Braun v. Abele et al
Filing
29
ORDER signed by Judge J P Stadtmueller on 6/25/15: granting 15 Defendants' Motion for Partial Judgment on the Pleadings; dismissing Milwaukee County, Sheriff David A Clarke, Jr, and Milwaukee County Executive Chris Abele from this action; and, denying as moot 17 Defendants' Motion to Stay Discovery Pending Resolution of their Motion for Partial Judgment on the Pleadings. See Order. (cc: Plaintiff, all counsel)(nm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROBERT C. BRAUN,
Plaintiff,
Case No. 15-CV-252-JPS
v.
CHRIS ABELE, DAVID A. CLARKE, JR.,
BYRON TERRY, MILWAUKEE COUNTY,
REYNALDO HERRERA, and
CASEY PERINE, JR.,
ORDER
Defendants.
1.
BACKGROUND
On Friday, June 6, 2014, Judge Barbara Crabb held that “the Wisconsin
laws banning marriage between same-sex couples are unconstitutional.” Wolf
v. Walker, 986 F.Supp.2d 982, 1028 (W.D. Wis. 2014).1 The next day (Saturday,
that is), the Milwaukee County Courthouse “was officially opened (outside
of its normal business hours) in order to allow any same-sex couples wishing
to do so to apply for marriage licenses and get married at the Courthouse.”
(Docket #16 at 1). The funding to open the courthouse on Saturday was
provided, in whole or in part, by Milwaukee County Executive Chris Abele
(“Mr. Abele”). (See Docket #19 at 5).
While same-sex couples were being married inside the courthouse, the
plaintiff—along with others—was there to oppose and protest the same-sex
marriage licenses being issued (Docket #19 at 5). The plaintiff alleges that
Milwaukee County Sheriff’s Deputy Byron Terry (“Deputy Terry”) interfered
1
The Seventh Circuit affirmed Judge Crabb in Baskin v. Bogan, 766 F.3d 648
(7th Cir. 2014) (a consolidated appeal), and the Supreme Court denied certiorari,
see Baskin v. Bogan, 135 S. Ct. 316 (2014) and Walker v. Wolf, 135 S. Ct. 316 (2014).
with his ability to express his opposition to these marriages and that those in
support of same-sex marriage were not similarly curtailed in their efforts to
support these marriages. Id.
On February 25, 2015, the plaintiff filed suit against Deputy Terry, Mr.
Abele, and Milwaukee County Sheriff David A. Clarke (“Sheriff Clarke”) in
Milwaukee County Circuit Court, alleging that those individuals: (1) violated
the plaintiff’s constitutional rights under the First and Fourteenth
Amendments; (2) violated the Religious Freedom Restoration Act, 42 U.S.C.
§ 2000bb, et seq.; and (3) are guilty of Misconduct in Public Office, under
Wisconsin Statute § 946.12. (Docket #1, Ex. 1). The defendants removed the
case to this Court on March 5, 2015. See 28 U.S.C. §§ 1441 and 1446.
Since removal of this case, the plaintiff has twice amended his
complaint (see Docket #8, #19), and the defendants have twice answered those
amended complaints (see Docket #12, #23). Of note, the plaintiff added three
defendants in his first amended complaint: Milwaukee County (hereinafter
“the County”) and two John Doe Milwaukee County Deputy Sheriffs. (See
Docket #8). Those deputy sheriffs were later identified in the plaintiff’s
second amended complaint as Reynaldo Herrera (“Deputy Herrera”) and
Casey Perine, Jr. (“Deputy Perine”). (Docket #19).
On May 11, 2015, Mr. Abele, Sheriff Clarke, the County, and Deputy
Terry (collectively “the movants”) filed a motion for partial judgment on the
pleadings (Docket #15) and a motion to stay discovery pending resolution of
their motion for partial judgment on the pleadings (Docket #17). Mr. Abele,
Sheriff Clarke, and the County argue that they are entitled to prevail on all
of the claims against them because the plaintiff has failed to allege any
personal involvement by Sheriff Clarke or Mr. Abele, and has failed to allege
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a policy, custom, or practice subjecting the County to Monell liability for the
actions of Deputy Terry. (See Docket #15). The movants also argue that they
are entitled to judgment on the pleadings on the plaintiff’s RFRA and Wis.
