to bring constitutional litigation into disrepute. The plaintiff, a resident of a

Milwaukee suburb, owns two dogs, one a 95-pound Doberman Pinscher that is constantly getting loose and frightening the neighbors. The plaintiff received nine citations for

violating the municipal ordinance that forbids people to let

their dogs run wild. These citations cost her in fines and

attorneys’ fees some $25,000. The next time the dog got out
2 No. 04-3131

the local humane society picked it up and the town authorities told the society to hold on to the dog as a stray, though

they knew it was not a stray—that it was the plaintiff’s

notorious animal. She brought this suit under 42 U.S.C.

§ 1983, contending that the town had deprived her of her

property without due process of law and seeking injunctive

relief and damages. After detaining the dog for 60 days, the

humane society returned it to her, so her suit became one for

the loss of 60 days of animal companionship.

If ever the resolution of a dispute belonged at the local

level of government, it is this dispute over what to do about

the plaintiff’s inability or, more likely, unwillingness to

control her intimidating Doberman. It is impossible to

discern a federal interest. There is no suggestion that the

plaintiff belongs to a discriminated-against minority, that

Wisconsin officialdom is irrationally hostile to dog owners,

that Brookfield intended to sell the Doberman in order to

retire the town debt, that the plaintiff is a political opponent

of the town’s mayor, that leash laws challenge values

embedded in the federal Constitution or federal laws, or

that the detention of the dog was intended as retaliation

against the plaintiff for asserting her federal rights. This is

a neighborhood squabble over a dog, a squabble properly to

be resolved at the neighborhood or local level rather than by

federal judges sitting in Milwaukee and Chicago. Such hotly

litigated issues as whether a neighbor’s two-pound dog the

scruff of whose tiny neck the Doberman clamped its jaws on

was a puppy that the Doberman was playing sweetly with

or a minute adult that the Doberman was terrifying do not

engage the expertise of federal judges.

The plaintiff needs to be reminded that a deprivation of

property is actionable under section 1983 only when it is

accomplished without due process of law and that the

temporary deprivation of property of slight value requires
No. 04-3131 3

only modest process, consistently with the sliding scale

approach of Mathews v. Eldridge, 424 U.S. 319 (1976); see also

Hudson v. City of Chicago, 374 F.3d 554, 559-60, 562 (7th Cir.

2004); Alexander v. Wisconsin Dep’t of Health & Family Services, 263 F.3d 673, 688 (7th Cir. 2001); Porter v. DiBlasio, 93

F.3d 301, 305-06 (7th Cir. 1996). The Doberman was seized

without notice and an opportunity for a pre-seizure

hearing—necessarily so, since the dog was picked up in the

street. Only a post-deprivation hearing was feasible. The

plaintiff could have got that by filing a petition in the

county court for the return of an animal “wrongfully withheld under [Wis. Stat. §] 173.21(1).” Wis. Stat. § 173.22. No

more process than that was constitutionally required. Parratt

v. Taylor, 451 U.S. 527 (1981).

The plaintiff makes the frivolous argument that because

a petition for return of an animal “improperly taken into

custody” is unavailable if the ground for taking the animal

into custody was that it was abandoned or a stray, Wis. Stat.

§§ 173.13(1)(a)1, 173.22(1), she cannot proceed under section

173.22, the petition-for-return section. But that section is

explicit that the petition can be filed either if the claim is that

the animal was improperly taken into custody or if the claim

is that the animal is being wrongfully withheld, and her

contention is that the Doberman was wrongfully withheld.

This is nuisance litigation that the federal judiciary does

not need. So we affirm the judgment but at the same time

issue the plaintiff an order to show cause why she should

not be sanctioned for making a frivolous argument in a

meritless case.
4 No. 04-3131

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-27-05