Borowski v. Voiland et al
Filing
27
ORDER signed by Judge Lynn Adelman on 8/8/18. IT IS ORDERED that the state defendants' motion to dismiss 12 and the Ozaukee County defendants' motion for judgment on the pleadings 16 are GRANTED. IT IS FURTHER ORDERED that Borowski 9;s motion for a stay and for a hearing 10 is DENIED. IT IS FURTHER ORDERED that the Ozaukee County defendants' motion to stay discovery 17 is DENIED as MOOT. FINALLY, IT IS ORDERED that the Clerk of Court shall enter final judgment. (cc: all counsel, plantiff) (jad)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHN K. BOROWSKI, JR.,
Plaintiff,
v.
Case No. 18-C-0009
HON. JOSEPH W. VOILAND, et al.,
Defendants.
DECISION AND ORDER
John Borowski, Jr., proceeding pro se, commenced a civil action under 42 U.S.C.
§ 1983 against various governmental officials in Ozaukee County.1 His claims arise out
of a series of events that are largely unrelated to each other, except that they all involve
proceedings in Ozaukee County Circuit Court. These proceedings are: (1) a childcustody matter involving Borowski and a woman named Valerie Kufrin; (2) a divorce
action and related domestic-abuse-injunction case involving Borowski and Gibson; (3) a
criminal prosecution against Borowski in which the government alleged that Borowski
made a threating Facebook post about a judge on the Ozaukee County Circuit Court;
and (4) a criminal prosecution against Borowski in which the government alleged that
1
Borowski also names his ex-wife, Debran Gibson, as a defendant. However, his
claims are directed at the conduct of the governmental officials rather than Gibson
herself. Although Borowski seems to contend that Gibson is liable under § 1983
because she conspired with some of the governmental defendants, his complaint
includes no factual allegations giving rise to a reasonable inference that she entered
into a conspiracy with these defendants to deprive the plaintiff of his rights. Therefore,
the allegations against Gibson fail to state a claim upon which relief can be granted.
See Cooney v. Rossiter, 583 F.3d 967, 970 (7th Cir. 2009) (“a bare allegation of
conspiracy [i]s not enough to survive a motion to dismiss for failure to state a claim”).
Borowski physically abused a woman named Trisha Sizemore.2
Two groups of
defendants have filed dispositive motions. The defendants who are represented by the
Wisconsin Department of Justice (the judges and the district attorney) have filed a
motion to dismiss the complaint on various grounds.
The remaining governmental
defendants have filed a motion for judgment on the pleadings on various grounds. I
address these motions, along with two administrative motions, in this order.
Initially, I note that Borowski purports to sue a number of non-suable county
agencies, namely, the Ozaukee County Clerk of Court’s Office, the Ozaukee County
Child Support Agency, the Ozaukee County District Attorney’s Office, and the Ozaukee
County Sheriff’s Department. See, e.g., Buchanan v. City of Kenosha, 57 F. Supp. 2d
675, 678–79 (E.D. Wis. 1999). All claims against these defendants will be dismissed.
However, Borowski also names the relevant officials within these agencies as
defendants, namely, the clerk of court and a deputy clerk of court, a child-support
specialist, the county’s district attorney, and the sheriff and the sheriff’s deputies. Thus,
the dismissal of these agencies does not have any substantive import.
The next issue is service of the summons and complaint. All defendants except
Gibson (who has not appeared) move to dismiss on the ground that Borowski has not
properly served them. Borowski has submitted the affidavit of his son, John Borowski
III, who claims to have personally served the summons and complaint on Ozaukee
2
Because Borowski alleges seemingly unrelated claims against different defendants, it
is likely that his claims are not properly joined into a single suit. See Fed. R. Civ. P.
18(a) & 20(a)(2); George v. Smith, 507 F.3d 605, 607–08 (7th Cir. 2007). However,
because all of Borowski’s claims must be dismissed for other reasons, I do not explore
this issue further.
2
County Sheriff James Johnson and his deputies, Nicholas Holzer and Dustin DeSmidt.3
See ECF No. 22-1. However, Borowski III does not claim to have delivered copies of
the summons and complaint to these defendants personally or to have completed
abode service on them. Rather, he states that he left copies of the complaint with
Christian Johnson, a person who worked in the main office of the sheriff’s department.
He then claims that he did this because Sheriff Johnson instructed him to deliver the
summons and complaint to this person.