Stat. § 946.12 claims because the plaintiff’s allegations fail to state a claim
under either of those statutes. See id.
The Court will grant the movants’ motion for partial judgment on the
pleadings, and deny as moot their motion to stay discovery, for the reasons
stated below.
2.
LEGAL STANDARD—RULE 12(C) MOTIONS
Rule 12(c) “permits a party to move for judgment after the complaint
and answer have been filed by the parties.” Buchanan-Moore v. Cnty. of
Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). “A motion for judgment on the
pleadings is governed by the same standard[] as a motion to dismiss for
failure to state a claim under Rule 12(b)(6),” Adams v. City of Indianapolis, 742
F.3d 720, 727-28 (7th Cir. 2014); specifically, both require that “the complaint
state a claim that is plausible on its face,” Vinson v. Vermilion Cnty., Ill., 776
F.3d 924, 928 (7th Cir. 2015); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Adams, 742 F.3d at 728.
“Factual allegations are accepted as true at the pleading stage, but
‘allegations in the form of legal conclusions are insufficient to survive a Rule
12(b)(6)’” or Rule 12(c) motion. Adams, 742 F.3d at 728 (quoting McReynolds
v. Merill Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir. 2012)); see BuchananMoore, 570 F.3d at 827 (“We view the facts in the complaint in the light most
favorable to the nonmoving party…. However, we need not ignore facts set
forth in the complaint that undermine the plaintiff’s claim or give weight to
unsupported conclusions of law.”). While the plaintiff need not plead
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“extremely specific facts,” Hoskin v. City of Milwaukee, 994 F. Supp. 2d 972,
976 (E.D. Wis. 2014), “[a] complaint must allege facts to support a cause of
action’s basic elements; the plaintiff is required to do at least that much.”
Adams, 742 F.3d at 728.
3.
FACTS AND ALLEGATIONS
On Saturday, June 7, 2014, the day after Judge Crabb overturned
Wisconsin’s state ban on same-sex marriage, over seventy couples were
married at the Milwaukee County Courthouse. See Karen Herzog, Same-sex
Weddings Continue in Wisconsin After Judge Strikes Down Ban, MILWAUKEE
JOURNAL SENTINEL (June 7, 2014), http://www.jsonline.com/news/wisconsin
/37535973-mjs_gaymarriage08p1jpg-b99286470z1-262240081.html. The use
of the courthouse on a non-business day to conduct the same-sex marriage
ceremonies was made possible, in part, by Mr. Abele personally funding the
Saturday business hours. (See Docket #19 at 5); (Docket #23 at 4) (admitting
that “Defendant Chris Abele personally paid for some of the costs associated
with keeping the Courthouse open that day”); see also Herzog, supra
(“Milwaukee County Executive Chris Abele…personally footed the bill for
employee overtime at the courthouse.”).
While the marriage ceremonies were taking place inside the
courthouse, protesters—including the plaintiff—“were picketing on the
south side of the [courthouse] near the water fountain.” (Docket #19 at 8).
The protesters’ purpose “was to promote what the Bible says about gay
marriage being a sin and against God’s law.” Id. Deputy Terry allegedly
ordered the protesters to leave the area by the fountain and “move to the
sidewalk,” threatening to arrest them if they failed to do so. In addition,
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Deputy Terry allegedly would not allow the protesters to enter the
courthouse. Id.
According to the plaintiff, Deputy Terry did not treat the same-sex
marriage supporters in a similar fashion; namely, “[t]here were same-sex
supporters holding signs near the Plaintiff and his group, and they were not
told to move or threatened with arrest.” (Docket #19 at 5); id. at 2 (stating that
“those picketing in favor of same-sex marriage did not receive any threats”);
id. at 8. It is unclear, however, whether same-sex supporters—as opposed to
same-sex couples—were allowed in the courthouse, or were denied access
like the plaintiff and those that were with him (see Docket #19 at 2) (“Deputy
Terry blocked Plaintiff as he attempted to enter the courthouse to see
whether opposite sex couples were also being married.”).
