Holland v. City of Milwaukee et al

Filing 3

ORDER signed by Judge J P Stadtmueller on 6/25/09 denying 2 plaintiff's motion for leave to proceed in forma pauperis and dismissing this case without prejudice. See Order. (cc: plaintiff, all counsel of record)(nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ R O B E R T L. HOLLAND, SR., P l a i n t if f , v. C IT Y OF MILW A U K E E , S T A T E OF W IS C O N S IN , and J A C Q U E L IN E BROW N HOLLAND, D e fe n d a n ts . ____________________________________________ Case No. 09-CV-454

ORDER
P la in tiff Robert Holland, Sr. ("Holland") files a pro se lawsuit alleging eleven la r g e ly unrelated claims, ranging from discrimination by a United States District J u d g e to an unfair child support order to insurance fraud. In connection with his c o m p la in t, Holland also files a motion for leave to proceed in forma pauperis (IFP). T h e court now considers Holland's request and issues a sua sponte dismissal of the c o m p la in t pursuant to 28 U.S.C. § 1915(e)(2)(B) for frivolousness and failure to state a claim. A n y party instituting a non-habeas civil action, suit or proceeding in a district c o u r t of the United States must pay a filing fee of $350. See 28 U.S.C. § 1914(a). H o w e ve r, a court may authorize a party to proceed IFP, which allows the party to p ro s e c u te his suit "without prepayment of fees or security therefor." 28 U.S.C. § 1915(a)(1). To qualify for such treatment, a party must assert that he is both u n a b le to pay the required fees and that he is entitled to redress. See id.

H o lla n d has adequately demonstrated an inability to pay the required costs a n d fees. He filed an affidavit asserting that he is currently unemployed and has four d e p e n d e n t children. Holland also affirms that his monthly expenses exceed his m o n th ly income. On the basis of these filings, the court determines that Holland q u a lifie s for IFP treatment. However, this is not the end of the court's inquiry. T h e court must also look at the content of Holland's complaint. When

re vie w in g a petition to proceed IFP, the court must evaluate the plaintiff's claims and d is m is s any which are frivolous, malicious, fail to state a claim on which relief may b e granted, or seek monetary relief against a defendant who is immune from such re lie f. See 28 U.S.C. § 1915(e)(2)(B); Alston v. Debruyn, 13 F.3d 1036, 1039 (7th C ir. 1994). A court will determine that a claim is frivolous under § 1915(e)(2)(I) when th e claim lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 3 2 5 (1989). A court determines whether a plaintiff's complaint fails to state a claim o n which relief may be granted under § 1915(e)(2)(B)(ii) by applying the same s t a n d a r d used to review a motion to dismiss pursuant to Federal Rule of Civil P ro c e d u re 12(b)(6). See DeWalt v. Carter, 224 F.3d 607, 611-12 (7th Cir. 2000). U s in g this standard, the court must take the plaintiff's factual allegations as true and d ra w all reasonable inferences in his favor. Id. at 612. Dismissal under the standard is appropriate only when it appears beyond doubt that the plaintiff can prove no set o f facts that would entitle him to relief. Lagerstrom v. Kingston, 463 F.3d 621, 624 (7 th Cir. 2006).

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H o lla n d asserts an assortment of claims 1 against the State of W is c o n s in , the C ity of Milwaukee, and his estranged wife, Jacqueline Brown Holland, arising from e v e n ts that occurred over the "past 20 years." (Pl.'s Compl. 3). Holland's claims c o n s titu te assertions that his civil rights were violated by each of the following facts a n d incidents: 1) United States District Judge Rudolph Randa's dismissal of a case file d by the plaintiff in 1999; 2) state-ordered child support and the state's attempt to in c a rc e r a t e the plaintiff for failure to pay2 ; 3) state issuance of a restraining order a g a in s t the plaintiff when he was "only trying to get [his] belongings back"; 4) failure b y the City of Milwaukee and State of W is c o n s in to ensure the return of the plaintiff's c a r , which was stolen and then towed; 5) having been issued $600 in traffic tickets; 6 ) citations issued by the City of Milwaukee in retaliation for the plaintiff's filing of a c la im for damage done to his stereo when his sister's home was raided by the City; 7 ) harassment by police officers in pulling the plaintiff over repeatedly and having his ve h ic le towed; 8) harassment by city officials in targeting his home for citations; 9) d isc rim in a tio n exhibited in the State's attempt to incarcerate the plaintiff while a white a ld e rm a n who "put a man in a comma [sic]" had his case dismissed; 10) 3 the City's failu re to hire the plaintiff, the erasure of his prescription records from a pharmacy,