This, however, is not a valid means of
completing service on any defendant other than Johnson himself. Neither the Federal
Rules of Civil Procedure nor the Wisconsin rules governing service allow service to be
completed on an individual by leaving the summons and complaint with a person at the
individual’s workplace. See Fed. R. Civ. P. 4(e); Wis. Stat. § 801.11(1). The rules do
allow service on an agent “authorized by appointment” to receive service, see Fed. R.
Civ. P. 4(e)(2)(C), but there is no evidence that Holzer or DeSmidt authorized Christian
Johnson to receive service for them. Sheriff Johnson may have authorized Christian
Johnson to accept service for him, but Sheriff Johnson had no authority to appoint
Christian Johnson as an agent for service on Holzer and DeSmidt. See Cardenas v.
City of Chicago, 646 F.3d 1001, 1005–06 (7th Cir. 2011). Thus, I will dismiss all claims
against Holzer and DeSmidt without prejudice for improper service.
As for Sheriff Johnson, I will assume without deciding that he was properly
served. However, the complaint does not allege that he was personally involved in any
3
The Ozaukee County defendants mistakenly argue that the plaintiff himself served the
sheriff and his deputies, and that therefore service was improper under Federal Rule of
Civil Procedure 4(c)(2). See ECF No. 23 at 3. This mistake is understandable, as both
the plaintiff and his son have the same name. However, the affidavit is signed by John
Borowski III, not the plaintiff, John Borowski Jr.
3
of the events giving rise to Borowski’s various claims. See, e.g., Matthews v. City of
East St. Louis, 675 F.3d 703, 708 (7th Cir. 2012) (no liability under § 1983 absent
personal involvement). Nor does the complaint allege plausible claims for failure to train
or any other claim for supervisory liability permitted under § 1983. Therefore, I will
dismiss any potential claim against Johnson for failure to state a claim upon which relief
can be granted.
It is also clear that Borowski did not properly serve defendant Ozaukee County.
Borowski submits an affidavit by a person named Aaron Dyszelski, who states that he
served a copy of the summons and complaint on Ozaukee County by serving Ozaukee
County’s Clerk of Court, Mary Lou Miller. See ECF No. 10-2 at p. 4 of 7. But the
Ozaukee County Clerk of Court has no authority to receive service on behalf of the
county. See Fed. R. Civ. P. 4(j)(2); Wis. Stat. § 801.11(4). Therefore, all claims against
Ozaukee County will be dismissed without prejudice for improper service.
As for the other governmental defendants, Borowski claims that Dyszelski served
some of them. See ECF No. 10-2. These defendants, however, challenge the factual
statements made in Dyszelski’s affidavit. Borowski also contends that those defendants
that Dyszelski has not yet been able to serve have been evading service. He asks that
the court order that service be made on these defendants by the U.S. Marshals Service.
See Fed. R. Civ. P. 4(c)(3).
As explained below, all claims against the remaining
defendants who challenge service and the remaining defendants who allegedly are
evading service must be dismissed for reasons unrelated to service. Therefore, I will
not further explore whether these defendants have been properly served or whether the
4
Marshals Service should be ordered to serve those defendants who have been
allegedly evading service.
I now turn to Borowski’s claims. His first claim arises out of a child-custody
matter involving Borowski and Valerie Kufrin. See Am. Compl ¶¶ 20–33. During this
proceeding, the judge (defendant Sandy A. Williams) appointed a guardian ad litem and
ordered Borowski to pay guardian ad litem fees. Eventually, the judge determined that
Borowski was indigent and ordered Ozaukee County to advance the guardian ad litem
fees. See Wis. Stat. § 767.407(6). In February 2014, the underlying custody case was
transferred to the Milwaukee County Circuit Court.
But on January 29, 2016, a
judgment was entered in Ozaukee County Circuit Court requiring Borowski to reimburse
the county for the guardian ad litem fees. See Am. Compl. Ex. A, ECF No. 5-1 a p. 10
of 257.
Borowski seems to be alleging that this judgment somehow violates his
constitutional rights and also constitutes a violation of the Fair Debt Collection Practices
Act. Although it is not exactly clear who the intended defendants are, it appears that
they are Judge Williams, the Ozaukee County Clerk of Court (Mary Lou Mueller), and
the deputy clerk who entered the judgment (Carrie Anne Mihalko).
There are a number of reasons why this claim must be dismissed. First, it is
clearly barred by the Rooker-Feldman doctrine because it is complaining of an injury
caused by a state court judgment—the judgment for payment of guardian ad litem fees.
See Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005)
(Rooker-Feldman doctrine prevents lower federal court from exercising subject-matter
jurisdiction over “cases brought by state-court losers complaining of injuries caused by
state-court judgments rendered before the district court proceedings commenced and
5
inviting district court review and rejection of those judgments”).4 Second, none of the
defendants to this claim qualifies as a “debt collector” within the meaning of the Fair
Debt Collection Practices Act.
15 U.S.C. § 1692a(6).
Finally, all of the potential
defendants would be entitled to absolute immunity. See Cooney v. Rossiter, 583 F.3d
967, 970 (7th Cir. 2009).5 Accordingly, all claims based on the order to collect guardian
ad litem fees will be dismissed.
The dismissal will be for lack of subject-matter
jurisdiction based on the Rooker-Feldman doctrine.
Borowski next makes a number of allegations concerning events that occurred
during a divorce case involving him and Gibson and a related civil action that Gibson
brought against him in which she sought and received a domestic-abuse injunction.
See Am. Compl. ¶¶ 34–47. But here it is impossible to detect any colorable federal
claim. Borowski generally alleges that the court sided with Gibson on many issues and
that he did not like the way the court handled the case. But none of these allegations
4
Borowski suggests that the judgment for guardian ad litem fees was non-final and
therefore not appealable, which he believes makes the Rooker-Feldman doctrine
inapplicable. However, under Wisconsin law, an order for payment of guardian ad litem
fees is appealable. See Seiler v. Riha, Nos. 2011AP1319, 2011AP1485, 2013 WL
5225717 (Wis. Ct. App. Sept. 18, 2013) (entertaining appeal from order requiring
reimbursement of guardian ad litem fees). Borowski notes that there is no order
accompanying the judgment, but a judgment is itself appealable. See Wis. Stat.
§ 808.03(1).
5
Borowski contends that the defendants are not entitled to absolute immunity because
they acted “in the clear absence of all [subject-matter] jurisdiction.” See Stump v.
Sparkman, 435 U.S. 349, 356–57 (1978). He contends that they lacked jurisdiction
because, before the judgment for guardian ad litem fees was entered, venue of the
underlying custody case was transferred to Milwaukee County. However, Borowski
cites no authority suggesting that this transfer of venue deprived the Ozaukee County
court of subject-matter jurisdiction to enter an order to collect guardian ad litem fees that
the County paid while the case was pending in its court. Thus, Borowski has not shown
that the defendants acted in the clear absence of all jurisdiction. See also Wis. Stat.
§ 767.407(6) (allowing court to enter a “separate judgment” for reimbursement of
guardian ad litem fees in favor of the county that paid such fees).
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suggest that the defendants deprived him of a federal right. Borowski mentions the
due-process clause, but he does not identify any process to which he was entitled by
federal law but did not receive. Borowski does allege that he was denied hearings on
some motions, see, e.g., Am. Compl. ¶ 83, but a litigant does not have a due-process
right to a hearing on every motion he files in a civil case. Borowski also alleges that the
court would not allow him to represent himself in the divorce case, but there is no
federal constitutional right to self-representation in a civil case. See Pappas v. Philip
Morris USA Inc., No. 16-cv-932, 2017 WL 6629298, at *3 (D. Conn. June 21, 2017).
Borowski also mentions the Second Amendment, but the orders could not have
deprived him of a right under that Amendment.
Moreover, Borowski is complaining about injuries caused by the orders entered
in the divorce case and the domestic-abuse-injunction case, and therefore any possible
federal claim related to these orders would likely be barred by the Rooker-Feldman
doctrine. I say “likely” because Borowski alleges that he was not allowed to appeal one
of the orders entered in that case, see Am. Compl. ¶ 47, and therefore it is possible that
he did not have a “reasonable opportunity to litigate” in state court with respect to this
one order. See Gilbert v. Illinois State Bd. of Educ., 591 F.3d 896, 901–02 (7th Cir.
2010) (noting that exception to Rooker-Feldman doctrine applies where plaintiff was not
afforded a reasonable opportunity to litigate claims in state court). However, because it
is clear that Borowski has no colorable federal claim involving this order or any other
orders in the divorce or the domestic-abuse-injunction case, I must dismiss his
allegations involving these matters for lack of jurisdiction even if the Rooker-Feldman
doctrine does not apply.
See Greater Chicago Combine & Center, Inc. v. City of
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Chicago, 431 F.3d 1065, 1069–70 (7th Cir. 2005) (federal court lacks subject-matter
jurisdiction over purported federal claims that are “insubstantial or frivolous”). I also
note that the domestic-relations exception to federal subject-matter jurisdiction would
bar any claim challenging orders entered in the divorce case.
See Friedlander v.
