Nowicki et al v. Delao et al

Filing 66

ORDER signed by Judge Lynn Adelman on 2/3/12 granting 65 plaintiffs motion to include plaintiffs September 21, 2011 Letter to HUD in the argument section of all briefs filed by plaintiffs; granting defendants' Motions to Dismiss 29 32 37 41 45 . (cc: all counsel, via USPS to plaintiffs) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DAVID A. NOWICKI, and
BARBARA C. TREMEL
Plaintiffs,
v.

Case No. 11-CV-0514

ALICE E. DELAO, et al.,
Defendants.

DECISION AND ORDER
Pro se plaintiffs David Nowicki and Barbara Tremel sue eleven defendants,
including the State of Wisconsin, two Wisconsin assistant attorney generals, two
administrative law judges employed by the Equal Rights Division of the Wisconsin
Department of Workforce Development (“DWD”), the Milwaukee Metropolitan Fair Housing
Counsel (“MMFHC”), two MMFHC attorneys, two employees of the Department of Housing
and Urban Development (“HUD”) and Tunisha Perkins, a disabled individual. Plaintiffs
allege that defendants conspired to manufacture housing discrimination charges against
them for the purpose of extorting money and depriving them of their civil rights. Before me
now are defendants’ motions to dismiss.
Plaintiffs allege that in September 2010, Perkins, with the assistance of MMFHC
attorneys Margaret Bowitz and Megan Wanke, filed disability discrimination complaints
against them with the DWD and HUD. Perkins claims that in December 2009 Nowicki
refused to rent her a house because she is disabled. Tremel is the owner of the house in
question, and Nowicki manages the property for her. The DWD and HUD investigated the

matter, and Wisconsin Assistant Attorney General David Rice reviewed the evidence and
found that there was probable cause to believe that plaintiffs had committed housing
discrimination. Plaintiffs allege that this finding of probable cause was incorrect because
Perkins’ credit history made her ineligible to rent the house, but Perkins accused Nowicki
of refusing to rent the house to her without checking her credit history. So, her credit history
is irrelevant.
As a result of Rice’s review of the case, the DWD notified plaintiffs that it was
instituting an administrative proceeding against them. Around the same time, HUD notified
plaintiffs that its investigation was still ongoing. Pamela Cannon, a HUD representative,
offered plaintiffs the option of settling the case, but plaintiffs declined. In March 2011, the
DWD informed plaintiffs that it would hold a hearing on May 24, 2011. Subsequently,
Nowicki requested a substantial amount of discovery, but he asserts that Chief
Administrative Law Judge Pamela Rasche improperly declined to allow him to conduct
discovery because of his pro se status. After Nowicki complained about this alleged
deprivation of his due process rights, Administrative Law Judge Alice DeLaO adjourned the
hearing. Soon after, plaintiffs commenced the present action. In addition to the individuals
discussed above, plaintiffs named as defendants Wisconsin Assistant Attorney General
David Hart, who agreed to represent Perkins before the DWD, and Thomas Nelson,
Director of Fair Housing and Equal Opportunity at HUD.
Plaintiffs assert some ten claims, all of which must be dismissed. As an initial
matter, plaintiffs’ claims against the State of Wisconsin are barred by the Eleventh
Amendment, see Will v. Mich. Dept. of State Police, 491 U.S. 58, 66 (1989), and plaintiffs’
official capacity claims for damages against Rasche, DeLaO, Rice and Hart must be
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dismissed for the same reason. Additionally, the double jeopardy claim asserted by
plaintiffs in the fact section of their complaint is baseless. Only the DWD has decided to
press charges against plaintiffs at this point, and double jeopardy does not apply in this
context.
In Counts I and II, plaintiffs assert RICO claims under 18 U.S.C. § 1964(c), but
these claims must be dismissed because plaintiffs fail to state facts sufficient to support
them. Plaintiffs fail to allege facts sufficient to support the existence of a conspiracy, the
existence of a RICO enterprise or the existence of a pattern of racketeering activity.
Plaintiffs allege that defendants worked together to commit various crimes, but nothing in
their complaint comes close to supporting this allegation.
In Count III, plaintiffs allege that defendants violated the Fair Housing Act (“FHA”)
by selectively targeting them “and other Wisconsin landlords and rental agents” because
they are white. Plaintiffs fail to state a claim for housing discrimination. The FHA protects
the rights of seekers of housing, not landlords. See 42 U.S.C. § 3604. Also, the FHA
affirmatively required Cannon to investigate and attempt to settle all discrimination
complaints filed with HUD, and that is exactly what Cannon is alleged to have done.
See 42 U.S.C. § 3610.
In Counts IV and V, plaintiffs allege that defendants violated 42 U.S.C. §§ 1981 and
1982 by manufacturing housing discrimination claims against them because they are white.
This claim fails because plaintiffs allege no facts that support a finding that their race was
a factor in defendants’ decision to help Perkins’ file her complaints or to investigate those
complaints. The more plausible explanation for defendants’ actions, based on the facts