From the foregoing, the plaintiff alleges Fourteenth Amendment due
process and equal protection violations and First Amendment violations
against Deputy Terry. The plaintiff further alleges that Sheriff Clarke is liable
for the conduct of Deputy Terry because he “failed to train [him] to do his
sworn duty to treat all people equally when demonstrating for a political
cause on June 7, 2014.” (Docket #19 at 2). The plaintiff also alleges that
Deputies Perine and Herrera, who were present at the courthouse
(presumably), “should have done more to stop [Deputy] Terry’s repeated
threats to Plaintiff” than simply telling “Deputy Terry to calm down,” id.; the
Court construes this as a failure to intervene claim against Deputies Perine
and Herrera.
In addition, the plaintiff alleges First and Fourteenth Amendment
violations against Mr. Abele for Deputy Terry’s interference with the
plaintiff’s protest, and for “act[ing] without lawful authority when he
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issued marriage licenses to same-sex couples,” id. at 4; see id. at 7 (“…Judge
Crabb made it clear that Defendant Abele had no authority to issue marriage
licenses to same-sex couples, as she had given no order that they be
issued…”). Similarly, the plaintiff avers that Mr. Abele lacked the authority
to “keep open the Milwaukee County Courthouse, a public building, solely
to accommodate same-sex couples [seeking] marriage licenses on June 7,
2014.” Id. According to the plaintiff, Mr. Abele’s conduct “violated the
[p]laintiff’s religious beliefs and voided [his] vote in the referendum in 2006
that struck down gay marriage.” Id.
Rounding out the plaintiff’s constitutional claims, he alleges—as best
the Court can tell—that the County is on the hook for the actions of the
defendants because all of the defendants “acted in concert to trample state
and federal rights secured by the constitution concerning free speech and
freedom to practice religious beliefs.” Id. at 3. And this allegation, taken
together with the plaintiff’s allegation that Sheriff Clarke failed to properly
train Deputy Terry, presumably means that the plaintiff is alleging a Monell
claim against Milwaukee County.
Finally, the plaintiff alleges violations of federal and state statutes.
Namely, he alleges that: (1) the “named [d]efendants acted in concert with
Milwaukee County Sheriff’s Department and Milwaukee County Executive
Chris Abele and are in violation of Wis. Stats. 946.12, Misconduct in Public
Office,” id. at 3; and, (2) Deputies Terry, Perine, and Herrera, Sheriff Clarke,
and Mr. Abele “violated the 1993 Religious Freedom Restoration Act, which
is the [f]ederal statute protecting religious freedoms,” by interfering with the
plaintiff’s right to express his “deeply held religious objections to same-sex
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couples getting married and violating the Bible scriptures that condemn their
conduct,” id. at 4.
4.
DISCUSSION
The Court will now turn to analyzing the movants’ motion for partial
judgment on the pleadings. The Court will first discuss the RFRA and Wis.
Stat. § 946.12 claims collectively, turn next to the Monell claim against the
County, and conclude by discussing the constitutional claims against Sheriff
Clarke and Mr. Abele.
4.1
The Plaintiff Fails to State a Claim Under the RFRA and Wis.
Stat. § 946.12
The movants argue that they are entitled to dismissal of all of the
plaintiff’s claims under the RFRA “because he has plead no facts to support
such a claim.” (Docket #16 at 4). That sentence is the universe of the movants’
argument on this claim. Similarly, the movants argue—this time in a
footnote— that they are entitled to dismissal of the plaintiff’s claims under
Wis. Stat. § 946.12 because that statute “is a criminal statute that is not
applicable in this case.” Id. at 4 n.4. The plaintiff offers even less in his
response in opposition to the movants’ motion, failing to address the
movants’ request for judgment on the pleadings on his RFRA and Wis. Stat.
