DKCLM, LTD., and DALE KREIL v. COUNTY OF MILWAUKEE and PAMELA K. MILLER

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3388
DKCLM, LTD., and D ALE KREIL ,
Plaintiffs‐Appellants,
v.
C OUNTY OF MILWAUKEE and P AMELA K. MILLER ,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:11‐cv‐00933‐RTR — Rudolph T. Randa, Judge.
____________________
A RGUED J UNE 2, 2015 — D ECIDED J ULY 20, 2015
____________________
Before P OSNER , EASTERBROOK , and SYKES , Circuit Judges.
P OSNER , Circuit Judge. Apollo Properties, LLC, owned real
property in the City of Franklin, Wisconsin, a suburb of
Milwaukee. It had rented the property to another company,
DKCLM, Ltd., which used it as a site for the sale and servic‐
ing of boats and related marine equipment. The company
kept boats, motors, parts, tools, and business records there,
and also subleased a portion of the property to Dale Kreil, an
officer of DKCLM, who lived in a house on his leased part of

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2 No. 14‐3388
the property and kept all sorts of personal possessions there,
including family memorabilia, household goods, and vehi‐
cles. The parties treat DKCLM and its officer Kreil as a unit,
and we’ll do the same, referring to them jointly as Kreil.
In 2005, according to Apollo, Kreil defaulted on his obli‐
gation to pay rent, and in response Apollo initiated eviction
proceedings in Milwaukee County’s small claims court. Be‐
fore the suit was far advanced, however, the parties entered
into a stipulation whereby Apollo agreed to dismiss the case
and in exchange Kreil both promised to pay the rent due and
agreed that in the event of a future default Apollo would be
entitled to ask a court for a writ of restitution (meaning re‐
possession of the property and thus eviction of the tenant)
without notice to Kreil. Apollo asked a Wisconsin court for
that relief on August 15, 2005, Kreil having defaulted, and
nine days later the court issued the writ, but stayed en‐
forcement until September 26. The execution of the writ be‐
gan on October 5, Kreil was evicted, and later a judgment of
almost $54,000 for unpaid rent was entered against him.
Six years later Kreil filed suit under 42 U.S.C. § 1983 in a
federal district court in Wisconsin against Milwaukee Coun‐
ty and a Milwaukee County detective named Pamela Miller
(and others who were later dismissed), claiming that the
eviction had violated his federal constitutional rights in a va‐
riety of ways. All his claims were rejected by the district
court and only two of them are asserted in this appeal. The
first is that the entry onto the property was an unreasonable
seizure of the tenant’s (Kreil’s) leasehold, thus violating the
Fourth Amendment (made applicable to state action by in‐
terpretation of the due process clause of the Fourteenth
Amendment), because it occurred after the statutory dead‐

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No. 14‐3388 3
line for accomplishing an eviction. The second claim that he
is pressing is that the County and its agents had in violation
of the Fourteenth Amendment’s due process clause removed
or caused to be removed, and having done so destroyed or
otherwise discarded or caused to be discarded, the tenant’s
private property (boats, household possessions, etc.) found
on the leasehold.
An eviction pursuant to a court‐ordered writ of restitu‐
tion must be completed by the sheriff within 10 business
days after his receiving the writ from the issuing court. Wis.
Stat. §§ 799.45(5)(a), 801.15(1)(b). It’s unclear whether that
deadline was met. The eviction began on October 5 and was
completed on October 20, 2005. The judge thought it possible
that the sheriff’s office had received the writ the morning of
October 5, in which case October 20 would indeed have been
the tenth business day after receipt. But the sheriff may have
received the writ as early as August 29, according to the rec‐
ords of the sheriff’s office; and if so, Kreil argues, the clock
started to tick on September 26, the day the stay of enforce‐
ment expired. But the district judge didn’t think the eviction
unlawful even if the sheriff’s office had not completed it
within ten days of receiving the writ. The judge based this
conclusion on the fact that the eviction had been delayed
by—of all things—the presence of a skunk.
We agree that the eviction did not violate the Fourth
Amendment even if the sheriff missed the 10‐day deadline.
And not because of the skunk’s intervention. The 10‐day
deadline is imposed by state law rather than by the Fourth
Amendment. The standard governing the legality of a search
or seizure challenged under the Fourth Amendment is fur‐
nished by federal rather than state law. Virginia v. Moore, 553