Holland labels the num b e r e d allegations in his complaint as "exhibits," however, he filed no additional d o c u m e n ts and the court interprets his use of the term to m e a n "claim ." The circum s ta n c e s surrounding the State of W is c o n s in 's attem p ts to incarcerate Holland regarding c h ild support issues are unclear. Holland asserts that the State tried to incarcerate him for "having and trying to raise a fam ily." (Pl.'s Com p l. 4).
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H o lla n d com b in e s his last four assertions under the heading "My Tenth and Eleventh Exhibit."

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w h ic h prevented him from filing a Vioxx claim, fraud by his insurance company, and c itatio n s received for "driving while black in W is c o n s in . " (Pl.'s Compl. 5). H o w e v e r, none of Holland's federal claims survive the court's review because th e y are either frivolous or fail to state a claim on which relief may be granted. First, H o lla n d fails to state a claim upon which relief may be granted regarding his a lle g a tio n s that U.S. District Judge Randa acted in a racist manner when he d is m is s e d Holland's 1999 civil case. As an initial matter, Holland does not name J u d g e Randa as a defendant. In addition, even if he named Judge Randa as a d e fe n d a n t, the judge is entitled to judicial immunity. Judges are not liable in civil a c tio n s for their judicial acts unless they act in the clear absence of jurisdiction, even if the action was done in error, maliciously, or in excess of the judge's authority. B r o k a w v. Mercer County, 235 F.3d 100, 1015 (7th Cir. 2000) (citing Stump v. S p a r k m a n , 435 U.S. 349, 356-57 (1978)). Judicial immunity even applies to claims b ro u g h t under 42 U.S.C. § 1983. Eades v. Sterlinske, 810 F.2d 723, 725 (7th Cir. 1 9 8 7 ) (citing Pierson v. Ray, 386 U.S. 547, 554-55 (1967)). In the instant case, the re is no indication that Judge Randa's actions in dismissing Holland's case were o u ts id e of those normally performed by a judge or were undertaken in the "clear a b s e n c e " of jurisdiction. Thus, judicial immunity applies. S im ila rly , Holland's claims against the State of W is c o n s in (all or part of claims tw o , three, four, five, and nine) fail because the state is immune from suit. The E le ve n th Amendment to the United States Constitution provides that "The Judicial p o w e r of the United States shall not be construed to extend to any suit in law or -4-

e q u ity, commenced or prosecuted against one of the United States by Citizens of a n o th e r State, or by Citizens or Subjects of any Foreign States." Despite the w o r d in g of the Amendment, the United States Supreme Court holds that a nonc o n s e n tin g state is immune from suits by both citizens of other states as well as from s u its by its own citizens. E.g., Tennessee Student Assistance Corp v. Hood, 541 U .S . 440, 446 (2004). Thus, as a private citizen, Holland cannot bring suit against th e State of W is c o n s in . The court does note, however, that three exceptions to such im m u n ity exist. Peirick v. Ind. University-Purdue Univ. Indianapolis Ath. Dep't, 510 F .3 d 681, 695 (7th Cir. 2007). These exceptions apply when a plaintiff files suit a g a in s t state officials seeking prospective equitable relief for ongoing violations of fe d e ra l law, when a state waives its immunity by consenting to suit, and when C o n g re s s abrogates the state's immunity through a valid exercise of its powers. Id. H o lla n d has not named any W is c o n s in state officials as defendants and there is no in d ica tio n that either of the other two exceptions applies to his claims. Next, the court addresses Holland's claims against the City of Milwaukee. W h e n the court liberally construes Holland's complaint, these claims include his fifth c la im regarding the City's discriminatory act of issuing $600 worth of traffic tickets to Holland, his sixth claim regarding damage done to his stereo by the City during a raid, his seventh and eighth claims alleging that he was targeted for harassment a n d citations by the City because he filed a claim for his stereo, his ninth claim re g a rd in g the City's attempts to incarcerate him while not incarcerating a white