§ 946.12 claims. (See Docket #21).
To start, the Seventh Circuit has stated that it is not the “responsibility
[of the Court] to research and construct the parties’ arguments.” United States
v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991). That is especially true, here,
since the movants are the parties seeking judgment in their favor. See id.
(“We repeatedly have made clear that perfunctory and undeveloped
arguments, and arguments that are unsupported by pertinent authority, are
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waived…”). So too is a Court under no obligation to research and construct
a plaintiff’s claims from whole cloth, nor formulate opposition to a properly
brought motion, even if a plaintiff is pro se and his or her pleadings must be
construed liberally, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle
v. Gamble, 429 U.S. 97, 106 (1976)).
Notwithstanding the perfunctory nature of the movants’ arguments
in support of its motion, the Court finds that the movants are entitled to
judgment on the pleadings on the plaintiff’s RFRA claim, for two reasons. To
begin, the movants are correct that the plaintiff has failed to allege any facts
to support a RFRA claim against them. It is eminently unclear what actions
the plaintiff believes constitute a violation of the RFRA; nor does the
plaintiff’s second amended complaint plead the basic elements required to
sustain an RFRA claim. See Adams, 742 F.3d at 728.
Which brings the Court to its second—and more important—point,
which is that the plaintiff would not ever be able to meet the statutory
requirements under the RFRA against the movants because the RFRA does
not apply to state governments or state actors. See City of Boerne v. Flores, 521
U.S. 507 (1997); see also O’Bryan v. Bureau of Prisons, 349 F.3d 399, 400-01 (7th
Cir. 2003) (explaining City of Boerne). In City of Boerne, the Supreme Court
held that “application of the RFRA to the states is unconstitutional.” Olsen v.
Mukasey, 541 F.3d 827, 830 (8th Cir. 2008) (citing City of Boerne, 521 U.S. at
511); Cutter v. Wilkinson, 544 U.S. 709, 715 (2005) (“In City of Boerne, this
Court invalidated RFRA as applied to States and their subdivisions, holding
that the Act exceeded Congress' remedial powers under the Fourteenth
Amendment.”).
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If that were not enough, Congress later amended the RFRA’s
definition of “government” to exclude state governments (and thus state
actors) altogether. Olsen, 541 F.3d at 830 (citing Pub. L. No. 106–274, § 7(a)(1),
114 Stat. 806 (2000) (codified at 42 U.S.C. § 2000bb–2)). Thus, actions against
state governments, state actors, etc., are not cognizable under the RFRA. Id.;
see Hutchinson v. Maine, 641 F. Supp. 2d 40, 47 (D. Me. 2009) (noting that a
plaintiff “cannot seek a civil remedy under the RFRA” against state
defendants). Consequently, the movants are entitled to judgment on the
pleadings on this claim.
Turning to the Misconduct in Public Office claim, see Wis. Stat.
§ 946.12, the Court finds— despite the movants’ irksome choice to request
dismissal of this claim in a footnote (see Docket #16 at 4)—that the movants
are entitled to judgment on the pleadings on this claim, as well. The movants
are correct that the statute is a criminal statute and does not, as far as the
Court can tell, give rise to a private cause of action. See Mosay v. Wall,
No. 13-CV-841, 2015 WL 128076, at *8 (W.D. Wis. Jan. 8, 2015) (noting that
§ 946.12 describes a criminal offense and there is nothing to suggest that the
statute gives rise to a private cause of action).
4.2
The Plaintiff’s Monell Claim Against the County Cannot
Proceed
“A local governing body may be liable for monetary damages under
§ 1983 if the unconstitutional act complained of is caused by: (1) an official
policy adopted and promulgated by its officers; (2) a governmental practice
or custom that, although not officially authorized, is widespread and well
settled; or (3) an official with final policy-making authority.” Thomas v. Cook
Cnty. Sheriff’s Dept., 604 F.3d 293, 303 (7th Cir. 2009) (citing Monell v. Dept. of
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Social Svcs. Of N.Y., 436 U.S. 658, 690 (1978)); Justice v. Town of Cicero, 577 F.3d
768, 773 (7th Cir. 2009).