Friedlander, 149 F.3d 739, 740 (7th Cir. 1998).
Included in his allegations about the divorce case is a single paragraph directed
at defendant Brittany Quaas, who is one of Ozaukee County’s child-support case
workers. Borowski alleges that Quaas “sent out illegal garnishment notices” to collect
child-support payments. Am. Compl. ¶ 86. This claim must be dismissed. First, it is
barred by the Rooker-Feldman doctrine because it is challenging an injury inflicted by a
state-court garnishment order.
See Harold v. Steel, 773 F.3d 884 (7th Cir. 2014)
(holding that Rooker-Feldman bars claims alleging injury caused by state-court
garnishment order). Second, it is barred by the domestic-relations exception to federal
subject-matter jurisdiction because it involves an order ancillary to a child-support order.
See Friedlander, 149 F.3d at 740 (noting that the “penumbra” of the domestic-relations
exception includes proceedings to collect domestic-support obligations). Therefore, all
claims against Quaas will be dismissed for lack of jurisdiction.
Borowski’s third claim involves his criminal prosecution for the Facebook post.6
This prosecution was started after Gibson’s attorney notified the Ozaukee County
Sheriff’s Department that Borowski had made a Facebook post that could be construed
6
When he filed this case, Borowski sought to have this criminal case and the other one
involving Sizemore’s abuse allegations removed to federal court. However, since
Borowski filed his complaint, both criminal cases have been resolved: Borowski was
acquitted of all charges in the Facebook-post case, and the prosecutor dismissed the
charges in the Sizemore case. Thus, Borowski has withdrawn his request for removal.
See ECF No. 25 at 3–4.
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as a threat to Judge Voiland. Borowski attaches a print-out of the Facebook post to his
complaint. It reads as follows:
I’m a white man being deprived of my child for unjust causes. I have
absolutely no criminal record. I barely drink and am constantly subjected
to drug and alcohol tests required by the FRA. Children now 22 and
almost 20 who can attest to my parenting. Who’s with me to riot and loot
the court house. Possibly the judges [sic] neighborhood? I want to really
put a test to “white privilege” and “male” superiority.
I don’t think taking a knee or destroying my own neighborhood will do any
good.
See ECF No. 5-1 at p. 218 of 257. After Deputy Holzer investigated this post and
signed a criminal complaint, defendant Gerol charged Borowski with threatening a judge
and threatening the property of a judge. See id. at pp. 216–17. A jury eventually
acquitted Borowski of both charges.
Borowski alleges that Holzer (who has already been dismissed for lack of proper
service) and Gerol initiated this criminal prosecution to retaliate against him for
exercising his First Amendment right to free speech. The speech at issue was the
Facebook post itself. But a person does not have a First Amendment right to make
threats. See, e.g., United States v. Parr, 545 F.3d 491, 496–97 (7th Cir. 2008).
Obviously, Borowski believes that his post was not a true threat, but this was an issue
for the jury to decide. Id. Holzer and Gerol’s initiating the criminal case and alleging
that the post was a threat could not itself be viewed as an act of First Amendment
retaliation. Therefore, Borowski was not deprived of his First Amendment rights. In any
event, Holzer has already been dismissed from this case for lack of proper service, and
Gerol has absolute immunity. See Brunson v. Murray, 843 F.3d 698, 704 (7th Cir.
2016) (prosecutor has absolute immunity “for signing the charging document itself and
9
initiating a prosecution”). Therefore, all claims relating to the Facebook prosecution will
be dismissed.7
Interspersed within Borowski’s allegations concerning the Facebook post are
allegations about an ex parte restraining order against Borowski that the Ozaukee
County court granted to Gibson. See Am. Compl. ¶¶ 104–110.
Borowski seems to
allege that the court’s granting this restraining order on an ex parte basis deprived him
of due process. Again, however, Borowski is complaining of an injury caused by a
state-court order, and therefore this claim is barred by Rooker-Feldman. Moreover, the
only potential defendant to this claim would be the judge who granted the restraining
order, and this judge is not identified in the complaint and possibly is not a defendant. If
this judge is a defendant, he or she would have absolute immunity. Therefore, any
claims based on this restraining order must be dismissed. Although it is possible that
Borowski intends for Gibson to also be a defendant to this claim, any such claim against
her would fail because Gibson was not a state actor and was not responsible for
providing Borowski with due process. As noted in footnote one of this opinion, any
claim that Gibson conspired with the judge is implausible.
Borowski’s remaining claims involve the criminal prosecution arising out of
Sizemore’s allegation that Borowski physically abused her. See Am. Compl. ¶¶ 120–29.