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a ld e rm a n , and his tenth and eleventh claims regarding the City's refusal to hire him a n d alleging that he was issued traffic tickets for "driving while black in W isc o n s in ."4 H o w e v e r, Holland's remaining claims are also frivolous or fail to state a claim. In claim five, Holland merely asserts that he was issued $600 worth of citations, d e s p ite having a driver's license. This statement does not constitute a cognizable c la im because a license does not protect an individual from the consequences of vio la tin g a traffic law or City ordinance. Although Holland precedes his assertion w ith the sentence, "My fifth exhibit shows the racism and discrimination that African A m e ric a n males face," he does not claim that he was issued baseless citations or th a t he was selectively issued citations because of his race. Thus, he fails to state a claim. H o lla n d 's sixth claim regarding property damage to his stereo during a raid by th e City may be construed as a 42 U.S.C. § 1983 claim for a violation of the F o u rte e n th Amendment's prohibition on state officials depriving "any person of life, lib e rty, or property without due process of law." To establish deprivation of property w ith o u t due process caused by a state employee's random, unauthorized conduct, a plaintiff must show: (1) that the offending actions were taken by someone acting u n d e r the color of state law; (2) that the conduct deprived him of a constitutionally p ro te c te d property interest; and (3) the alleged deprivation occurred without due

Holland's tenth and eleventh claim s also include allegations that his pharm a c y records were erased a n d that he was defrauded by an insurance com p a n y. However, Holland nam e s only the State of W is c o n s in , th e City of Milwaukee, and his wife as defendants. The court finds that Holland fails to state a claim regarding th e s e fraud allegations because he provides no explanation beyond the assertions m e n tio n e d above and does n o t nam e any pharm a c y or insurance com p a n y as a defendant.

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p ro c e s s of law. See Germano v. Winnebago County, 403 F.3d 926, 927 (7th Cir. 2 0 0 5 ). A plaintiff fails to establish the third element when there are adequate state re m e d ie s to satisfy the requirements of due process. See id. at 929; see also H u d s o n v. Palmer, 468 U.S. 517, 533 (1984). Holland cannot establish this third e le m e n t because W is c o n s in law provides tort remedies to individuals whose p ro p e rty has been converted or damaged. See W is . Stat. § 893.51. W h e n state law p ro vid e s an adequate post-deprivation remedy for redressing property damage, due p ro c e s s has been satisfied. Parratt v. Taylor, 451 U.S. 527, 543-44 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). Here,

H o lla n d 's complaint does not indicate that his stereo was damaged pursuant to an a u th o riz e d procedure or that he pursued state tort remedies. Therefore, a due p r o c e s s claim based on damage to Holland's stereo fails. H o lla n d 's seventh and eighth claims suggest that he was singled out by the C ity for traffic stops and citations (perhaps in retaliation for his filing of a claim with the City regarding damage to his stereo ­ this point is unclear). Construed liberally, th e s e assertions may raise an equal protection claim under the Fourteenth A m e n d m e n t. Equal protection claims involve charges that members of a vulnerable g ro u p were singled out for unequal treatment or charges that a law or policy makes irra tio n a l distinctions between groups. Esmail v. Macrane, 53 F.3d 176, 178 (7th Cir. 1 9 9 5 ). Though difficult to prove, a plaintiff may bring an equal protection claim as a "class of one." McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004). A n equal protection claim of this kind may be brought where: 1) the plaintiff alleges -7-

th a t he has been intentionally treated differently from others similarly situated; and 2 ) there is no rational basis for the difference in treatment or the cause of the d iffe re n tia l treatment is a "totally illegitimate animus" toward the plaintiff by the d e fe n d a n t. Id. Holland does not allege in these claims that he was singled out b a s e d on his race, he merely alleges that he was singled out in general, or that he w a s singled out because he filed a claim with the City. Therefore, any equal

p ro te c tio n claim alleges only that he is a "class of one," irrationally targeted for traffic s to p s and citations. However, he fails to establish that he was treated differently th a n others similarly situated because he does not point to any "similarly-situated" p e rs o n or allege that he was issued citations by the City for reasons of a personal n a tu re unrelated to the City's legitimate enforcement activities. Thus, his claim is le g a lly frivolous. H o lla n d 's ninth claim fails to state a claim upon which relief may be granted in alleging that the City tried or did "put him behind bars" while a white alderman who "p u t a man in a coma" had his case dropped. However, the presumption about c r im in a l prosecutions is that they are undertaken in good faith and without d isc rim in a to ry purpose. United States v. Falk, 479 F.2d 616, 620 (7th Cir. 1973). To o ve rc o m e this presumption, a plaintiff must prove that the decision to prosecute him w a s based on an impermissible consideration, such as race, religion, or an attempt to penalize exercise of his constitutional rights. United States v. Niemiec, 611 F.2d 1 2 0 7 , 1209 (7th Cir. 1980). Holland fails to allege any impermissible basis for his p ro s e c u tio n . Holland's statement that charges against a white individual were -8-

