Miller v. Vohne Liche Kennels, Inc., 600 F. App'x 475

Background

In May 2008 Plymouth police searched Kevin Miller’s car after a drug‑sniffing dog allegedly alerted; no drugs were found. Miller sued the City and officer under 42 U.S.C. § 1983 and lost at trial.
During discovery in that earlier case (Jan. 2010) Miller learned the dog had been trained by Vohne Liche Kennels and certified by American Working Dogs United (collectively “VLK”).
Miller filed this separate § 1983 suit against VLK within two years of learning their role, alleging deficient training (e.g., training to alert to residual odors, short training programs) caused the unconstitutional search and seeking damages.
VLK moved for summary judgment arguing Miller’s claim was time‑barred by the two‑year § 1983 statute of limitations and that VLK are private actors not subject to § 1983. Miller moved for partial summary judgment arguing dogs trained to detect residual odor cannot establish probable cause.
The district court granted summary judgment to VLK on statute‑of‑limitations grounds and taxed Miller costs for trial transcripts from the earlier case. On appeal the Seventh Circuit affirmed, relying on the lack of state action rather than the statute of limitations.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether VLK acted under color of state law so Miller can bring § 1983 claims	VLK performed a traditionally public function by training police drug dogs and were authorized by the state Training Board; Plymouth paid VLK for the dog and training	VLK are private contractors; training dogs is not an exclusive state function and does not transform VLK into state actors	VLK are not state actors; § 1983 claim fails for lack of state action
Whether an alert by a dog trained to detect residual odors can establish probable cause	An alert by a dog trained to detect residual odor cannot establish probable cause	A dog’s alert to odor (including residual odor) can support probable cause; Harris supports that dogs detect scent, not the physical presence of drugs	Even if state action existed, Miller’s residual‑odor theory is foreclosed by Harris and subsequent precedent
Timeliness: whether Miller’s claim accrued in 2008 or when he learned of VLK in 2010	Claim accrued when Miller learned VLK trained the dog (Jan. 2010); equitable tolling applies due to discovery resistance	Claim accrued in 2008 at the time of the search; suit filed in 2012 was untimely	Court did not reach merits of timeliness because it resolved case on lack of state action
Award of costs for trial transcripts from prior litigation	VLK’s asserted need for the full transcript to evaluate issue‑preclusion was pretextual; judge had previously limited training efficacy issues	Transcripts were necessarily obtained for use in the case and are taxable under 28 U.S.C. § 1920(2)	Taxing costs for the transcripts was within district court’s discretion and not an abuse of discretion

Key Cases Cited

West v. Atkins, 487 U.S. 42 (1988) (private actor may be state actor when performing a traditional, exclusive public function)
Terry v. Adams, 345 U.S. 461 (1953) (certain delegations of public functions can create state action)
Marsh v. Alabama, 326 U.S. 501 (1946) (private entities operating as company towns may be subject to constitutional constraints)
Jackson v. Metro. Edison Co., 419 U.S. 345 (1974) (not all functions serving the public make private actors state actors)
Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) (state action analysis in jury selection context)
Evans v. Newton, 382 U.S. 296 (1966) (operation of public facilities by private entities can give rise to state action)
Wade v. Byles, 83 F.3d 902 (7th Cir. 1996) (private security/contractor not state actor for § 1983 purposes)
Johnson v. LaRabida Children’s Hosp., 372 F.3d 894 (7th Cir. 2004) (private contractor performing public services is not necessarily a state actor)
Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811 (7th Cir. 2009) (state action requirement for § 1983 claims)
Florida v. Harris, 568 U.S. 237 (2013) (a dog’s alert to scent can support probable cause; dogs detect scent, not the physical presence of drugs)
Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926 (7th Cir. 1997) (trial transcript fees are taxable costs under § 1920(2))
Illinois v. Sangamo Constr. Co., 657 F.2d 855 (7th Cir. 1981) (transcripts are taxable as costs when necessarily obtained)
Montanez v. Simon, 755 F.3d 547 (7th Cir. 2014) (appellate standard of review for costs awards)
U.S. Neurosurgical, Inc. v. City of Chicago, 572 F.3d 325 (7th Cir. 2009) (district court discretion in awarding costs)