While Monell permits municipalities to be held liable under § 1983, “it
does not allow for liability under § 1983 on a theory of respondeat superior or
vicarious liability.” Hoskin, 994 F. Supp. 2d at 979 (collecting cases). “In other
words, ‘[m]isbehaving employees are responsible for their own conduct,’” id.
(quoting Lewis v. City of Chi., 496 F.3d 645, 656 (7th Cir. 2007)), and “units of
local government are responsible only for their policies, rather than
misconduct by their workers,” Fairley v. Fermaint, 482 F.3d 897, 904 (7th Cir.
2007).
This Court recently noted—when addressing a similar Rule 12(c)
motion—that “Monell claims are subject to the pleading standard set out by
the Supreme Court in…Twombly and Iqbal,” and “boilerplate allegations” or
legal conclusions are insufficient to survive a Rule 12(c) motion. Hoskin, 994
F. Supp. 2d at 977 (citing McCauley v. City of Chi., 671 F.3d 611, 615 (7th Cir.
2011)). Because a Monell claim is complex, more factual specificity is required
to sustain a Monell claim. See McCauley, 671 F.3d at 616-617 (“The required
level of factual specificity rises with the complexity of the claim.”) (citing
Swanson v. Citibank, N.A., 514 F.3d 400, 405 (7th Cir. 2010)). This specificity is
necessary to “satisfy the ‘rigorous standards of culpability and causation’
required for municipal liability.” McTernan v. City of York, PA, 564 F.3d 636,
658 (3d Cir. 2009) (quoting Bd. of Comm’rs of Bryan Cnty. v. Brown, 520 U.S.
397, 405 (1997)).
The County argues that the plaintiff has failed to allege facts sufficient
to support a Monell claim; instead, according to the County, the plaintiff’s
claims “are a series of conclusory statements devoid of facts that do no more
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than assert respondeat superior liability.” (Docket #16 at 7). Specifically, the
County argues that (1) the plaintiff has failed to allege or even imply there is
a County policy that was the driving force behind the alleged constitutional
violations, id. at 8; (2) the plaintiff’s claims all arise from the events of June 7,
2014, and thus, whatever their merit, are not “sufficient to show a pattern of
misconduct, let alone a widespread practice with the force of law,” id. at 10;
and (3) even assuming Sheriff Clarke or Mr. Abele are policymakers for the
purposes of Monell liability, the plaintiff fails to allege any facts against either
individual to support Monell liability, instead “assert[ing] nothing beyond the
fact that Mr. Clarke is the Sheriff…and Mr. Abele is the County Executive
that paid to keep the Courthouse open on Saturday,” id. at 11.
The Court agrees with the County that the plaintiff has failed to allege
a Monell claim, and thus the County is entitled to judgment on the pleadings
on this claim. This is so for a number of reasons. First, it is not even clear that
the plaintiff is alleging a Monell claim in his disjointed second amended
complaint. The County assumes as much—as far as the Court can tell—
because the County was added as a defendant in this action, the plaintiff
alleges that all of the defendants “acted in concert” (Docket #19 at 3), and the
plaintiff alleges that Sheriff Clarke failed to train Deputy Terry, id. at 5.
However, the plaintiff never alleges an express policy, a widespread practice,
or actually makes a single allegation against the County that is not couched
in general terms—i.e. “the named defendants did X.”
Second, assuming, arguendo, that the plaintiff is alleging a Monell
claim, the County is correct that the plaintiff’s second amended complaint
falls woefully short. To wit, and as noted above, the plaintiff’s allegations
“give[] no notice as to the Defendants’ improper conduct” and “fail[] to
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specify the relevant ‘custom’ or ‘policy’” that would sustain a Monell claim.