d ro p p e d , while charges against him for unrelated conduct were not, is insufficient to s ta te a claim. H o lla n d 's final claims, claims Ten and Eleven, similarly fail to avoid frivo lo u s n e s s or to present a claim upon which relief may be granted. Holland first a s s e rts that he was not hired by the City, without providing any further detail or a lle g a tio n . However, the bare fact that an employer does not hire an applicant does n o t give rise to a legal claim. Holland next asserts that he was issued citations for "d rivin g while black in W is c o n s in ," which may suggest that he was selectively pulled o ve r and issued traffic citations because he is African-American, though he does not e xp lic i t ly state such a claim. Even if Holland's assertion is construed as a § 1983 c la im , he fails to plead the necessary elements to establish such a claim. M u n ic ip a litie s and other local government units are subject to § 1983 suits, however, th e y are only responsible for deprivation of rights pursuant to their own policies and c u s to m s , and are not otherwise answerable for the torts of their employees. Monell v . Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978). Municipalities can only be s u e d under § 1983: 1) for an express policy that causes a constitutional deprivation; 2 ) for a widespread practice that, although not authorized by written law or express m u n ic ip a l policy, causes a constitutional deprivation and is so permanent and well s e ttle d as to the constitute a custom and usage with the force of law; or 3) for an a lle g a tio n that the constitutional injury was caused by a person with "final p o lic ym a k in g authority." Baxter v. Vigo County School Corp., 26 F.3d 728, 734-35 (7 th Cir. 1994). Holland fails to assert any type of policy or custom of depriving -9-

in d ivid u a ls of their constitutional rights by the City of Milwaukee in its issuance of c ita t io n s . H o lla n d 's only remaining claims are those against his estranged wife, J a c q u e lin e Brown Holland. However, the court does not have subject matter

ju ris d ic tio n over these claims and declines to exercise supplemental jurisdiction. F e d e ra l courts are courts of limited jurisdiction and may only exercise jurisdiction in a case when that jurisdiction is "specifically authorized by statute." Newell Operating C o ., v. Int'l Union of United Auto., Aero., & Agric., Implement Workers of Am., 532 F .3 d 583, 587 (7th Cir. 2008). However, Holland cannot establish jurisdiction under § 1331 because his claims against Mrs. Holland do not arise under any federal laws, tre a tie s , or the United States Constitution. Jogi v. Voges, 480 F.3d 822, 825 (7th Cir. 2 0 0 7 ). Instead, Holland's claims against his wife seem to allege that his state child s u p p o rt order is unfair and that Mrs. Holland's attempts to enforce the order lead to "e x tre m e mental, physical, and emotional distress." (Pl.'s Compl. 4). These

a s s e rtio n s do not constitute a federal claim and, if anything, allege a state law claim. A d d itio n a lly , Holland cannot establish jurisdiction under § 1332 because he does not d e m o n s tra te that he and his wife are citizens of different states and that the amount in controversy exceeds $75,000. On the contrary, Holland's complaint suggests that b o th he and his family reside within the state of W is c o n s in . The Federal Rules of C ivil Procedure require a court to dismiss an action if the court "determines at any tim e that it lacks subject-matter jurisdiction." Fed. R. Civ. P. 12(h)(3). Holland fails to state any valid federal claims and the court lacks subject matter jurisdiction over -10-

h is remaining claims. Even if he did state a valid federal claim, his claims against M rs . Holland are unrelated to any of his asserted federal claims and the court would d e c lin e to exercise supplemental jurisdiction over them. See 28 U.S.C. § 1367(c)(3); s e e also Groce v. Eli Lilly & Co., 193 F.3d 496, 500 (7th Cir. 1999) (noting that d is tric t courts have discretion to refuse jurisdiction over state law claims). Therefore, the court will dismiss Holland's action in its entirety. A c c o r d in g ly , IT IS ORDERED that the plaintiff's motion for leave to proceed in forma p a u p e ris (Docket #2) be and the same is hereby DENIED; IT IS FURTHER ORDERED that the case is hereby DISMISSED without p r e ju d i c e . T h e clerk of the court is directed to enter judgment accordingly. D a te d at Milwaukee, W is c o n s in , this 25th day of June, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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