Carmichael et al v. Bureau of Milwaukee Child Welfare et al

Filing 4

ORDER signed by Judge Rudolph T. Randa on 5/16/2012 DENYING 2 Motion for Leave to Proceed in forma pauperis. By 6/16/2012 Plaintiffs must pay filing fee of $350 OR Carmichael must file a superceding affidavit and request for leave to proceed in forma pauperis, and Kimberly and Desiree must each file an affidavit and request for leave to proceed in forma pauperis. (cc: all counsel, via US mail to Robert, Kimberly, and Desiree Carmichael) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ROBERT M. CARMICHAEL,
and KIMBERLY CARMICHAEL,1
Plaintiffs,
v.

Case No. 12-C-283

TRIAD FINANCIAL CORPORATION,
DOUGLAS J. CARROLL, JR.,
JOSHUA J. BRADY,
MEL FLANAGAN,
GORDON K. AARON,
MILWAUKEE COUNTY CIRCUIT COURT,
WISCONSIN COURT OF APPEALS, District I,
BASS & MOGLOWSKY S.C.,
RALPH ADAM FINE,
KITTY K. BRENNAN,
JOAN F. KESSLER, and
PATRICIA S. CURLEY,
Defendants.
---------------------------------------------------------ROBERT M. CARMICHAEL,

Plaintiff,
v.
Case No. 12-C-284
WISCONSIN DEPARTMENT OF WORKFORCE
DEVELOPMENT,
SERVICE FIRST STAFFING INC.,
MILWAUKEE COUNTY CIRCUIT COURT,
THOMAS COOPER,

1

Because the Plaintiffs in these actions have the same surname, the Court departs from its usual practice of
referring to parties by surname and has used given names for two of the Plaintiffs. No disrespect is intended.

WILLIAM CASSEL, and
STATE OF WISCONSIN,
Defendants.
--------------------------------------------------------------

ROBERT M. CARMICHAEL,

Plaintiff,
Case No. 12-C-285
v.
DENEEN F. MCCLINTON, and
SUE L. COLBURN,
Defendants.
------------------------------------------------------------ROBERT M. CARMICHAEL,
KIMBERLY CARMICHAEL, and
DESIREE R. CARMICHAEL,
Plaintiffs,
v.

Case No. 12-C-319

BUREAU OF MILWAUKEE CHILD WELFARE,
SCOTT PHILLIPS,
MATTHEW TORBENSON
SUED AS MATT TORBENSON,
JANE CARROLL,
JEFFREY A. WAGNER,
CHARLOTTE BOOKER,
MILWAUKEE COUNTY,
CIRCUIT COURT MILWAUKEE
COUNTY,
CHILDREN’S COURT CENTER,
2

DONALD JOSEPH,
KEITH O’DONNELL,
STEVE WELLS,
JUSTIN CARLONI,
PATTI WABITSCH,
MICHAEL J. HICKS,
DENNIS G. PURTELL,
MARK A. SCHOENFELDT,
PROFESSIONAL SERVICES GROUP INC.,
SARA WOITEL,
“MILWAUKEE COUNTY
POLICE DEPARTMENT,” 2
MILWAUKEE COUNTY DISTRICT
ATTORNEY’S OFFICE,
STATE OF WISCONSIN, and
JOHN DOES sued as “Unknown Others,”
Defendants.

DECISION AND ORDER

This Decision and Order addresses four actions filed by pro se Plaintiff Robert
M. Carmichael (“Carmichael”) — Case Numbers 12-C-283, 12-C-284, 12-C-285, 12-C-319
(the “283 action,” the “284 action,” the 285 action,” and the “319 action,” respectively). In
the 283 action Kimberly R. Carmichael (“Kimberly”) is also a pro se Plaintiff. In the 319
action, both Kimberly and Desiree R. Carmichael (“Desiree’) are pro se Plaintiffs. In bringing
these actions, Carmichael and his co-plaintiffs invoke the Court’s jurisdiction under 28 U.S.C.

2

There is no “Milwaukee Country Police Department.” Given the address that the Plaintiffs have provided
for the entity, it appears that the Plaintiffs intended to name the City of Milwaukee Police Department (the “MPD”)
as a Defendant.

