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Cook v. Takacs

United States District Court, N.D. Ohio, Eastern Division

July 19, 2019

DAVID M. COOK, JR., Plaintiff,
v.
LAURA TAKACS, et al, Defendants.

          MEMORANDUM OPINION

          DONALD C. NUGENT SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Motions for Summary Judgment filed by Defendants, Laura Takacs, Rose Volpe and City of Middleburg Heights (Docket #44) and Plaintiff, David M. Cook, Jr. (Docket #45).

         I. Factual and Procedural Background.[1]

         Between late Saturday, August 18, 2018 and the early morning hours of Sunday, August 19, 2018, City of Middleburg Heights Animal Control Officer Laura Takacs received a call regarding a dog at large in the City of Middleburg Heights and sent her Emergency Assistant to pick up the dog. The dog was loose in a residential neighborhood; did not have any identification tags; and, Animal Control did not know who owned the dog. The dog was taken to the City of Middleburg Heights Kennel. The dog - later determined to be a pitbull named Storm - belonged to Plaintiff, David Cook. Mr. Cook testified during deposition he had put Storm outside on August 18, 2018 while cleaning the house with his mother, Gloria Singleton. (Deposition of David M. Cook, Jr. ("Cook Depo.") at p. 41.) Later, Mr. Cook fell asleep on the couch and slept through the night, forgetting that he had left Storm outside on his porch. (Id. at p. 42.) When Mr. Cook awoke the next morning (Sunday, August 19, 2018), he realized that Storm, who had escaped the porch area a few times before, was gone. (Id. at p. 66.) Mr. Cook drove around the neighborhood looking for Storm, but did not find her. (Id. at p. 43-44.) Mr. Cook went to the Middleburg Heights Animal Control Facility to look for Storm, but because it was a Sunday the building was not open. Mr. Cook stated during deposition that he spoke to someone from Middleburg Heights City Hall who instructed him to return to Middleburg Heights Animal Control the following morning at 7:00 a.m. (Id. at pp. 47-48.)

         Animal Control Officer Takacs also went to the City of Middleburg Heights Kennel on Sunday, August 19, 2018, and learned that Storm belonged to David Cook. In her Affidavit, Ms. Takacs states that she observed the dog to be "extremely skittish and extraordinarily fearful. She would immediately flinch, closer her eyes, and hit the ground if you raised your had to pet her or even approach. She was exhibiting the body language of a dog that was beaten/hit routinely. There were several other people that witnessed the behavior." (Affidavit of Laura Takacs ("Takacs Affidavit") at Paragraphs 4-5.) Ms. Takacs states in her Affidavit that in addition to her own observations, she received "several anonymous calls from Mr. Cook's neighbors stating that they had great concern for the safety of the dog, and that if we gave her to Mr. Cook that we would be responsible for her death." Ms. Takacs "was told that Mr. Cook cut the dog's ears and that he had kicked a prior dog to death." Ms. Takacs states she "was also told by the Law Director at the time that he received complaints from neighbors stating that Mr. Cook cut the dog's ears with scissors and kicked an earlier dog to death." Ms. Takacs states that the Law Director instructed her to hold onto the dog until an investigation was complete in order to keep the dog safe." (Takacs Affidavit at Paragraph 7.)

         Mr. Cook returned to the Animal Control Facility on August 20, 2018 at 7:00 a.m. and it was not open. (Cook Depo. at p. 48.) Mr. Cook came back around 9:00 a.m but was unable to gain access to the building. (Id. at p. 49.) He called Middleburg Heights City Hall and was transferred to Defendant, Rose Volpe, who told him Ms. Takacs was in a meeting. Ms. Takacs returned Mr. Cook's call later that same day. Mr. Cook alleges that when he asked Ms. Takacs what he needed to do to get Storm back, Ms. Takacs did not respond. Ms. Takacs inquired regarding the fact that Storm's ears were cropped and asked if Mr. Cook had veterinarian records regarding the same. Mr. Cook responded that Storm's ears were cropped when he bought her as a puppy. Ms. Takacs informed Mr. Cook that he needed a new Cuyahoga County dog tag to retrieve Storm and that Storm was at the veterinarian's office for an examination. (Id. at pp. 50-52.)

         Within an hour of speaking to Ms. Takacs, Mr. Cook obtained the required Cuyahoga County dog registration and called City Hall. Mr. Cook was transferred to Ms. Volpe. He informed Ms. Volpe that he had the dog tag and was on his way to pick up Storm and states that Ms. Volpe replied, "okay." Mr. Cook states that when he tried to retrieve Storm, no one answered the door, and that when he contacted Ms. Volpe, she stated Ms. Takacs was on another emergency call. Mr. Cook then went to City Hall to speak to Ms. Volpe and Ms. Volpe indicated that Storm was being examined by a veterinarian. (Id. at p. 53.) Mr. Cook questioned the City's authorization to take the dog for an examination and asked who would pay for the veterinary exam. (Id.) Mr. Cook states that he was told that the City would pay for the veterinary exam. (Id.)

         Mr. Cook's mother, Gloria Singleton, also called City Hall on August 205 2018. (Affidavit of Gloria Singleton ("Singleton Affidavit") at Paragraph 3.) Ms. Singleton was told that Ms. Takacs was unavailable and she was transferred to Ms. Volpe, who Ms. Singleton alleges represented that she was Ms. Takacs's superior. (Id. at Paragraph 4.) Ms. Volpe told Ms. Singleton that Mr. Cook could not get Storm back because "he killed his dog" and because Mr. Cook's neighbors had complained. (Id. at Paragraphs 4-5.) Ms. Singleton questioned the fact that Storm had been taken to a veterinarian for examination and asked who would be responsible for the veterinary costs. (Id. at Paragraph 5.) Ms. Singleton was referred to the Law Director, Gary Ebert, and left a message. (Id. at Paragraphs 6-7) Ms. Singleton also called Mayor Gary Starr twice, but he was unavailable. She left a message. (Id. at Paragraph 8.)

