United States District Court, N.D. Ohio, Eastern Division
DAVID M. COOK, JR., Plaintiff,
LAURA TAKACS, et al, Defendants.
C. NUGENT SENIOR UNITED STATES DISTRICT JUDGE.
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).
Factual and Procedural Background.
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.)
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.)
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.)
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.)
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
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.
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.)
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.)
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.)
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.
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
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.)
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.
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