McTernan, 564 F.3d at 658; see also Town of Cicero, 577 F.3d at 773. Moreover,
while there is no “bright-line rule[] defining a widespread custom or
practice,” Thomas, 604 F.3d at 303, nor a “clear consensus as to how
frequently conduct must occur to impose Monell liability,” id., it is clear that
“it must be more than one instance,” Cosby v. Ward, 843 F.2d 967, 983 (7th Cir.
1988), or even three, Thomas, 604 F.3d at 303 (citing Gable v. City of Chi., 296
F.3d 531, 537 (7th Cir. 2002)). And, here, the plaintiff alleges only a single
incident on June 7, 2014. This alone cannot sustain a Monell claim.2
Third, to the extent that the plaintiff alleges a Monell claim based on
the conclusory statement that Sheriff Clarke failed to train Deputy Terry to
treat people equally, this too is insufficient to sustain a Monell claim for
failure to train. As the County argues, there are no supporting facts to shore
up this claim, nor facts evidencing a “pattern of similar constitutional
violations by untrained employees” which is “‘ordinarily necessary’” for a
Monell claim under that theory. Connick v. Thompson, — U.S. —, 131 S. Ct.
1350, 1354 (2011) (quoting Bryan Cnty., 520 U.S. at 410); see Matthews v. City
of East St. Louis, 675 F.3d 703, 709 (2012) (“[A]n inadequacy in police training
can serve as a basis for liability under Section 1983, but only where the failure
to train amounts to deliberate indifference to the citizens the officers
encounter.”) (citing Hollins v. City of Milwaukee, 574 F.3d 822, 827 (7th Cir.
2009); City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)); cf. Thomas, 604
2
True, the plaintiff alleges some later events concerning the Wisconsin State
Attorney General’s Office, a Milwaukee County Judge, and employees of the City
of Milwaukee, (see Docket #19 at 3), but these events are only tangentially
related—if related at all—to the constitutional violations alleged by the plaintiff.
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F.3d at 306 (“In § 1983 actions, the Supreme Court has been especially
concerned with the broad application of causation principles in a way that
would render municipalities vicariously liable for their officers’ actions.”).
Fourth, to the extent that the plaintiff alleges a Monell claim based on
the actions of policymakers, and assuming Mr. Abele and Sheriff Clarke fit
that description for purposes of Monell, there are simply no allegations that
Mr. Abele or Sheriff Clarke directed the conduct of Deputy Terry, were
aware of his conduct (or similar conduct) and failed to rectify it, or were even
present at the courthouse on June 7, 2014. Again, without more, a Monell
claim on such bare bones allegations cannot proceed. See McTernan, 564 F.3d
at 659.
At bottom, the plaintiff’s Monell claim against the County does not
allege enough “by way of factual content to ‘nudg[e]’ his claim of purposeful
discrimination ‘across the line from conceivable to plausible.’” Iqbal, 556 U.S.
at 683 (quoting Twombly, 550 U.S. at 570). Indeed, the Court is unconvinced
the plaintiff’s allegations are even conceivable.
Thus, for all of the reasons noted above, the County is entitled to
judgment on the pleadings regarding the plaintiff’s Monell claim.
4.3
The Plaintiff’s § 1983 Claims Against Sheriff Clarke and Mr.
Abele Cannot Proceed
Liability under § 1983 “is premised on the wrongdoer’s personal
responsibility,” Kuhn v. Goodlow, 678 F.3d 552, 555-56 (7th Cir. 2012), and thus
“[a]n individual cannot be held liable in a § 1983 action unless he caused or
participated in an alleged constitutional deprivation.” Wolf-Lillie v. Sondquist,
699 F.2d 864, 869 (7th Cir. 1983); see Chavez, 251 F.3d at 651; Gentry v.
Duckworth, 65 F.3d 55, 561 (7th Cir. 1995).