         The Veterinarian examined Storm and she appeared to be healthy, "except for her fearful condition and marks around her rear and vaginal area. Her ears appeared to be home crop job." (Takacs Affidavit at Paragraph 6.) Ms. Takacs called Mr. Cook in the evening on August 20, 2018 and indicated that Mr. Cook could pick Storm up at noon on August 21, 2018 at the Animal Control Facility.

         On August 21, 2018, Mr. Ebert returned Ms. Singleton's call and told her that he would investigate further and talk with the City Prosecutor, Santo Incorvaia. (Singleton Affidavit at Paragraph 7.) Ms. Singleton called Mayor Starr that day and left a message on the Mayor's voicemail. The Mayor did not return her call. (Id. at Paragraph 9.)

         Mr. Cook states that on August 21, 2018, Ms. Takacs called him and informed him that she may not be available due a Union meeting, but that he could pick Storm up from the Middleburg Heights Police Department. (Cook Affidavit at Paragraph 22.) Nevertheless, Ms. Takacs was at the Police Department when Mr. Cook and Ms. Singleton arrived to retrieve Storm. (Cook Depo. at p. 54; Cook Affidavit at Paragraph 23.) Prior to this meeting, the City Prosecutor had decided to cite Mr. Cook for violations of the Middleburg Heights City Ordinances prohibiting Animals at Large and Cruelty to Animals. Ms. Takacs handed Mr. Cook two Citations: a) Animal at Large in violation of Middleburg Heights Codified Ordinance § 618.02(a), Citation No. 01378, with a violation date of August 18, 2018 at 9:27 p.m. and a Court date of September 5, 2018, and (b) Cruelty to Animals in violation of Middleburg Heights Codified Ordinance § 618.05(a)(1), Citation No. 01379, with a violation date of August 18, 2018 at 9:27 p.m. and no Court date listed. (Takacs Affidavit at Paragraph 8; Cook Depo. at p. 54; Cook Affidavit at Paragraph 23.) Mr. Cook refused to sign the Citations. (Cook Depo. at p. 55; Cook Affidavit at Paragraph 23.)

         At the Police Department, Ms. Takacs asked Mr. Cook if Storm had ever had surgery or litters of puppies because there was a scar on her stomach, which Mr. Cook denied. (Cook Affidavit at Paragraphs 24-25.) Mr. Cook stated during deposition that the scar was not present before Storm was impounded and that he asked Ms. Takacs if any surgical procedures were performed on Storm. Mr. Cook asked if Storm had been microchipped and alleges that Ms. Takacs was evasive and told him that Storm would get a microchip. (Cook Depo. at p. 62; Cook Affidavit at Paragraph 25.) Ms. Takacs also questioned Mr. Cook about Storm's ears being cut. (Id.) She informed Mr. Cook that he could not retrieve the dog until a court date occurred. Mr. Cook alleges that Ms. Takacs's "promise to give [the dog] to Mr. Cook was clearly a false pretense to lure him to the police station so that she could serve him with criminal citations." (Docket #45 at p. 5; Cook Depo. at p. 59.)

         Mr. Cook had no contact with anyone from the City of Middleburg Heights after the August 21, 2018 meeting at the Police Department. (Cook Affidavit at Paragraph 26.) On August 25, 2018, Mr. Cook received citations by mail for the same offenses, with two new Citation Numbers and different Court dates: a) Animal at Large in violation of Middleburg Heights Codified Ordinance § 618.02(a), Citation No. 01380, with a violation date of August 18, 2018 at 9:27 p.m. and a Court date of August 28 or 29, 2018 (the date was difficult to read) and (b) Cruelty to Animals in violation of Middleburg Heights Codified Ordinance § 618.05(a)(1), Citation No. 01381, with a violation date of August 18, 2018 at 9:27 p.m. and a Court date of August 28 or 29, 2018.[2]

         Mr. Cook has consistently denied all allegations of animal abuse and testified during deposition that Storm's ears were cropped when he purchased her as a puppy. (Cook Depo. at pp. 17, 56-67.) On September 5, 2018, the hearing date originally listed on the Citations provided to Mr. Cook at the Police Department, the charges against Mr. Cook were dismissed and Storm was returned to Mr. Cook. Mr. Cook argues the charges were dismissed because of an error on the Citations. Defendants state that the City Prosecutor decided to drop the charges.

         Defendants state Storm was well-cared for, exercised, fed and given water while in the custody of the Animal Control Department; was not microchipped; and, was returned to Mr. Cook in perfect health. Mr. Cook testified during deposition, "There was a rash, and there was a little bit of a scab or scar where it looked like something might have been done to her. And she had like, itchy spots, and I don't know if that's from how she was kenneled." (Id. at p. 64.) He treated the rash with ointment he had and the rash cleared up after two weeks. (Id.)

         Mr. Cook did not have any veterinary expenses associated with Storm's impoundment. (Id.) He testified that he lost work hours, in addition to "doing legal work at night and making copies of papers and getting phone records and all of those types of things." (Id. at p. 67.)

         II. The Complaint

         Mr. Cook initially filed his Complaint in this case on August 29, 2018 and, shortly thereafter filed Motions for Temporary Restraining Order, Preliminary Injunction and Permanent Injunction. An Amended Complaint was filed on November 5, 2018, along with a new Motion for Permanent Injunction and Preliminary Injunction. (Docket #s 12 and 13.) The Motion for ...


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