3

§ 1331, which provides for federal district courts jurisdiction over matters “arising under the
Constitution, laws, or treaties of the United States.” 3
No filing fee has been paid by any of the Plaintiffs. Instead, on May 10, 2012,
Carmichael filed an affidavit and request to proceed without prepayment of a filing fee, often
referred to as a request to proceed in forma pauperis, in each of the four actions. Carmichael,
who is married and has one minor dependent, is not employed. He owns a house worth
$135,000 and has cash or an account(s) with $5,000. He is married. However, he did not
complete the box indicating whether his spouse is employed. He does not list any monthly
expenses. Neither Kimberly nor Desiree filed an affidavit and request to proceed in forma
pauperis.
To authorize a litigant to proceed in forma pauperis, the Court must make two
determinations: first, whether the litigant is unable to pay the costs of commencing the action;
and second, whether the action is frivolous or malicious. 28 U.S.C. §§ 1915(a) and (e)(2).
Carmichael, who is married and has one minor dependent, is not employed. He owns a house
worth $135,000 and has cash or an account(s) with $5,000. He is married. However, he did
not complete portion on the form regarding whether or not his spouse is employed, and if she
is, has not disclosed the amount of her income. Carmichael also has not listed any monthly
expenses. Nonetheless, he indicates that he has $5,000 in cash or bank account, suggesting
that he is able to pay the $350 filing fee for each action. Moreover, neither Kimberly nor

3

The Civil Cover Sheet for each action indicates that the Plaintiff(s) and D efendants are citizens of
W isconsin.

4

Desiree have provided any information regarding their ability to pay the filing fees in the 283
and/or the 319 actions. The Plaintiffs must either pay the $350 filing fee for each action, or
they must each file complete affidavits and request to proceed without prepayment of a filing
fee. Specifically, Carmichael must file a superceding affidavit and request to proceed without
prepayment of a filing fee in the 283 and 319 actions, Kimberly must file an affidavit and
request to proceed without prepayment of a filing fee in the 283 and 319 actions, and Desiree
must file an affidavit and request to proceed without prepayment of a filing fee in the 319
action, as necessary for the Court to proceed further with the analysis of the Plaintiffs’
financial abilities to pay the filing fees in the 283 and 319 actions.
However, Carmichael’s ability to pay the filing fee in the 284 and 285 actions
is irrelevant because review of those Complaints reveals a more fundamental problem – the
lack of subject matter jurisdiction. Federal courts are courts of limited jurisdiction. Int’l
Union of Operating Engineers, Local 150, AFL-CIO v. Ward, 563 F.3d 276, 280 (7th Cir.
2009)(citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Newell
Operating Co. v. Int’l Union of United Auto., Aerospace & Agric. Implement Workers, 532
F.3d 583, 587 (7th Cir. 2008)). Courts have an independent obligation to determine whether
subject-matter jurisdiction exists, even when no party challenges it. Arbaugh v. Y & H Corp.,
546 U.S. 500, 514 (2006).
This obligation is reinforced by the Federal Rules of Civil Procedure: “If the
court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss
the action.” Id. (quoting Fed. R. Civ. P. 12(h)(3)). As the party invoking federal court

5

jurisdiction, Carmichael has the burden of establishing proper federal subject matter
jurisdiction. Muscarello v. Ogle Cnty. Bd. of Com’rs, 610 F.3d 416, 425 (7th Cir. 2010) cert.
denied,

U.S.

, 131 S.Ct. 1045 (2011).

Presumably, Carmichael invokes federal question jurisdiction pursuant to
28 U.S.C. § 1983. To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege
that: 1) he was deprived of a right secured by the Constitution or laws of the United States; and
2) the deprivation was visited upon him by a person or persons acting under color of state law.
Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v.
Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446
U.S. 635, 640 (1980). An individual must personally cause or participate in the alleged
constitutional deprivation in order to be held liable under § 1983. Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009); Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009). The Court is obliged to
give a plaintiff’s pro se allegations, “however inartfully pleaded,” a liberal construction. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
Each of the Complaints states that: “I declare under penalty of perjury that the
foregoing is true and correct.” By declaring under penalty of perjury that the Complaint is
true and signing the document, a plaintiff verifies the Complaint pursuant to 28 U.S.C. § 1746.
Thus, the factual assertions in a complaint which comply with the requirements of Fed. R. Civ.
P. 56(e) are considered as if they were made in an affidavit. See Ford v. Wilson, 90 F.3d 245,
246 (7th Cir. 1996).