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4 No. 14‐3388
U.S. 164, 176 (2008); Sroga v. Weiglen, 649 F.3d 604, 607 (7th
Cir. 2011); Jackson v. Parker, 627 F.3d 634, 640 (7th Cir. 2010).
And the standard is reasonableness, not ten days; and even
if the sheriff’s team should not have blanched at having to
confront a skunk, Kreil hasn’t shown that the length of time
it took the sheriff to remove all of Kreil’s possessions was
unreasonable. It’s true that in Wolf‐Lillie v. Sonquist, 699 F.2d
864 (7th Cir. 1983), a district court’s holding that a writ of
restitution executed after the state’s statutory deadline vio‐
lated the Fourth Amendment wasn’t contested on appeal.
But even if our opinion in that case could be read as endors‐
ing that district court’s holding, this would not help Kreil
because any such reading would be contrary to the Supreme
Court’s decision in Virginia v. Moore.
As Kreil himself stresses, his personal possessions were
strewn over the property. Some of them (like the boats) were
very bulky and heavy; the property also included the entire
contents of Kreil’s home. The sheriff’s team couldn’t remove
all that stuff in a day or two. Kreil was frequently on the
property during the removal of his possessions, and he de‐
cided to abandon many of them, including most of the ap‐
pliances, the entire contents of a cinderblock building on his
leasehold, and his filing cabinets including the papers in
them. His claim that the eviction resulted in “gratuitous de‐
struction, diversion or disposal of millions of dollars” worth
of personal property owned by him is unsupported by a list‐
ing of the items and evidence of their value.
He argues that moving companies hired by Milwaukee
County to remove his personal property to a safe place and
return it to him when the eviction (and hence removal of all
that property) was complete failed to return it all. He further

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No. 14‐3388 5
argues, quite without personal knowledge, that the missing
property was discarded by order of the defendants. Alt‐
hough he joined both moving companies as defendants in
the suit, he apparently did not seek discovery of them even
though they obviously would have known had the County
ordered them to throw away the personal property of his
that they removed from the eviction site. Moreover, he vol‐
untarily dismissed his claims against one of the movers, and
the district court dismissed his claims against the other for
the same reasons it dismissed his claims against the public
defendants. To support his case Kreil relies solely on his dec‐
laration, which is too vague about what he lost and why he
thinks he knows what happened to it and in short who did
what. See Ani‐Deng v. Jeffboat, LLC, 777 F.3d 452, 454–55 (7th
Cir. 2015).
Besides charging a violation of the Fourth Amendment,
Kreil argues that the removal and (alleged) destruction of his
property deprived him of property without due process of
law, in violation of the due process clause of the Fourteenth
Amendment. The argument fails for the same reason as the
Fourth Amendment claim—insufficient evidence was pre‐
sented in opposition to the defendants’ motion for summary
judgment. But we do want to comment on the defendants’
alternative defense to the due process claim—that it is
barred by the tenant’s having an adequate remedy under
state law. The doctrine of Parratt v. Taylor, 451 U.S. 527
(1981), is that an adequate state remedy for a deprivation of
property provides all the due process that a plaintiff suing
state officers for such deprivation is entitled to; the problem
in this case is that the Wisconsin state statute that provides a
remedy for such a deprivation caps the liability of state
agencies and officers at a measly $50,000, Wis. Stat.

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6 No. 14‐3388
§ 893.80(3), which if Kreil’s estimate of damages had been
correct would be less than a twentieth of his actual damages.
We are inclined to think, though we need not decide in view
of the bar to his due process claim just discussed, that a ceil‐
ing so far below a plaintiff’s loss renders the state remedy
inadequate. See Julian v. Hanna, 732 F.3d 842, 846–48 (7th Cir.
2013).
The parties raise some other issues, but they needn’t be
resolved in order to demonstrate that the judgment of the
district court must be, and it therefore is,
A FFIRMED.

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