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“The doctrine of respondeat superior cannot be used to hold a
supervisor liable for conduct of a subordinate that violates a plaintiff’s
constitutional rights.” Chavez, 251 F.3d at 651. A supervisor will be found
liable, however, “if the supervisor, with knowledge of the subordinate’s
conduct, approves of the conduct and the basis for it.” Lanigan v. Vill. of E.
Hazel Crest, Ill., 110 F.3d 467, 477 (7th Cir. 1997). This, once again, requires
some personal involvement in the constitutional deprivation, see Chavez,
251 F.3d at 651, but does not require that the defendant “participate directly
in the deprivation.” Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)
(emphasis added). “[S]upervisors who are merely negligent in failing
to detect and prevent subordinates’ misconduct are not liable…. The
supervisors must know about the conduct and facilitate it, approve it,
condone it, or turn a blind eye for fear of what they might see.” Jones v. City
of Chi., 856 F.2d 985, 992 (7th Cir. 1988) (citations omitted); accord Matthews,
675 F.3d at 708; Backes v. Vill. of Peoria Heights, Ill., 662 F.3d 866, 869-870 (7th
Cir. 2011); Chavez, 251 F.3d at 651.
Sheriff Clarke and Mr. Abele argue that the plaintiff has failed to
allege their personal involvement in the events on June 7, 2014—i.e. Deputy
Terry’s alleged interference with the plaintiff’s protest—that give rise to the
plaintiff’s claims against them—namely, violations of the First and
Fourteenth Amendment. (See Docket #16 at 12). Stated another way, the two
defendants argue that because the plaintiff has not alleged they were present
at the courthouse on June 7, 2014, or were aware of (condoned, or turned a
blind eye to) Deputy Terry’s actions, the plaintiff’s allegations “are
insufficient to sustain his claims against Sheriff Clarke and Mr. Abele on
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either a theory of personal liability or on a theory of supervisory liability.”
Id. The Court agrees.
The plaintiff has failed to allege any facts giving rise to personal or
supervisory liability on the part of Sheriff Clarke or Mr. Abele for Deputy
Terry’s actions. Even the affidavits the plaintiff submitted from other
protesters that were with him at the courthouse (see Docket #8-1), describe
events that implicate Deputy Terry alone. And, to the extent that the plaintiff
alleges an amorphous conspiracy by all of those involved to violate his rights
(see Docket #19 at 3), bare allegations made up of legal conclusions, without
further factual support, cannot give rise to § 1983 liability. See Iqbal, 556 U.S.
at 678 (“Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.”); Adams, 742 F.3d at 729
(noting that Iqbal and Twombly “obviously require more than mere notice,”
and thus “[a]n inadequate complaint will not survive a motion to dismiss
simply because the defendants managed to figure out the basic factual or
legal grounds for the claims”).
That is not the end of the story, however. The plaintiff also alleges a
violation of his constitutional rights by Mr. Abele for “issuing marriage
licenses to same-sex couples and by using his personal funds to keep the
Courthouse open outside its normal business hours.” (Docket #16 at 12). Mr.
Abele also moves for judgment on the pleadings on this portion of the
plaintiff’s claim against him, arguing that the plaintiff’s allegations fail as a
matter of law. Id. at 12-13. They fail, that is, because “[t]he Equal Protection
Clause does not, as a matter of law, prohibit the issuance of marriage licenses
to same-sex couples,” but even if it did, the County Clerk issued the marriage
licenses, and not Mr. Abele. Id. at 12. Similarly, Abele argues that there is no
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provision in the constitution—and the plaintiff has not identified one—“that
prohibited Mr. Abele from keeping the Courthouse open over the weekend”
for same-sex marriages. Id. at 13.
Mr. Abele is entitled to judgment on the pleadings on this portion of
the plaintiff’s claim, as well. This is so because the plaintiff has not alleged
that Mr. Abele’s conduct “violated [his] rights, privileges, or immunities
secured by the Constitution or laws of the United States.” Lanigan, 110 F.3d
at 471. By that, the Court means that the plaintiff has not alleged that Mr.