Borowski alleges that, on December 16, 2017, Sizemore tried to break into his house.
When Borowski caught her trying to break in, Sizemore called the police. When Deputy
7
Borowski also alleges that Judge Voiland, the supposed target of the Facebook post,
encouraged either the sheriff’s deputy or the prosecutor to bring charges against
Borowski based on the post. See Am. Compl. ¶¶ 101–02. However, Voiland’s
encouraging these officials to prosecute Borowski for what Voiland perceived as a
threat would not itself violate any of Borowski’s federal rights.
10
DeSmidt arrived, Sizemore told DeSmidt that Borowski had pushed her one month
earlier. DeSmidt then arrested Borowski for domestic violence. Borowski was charged
with several counts of battery and domestic abuse in connection with Sizemore’s
allegations. See ECF No. 5-1 at pp. 256–57. However, Sizemore later recanted her
allegations of abuse, and the charges against Borowski were dismissed.
Borowski alleges that Deputy DeSmidt did not have probable cause to arrest him
for domestic violence based on Sizemore’s allegation that he had pushed her.
However, I have already dismissed DeSmidt from this case for improper service.
Borowski also seems to allege that the initiation of the criminal prosecution somehow
deprived him of his rights. However, the deputy who signed the criminal complaint as
the complaining witness, Holzer, has also been dismissed for improper service.
Borowski has not named the district attorney who signed the criminal complaint as a
defendant, but even if he had, the district attorney would have absolute immunity.
Brunson, 843 F.3d at 704. Therefore, all claims arising out of the Sizemore prosecution
must be dismissed.
So far, I have discussed only Borowski’s attempts to state federal claims.
However, Borowski also alleges a claim for intentional infliction of emotional distress
under state law. See Am. Compl. ¶¶ 139–41. But because the complaint does not state
any colorable federal claims and the parties are not diverse, I do not have jurisdiction
over this state-law claim.
As explained above, all of
Borowski’s claims will be dismissed.
I have
considered granting Borowski leave to amend to attempt to state a viable federal claim,
but I conclude that no amendment could cure the defects identified above. The lack of
11
proper service on certain of the defendants cannot be cured by an amendment to the
complaint, it is now too late for Borowski to effect proper service, see Fed. R. Civ. P.
4(m), and I will not extend the time for Borowski to complete service. Most of the rest of
Borowski’s claims are barred by jurisdictional doctrines or absolute immunity, and no
amendment to the complaint could cure these problems. To the extent that I have
dismissed parts of the complaint for failure to state a claim, I conclude that granting
Borowski leave to amend would be futile because the underlying federal claims are not
colorable and therefore no amendment could save them. See Foman v. Davis, 371
U.S. 78, 182 (1962) (court may deny leave to amend when the amendment would be
futile). Accordingly, I will direct the Clerk of Court to enter final judgment dismissing this
action in its entirety.
For the reasons stated, IT IS ORDERED that the state defendants’ motion to
dismiss (ECF No. 12) and the Ozaukee County defendants’ motion for judgment on the
pleadings (ECF No. 16) are GRANTED. Defendants Ozaukee County Clerk of Court,
Ozaukee County Child Support Agency, Ozaukee County District Attorney’s Office, and
Ozaukee County Sheriff’s Department are dismissed as parties.
All claims against
Nicholas Holzer, Justin DeSmidt, and Ozaukee County are dismissed without prejudice
for improper service. All claims against Sheriff Johnson are dismissed for failure to
state a claim upon which relief can be granted. All claims based on the order to collect
guardian ad litem fees are dismissed without prejudice for lack of subject-matter
jurisdiction. All claims based on the divorce action, the child-support garnishment, and
the domestic-abuse-injunction and restraining-order cases are dismissed without
prejudice for lack of subject-matter jurisdiction. All claims based on the Facebook post
12
that were not dismissed for improper service are dismissed for failure to state a claim.
All claims based on the Sizemore allegations that were not dismissed for improper
service are dismissed for failure to state a claim.
IT IS FURTHER ORDERED that Borowski’s motion for a stay and for a hearing
(ECF No. 10) is DENIED.
IT IS FURTHER ORDERED that the Ozaukee County defendants’ motion to stay
discovery (ECF No. 17) is DENIED as MOOT.
FINALLY, IT IS ORDERED that the Clerk of Court shall enter final judgment.
Dated at Milwaukee, Wisconsin, this 8th day of August, 2018.
s/Lynn Adelman_______
LYNN ADELMAN
District Judge
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