6

In the 284 action, Carmichael names as Defendants, the Wisconsin Department
of Workforce Development (the “DWD”); Service First Staffing Inc. (“SFS”); the Milwaukee
County Circuit Court; Thomas Cooper (“Cooper”), a Milwaukee County Circuit Court judge;
William Cassel (“Cassel”), an attorney who represented the DWD in matters involving
Carmichael; and, the State of Wisconsin. The 284 Complaint states that in 2009, Carmichael
was employed by SFS. However, he was also receiving unemployment benefits from a prior
employer. SFS laid Carmichael off and informed the DWD that Carmichael refused to work.
The DWD stopped Carmichael’s unemployment benefits and issued findings that
Carmichael had been overpaid unemployment benefits. On June 17, 2010, Carmichael filed
an action in Milwaukee County Circuit Court challenging the suspension of his unemployment
benefits. He contended, among other things, that the DWD acted without or in excess of its
powers and his benefits were improperly suspended. On July 7, 2010, Carmichael filed
motions to strike the answer and for a more definite statement. Cooper dismissed the
Complaint and affirmed the Labor and Industry determination. However, Cooper did not
decide Carmichael’s motions. Carmichael alleges that the Defendants caused him emotional
distress.
Liberally construed, the 284 action Complaint alleges that Cooper’s affirmation
of the DWD’s determination that Carmichael should not continue to receive unemployment
benefits and his failure to resolve Carmichael’s motions caused him emotional distress.
Despite construing Carmichael’s Complaint liberally and taking all its factual allegations as

7

true, Carmichael has not stated violation of his rights under the United States Constitution.
Therefore, the action is dismissed for lack of subject matter jurisdiction.
Although the Court’s determination that it lacks subject matter jurisdiction
requires dismissal of the 284 action, the Complaint in the 284 action also fails to state claims
against the Defendants. The State of Wisconsin is immune from a suit because it is not a
“person” that can be sued under § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58,
64 (1989). Neither the Circuit Court for Milwaukee County nor the DWD are subject to suit
under § 1983. See Ryan v. Ill. Dep’t of Children & Family Serv., 185 F.3d 751, 758 (7th Cir.
1999). Service First is not a state actor and, therefore based on the allegations of the
Complaint, is not subject to suit under § 1983. Cooper’s conduct is limited to judicial actions
and, therefore, he has judicial immunity from suit. See Stump v. Sparkman, 435 U.S. 349,
356-57 (1978). In addition, no personal involvement in any wrongdoing by Cassell is alleged.
See Iqbal, 556 U.S. at 676; Brooks, 578 F.3d at 580. Because the Court lacks subject matter
jurisdiction over the 284 action and the Complaint fails to state a cause of action against any
Defendant, the action is dismissed without leave to amend.
The precise nature any claim that Carmichael intends to raise in the 285 action
is unclear. The action relates to events regarding the estate of Carmichael’s sister, Shirley
Carmichael (“Shirley”). The 285 Complaint states that Defendant Deneen F. McClinton
(“McClinton”) represented by Defendant Sue L. Colburn (“Colburn”), an attorney, filed a state
court action against Carmichael on March 16, 2010. The state court action alleged that
Carmichael had slandered McClinton and sought $5,000 in damages. Carmichael filed a

8

counterclaim alleging emotional distress and harassment and claiming damages of $5,000.
McClinton dismissed her claim in mediation. Carmichael’s counterclaim was dismissed as
frivolous. Carmichael states that Colburn, on behalf of McClinton, claimed that McClinton
had been named as the personal representative for Shirley’s estate. Carmichael also states
that McClinton took complete control of Shirley’s assets following her death. Carmichael
alleges that the Defendants caused him emotional distress.
Despite a liberal construction of Carmichael’s Complaint in the 285 action, it
does not plausibly state a federal cause of action. Neither Defendant is a state actor, and there
is no alleged action taken under color of state law. Nor has Carmichael alleged any violation
of his federal constitutional rights. Absent a federal cause of action, this Court lacks subject
matter jurisdiction over this action. Therefore, the 285 action is dismissed for lack of subject
matter jurisdiction.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
No later than June 16, 2012, the Plaintiffs must pay the filing fee of $350 per
action for the 283 and 319 actions; or no later that June 16, 2012, in the 283 and 319 actions
Carmichael must file an superceding affidavit and request for leave to proceed in forma
pauperis and Kimberly must file affidavits and requests for leave to proceed in forma
pauperis, and in the 319 action, Desiree must file an affidavit and request for leave to proceed
in forma pauperis.

9

Failure to comply with this Order will result in dismissal of the 283 and/or 319
actions for failure to prosecute.
The 284 action is DISMISSED for lack of subject matter jurisdiction and for
failure to state a claim.
The Clerk of Court is DIRECTED to enter judgment in the 284 action
accordingly;
The 285 action is DISMISSED for lack of subject matter jurisdiction;
The Clerk of Court is DIRECTED to enter judgment in the 285 action
accordingly.
Dated at Milwaukee, Wisconsin this 16th day of May, 2012.
BY THE COURT

______________________
Hon. Rudolph T. Randa
U.S. District Judge

10