Abele’s actions actually caused him harm, other than personal offense. Nor has
the plaintiff, as far as the Court can tell, identified a law, provision of the
Constitution, or legal precedent which supports his view that Mr. Abele’s
conduct was unlawful.
True, the plaintiff alleges that Mr. Abele’s conduct “violated [his]
religious beliefs and voided [the plaintiff’s] vote in the referendum in 2006
that struck down gay marriages.” (Docket #19 at 7). And Mr. Abele’s conduct
may very well have violated his religious beliefs, but that does not give rise
to a constitutional claim under Section 1983. And it strains credulity to allege
that Mr. Abele’s conduct “voided” the plaintiff’s vote in the 2006
referendum. Indeed, if anyone’s conduct did so—and the Court is not saying
anyone’s did—it was that of Judge Crabb, who struck down Wisconsin’s ban
on gay marriage. But, she is not a defendant in this case, nor could she be,
given that she is entitled to absolute judicial immunity. See Dawson v.
Newman, 419 F.3d 656, 661 (7th Cir. 2005); Dellenbach v. Letsinger, 889 F.2d 755,
759-60 (7th Cir. 1989). And, it is questionable whether what the plaintiff
alleges states a constitutional claim, anyhow. As such, the Court is obliged
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to grant Mr. Abele’s motion for judgment on the pleadings on this portion of
the plaintiff’s claim.
Finally, Sheriff Clarke argues that if the plaintiff is alleging personal
or supervisory liability against him for Deputy Terry’s actions, due to his
alleged failure to train Deputy Terry, this portion of the claim against him
should also be dismissed for the same reasons the Court dismissed the
plaintiff’s failure to train Monell claim. (Docket #16 at 13). The Court concurs;
thus, for the same reasons discussed above concerning the portion of the
plaintiff’s Monell claim alleging a failure to train, the Court will grant Sheriff
Clarke judgment on the pleadings here.
4.
CONCLUSION
Consistent with the foregoing, the Court will grant the movants’
motion for judgment on the pleadings on the following: (1) the RFRA claim
against the movants; (2) the Misconduct in Public Office claim, see Wis. Stat.
§ 946.12, against the movants; (3) the Monell claim against the County; and
(4) the Section 1983 claims—for violations of the First and Fourteenth
Amendment—against Sheriff Clarke and Mr. Abele.
Because Sheriff Clarke and Mr. Abele will be dismissed from this
action, the Court finds it unnecessary to delve into their argument, offered
in the alternative, that they are entitled to qualified immunity on the
plaintiff’s claims against them. (See Docket #16 at 13-15).3
3
The plaintiff offered no opposition to the defendants’ motion for judgment
on the pleadings, except on the issue of qualified immunity. (See Docket #21 at 2).
In that regard, the plaintiff argues that the defendants are “not entitled to qualified
immunity because…this case [was moved] from state court to federal court,” and
“there is no mention of [qualified immunity] in the Constitution.” Id. Because the
Court need not reach the issue of qualified immunity, the Court will shelve
explaining—at length, or otherwise—the fallacy of this argument.
Page 17 of 18
Lastly, and as noted above, the movants filed a motion to stay
discovery pending resolution of the their motion for judgment on the
pleadings. (Docket #17). The Court will deny this motion as moot, given that
the Court has granted the movants’ motion for partial judgment on the
pleadings.
Accordingly,
IT IS ORDERED that Mr. Abele, Sheriff Clarke, the County, and
Deputy Terry’s motion for partial judgment on the pleadings (Docket #15) be
and the same is hereby GRANTED; Sheriff David A. Clarke, Milwaukee
County Executive Chris Abele, and Milwaukee County be and the same are
hereby DISMISSED from this action; and
IT IS FURTHER ORDERED that Mr. Abele, Sheriff Clarke, the
County, and Deputy Terry’s motion to stay discovery pending resolution of
their motion for partial judgment on the pleadings (Docket #17) be and the
same is hereby DENIED as moot.
Dated at Milwaukee, Wisconsin, this 25th day of June, 2015.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
Page 18 of 18
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