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alleged, is that defendants believed that they had probable cause to prosecute plaintiffs
for discriminating against Perkins on the basis of her disability.
In Count VI, plaintiffs bring a claim under 42 U.S.C. § 1983. This claim must be
dismissed for several reasons. First, § 1983 only creates a cause of action against
individuals who act under color of state law, meaning that their conduct can fairly be
characterized as “state action.” See Lugar v. Edmondson Oil Co., Inc. 457 U.S. 922,
928–29 (1982). The only defendants named in the complaint who are state officials are
Rasche, DeLaO, Rice, and Hart. MMFHC is a private, non-profit organization, Perkins,
Bowitz, and Wanke are private citizens, and Cannon and Nelson are federal, not state,
employees. Plaintiffs state no facts suggesting that the defendants who are not state
officials should be treated as state actors. The § 1983 claims against Rasche and DeLaO
must also be dismissed because these defendants are administrative law judges entitled
to absolute immunity for their judicial acts. Butz v. Economou, 438 U.S. 478, 512–13
(1978). Finally, the § 1983 claims against Rice and Hart must be dismissed because
plaintiffs allege no facts which support them. The only allegations against Rice are that he
found that there was probable cause to begin administrative proceedings against plaintiffs
before the DWD, and that he agreed to represent Perkins in that proceeding. The only
allegation against Hart is that he also agreed to represent Perkins in the DWD
proceedings. Plaintiffs provide no reason to believe that Perkins’ complaint was not
supported by probable cause or that the actions of Rice and Hart were in any way unlawful.
Therefore, these allegations do not support a finding that either Rice or Hart deprived
plaintiffs of their civil rights.

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In Count VII, plaintiffs claim that defendants conspired to deprive them of various
constitutional and statutory rights in violation of 42 U.S.C. § 1985. To establish a
conspiracy claim, plaintiffs must allege the existence of an agreement, and “if the
agreement is not overt, ‘the alleged acts must be sufficient to raise the inference of mutual
understanding’ (i.e., the acts performed by the members of the conspiracy ‘are unlikely to
have been undertaken without an agreement.’” Amundsen v. Chicago Park Dist., 218 F.3d
712, 718 (7th Cir. 2000) (quoting Kunik v. Racine Cnty., Wis., 946 F.2d 1574 (7th Cir.
1991)). The factual allegations in the complaint are too vague and conclusory to support
a finding that defendants conspired against plaintiffs. All of defendants’ alleged interactions
with one another are consistent with state and federal law. Perkins exercised her legal right
to file discrimination complaints against plaintiffs with the help of her attorneys, and the
other defendants responded by investigating those complaints and trying to facilitate a
settlement.
In Counts VIII and IX, plaintiffs ask that I declare that the proceedings against
plaintiffs must be dismissed because the Wisconsin Open Housing Law, Wis. Stat.
§ 106.50(2r) ( which outlaws housing discrimination against disabled individuals), and Wis.
Admin. Code DWD § 220.18 (governing discovery in DWD proceedings) are
unconstitutional. However, federal courts are generally prohibited from interfering with
ongoing state proceedings. Younger v. Harris, 401 U.S. 37 (1971). The ongoing proceeding
before the DWD is the proper forum for plaintiffs’ constitutional challenges. See Ohio Civil
Rights Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986).
In Count X, plaintiffs ask me to declare that Tremel cannot be held liable for any of
Nowicki’s acts because Nowicki is an independent contractor. There does not appear to
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be an independent basis for exercising jurisdiction over this claim because it is not based
on diversity and does not raise a federal question. It appears to be a state law claim, and
as such I decline to exercise supplemental jurisdiction over it. See 28 U.S.C. § 1367(c).
For all of the foregoing reasons, I am dismissing Counts I through X of the
complaint. Since plaintiffs have had ample opportunity to explain their case in their
responses to defendants’ five different motions to dismiss, I am dismissing this case
without leave to amend.
THEREFORE, IT IS ORDERED that plaintiffs’ motion to include plaintiffs’
September 21, 2011 Letter to HUD [DOCKET #65] in the argument section of all briefs filed
by plaintiffs is GRANTED.
IT IS FURTHER ORDERED that defendants’ motions to dismiss [DOCKET #29, 32,
37, 41, and 45] are GRANTED.
Dated at Milwaukee, Wisconsin, this 3rd day of February 2012.

s/_______________________
LYNN ADELMAN
District Judge

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