Balele, Pastori v. Olmanson, Andrea et al
Filing
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ORDER denying plaintiff's 17 Motion to Disqualify Judge and granting the 6 Motion to Dismiss filed by defendants Department of Workforce Development, Mark Gottlieb, Department of Transportation, Department of Administration, Mike Huebsch, Cathy Stepp, Department of Health Services, Stephanie Smiley and Department of Natural Resources and dismissing the complaint as to those defendants. Signed by District Judge Barbara B. Crabb on 4/24/2014. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - PASTORI M. BALELE,
OPINION AND ORDER
Plaintiff,
13-cv-783-bbc
v.
ANDREA OLMANSON, BOB CONNOR,
DEPARTMENT OF CORRECTIONS,
DEPARTMENT OF WORKFORCE
DEVELOPMENT, EDWARD F. WALL,
GARY HAMBLIN, J.B. VAN HOLLEN,
JACK LAWTON, JEAN NICHOLS,
JERRY SALVO, SCOTT WALKER,
STEPHEN A. HERJE, THOMAS PIERCE,
MARK GOTTLIEB, DEPARTMENT OF
TRANSPORTATION, DEPARTMENT
OF ADMINISTRATION, MIKE HUEBSCH,
CATHY STEPP, DEPARTMENT OF
HEALTH SERVICES, STEPHANIE
SMILEY and DEPARTMENT OF NATURAL
RESOURCES,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Pastori Belele brought suit in state court against defendants Andrea
Olmanson, Bob Connor, Department of Corrections, Department of Workforce
Development, Edward F. Wall, Gary Hamblin, J.B. Van Hollen, Jack Lawton, Jean Nichols,
Jerry Salvo, Scott Walker, Stephen A. Herje, Thomas Pierce, Mark Gottlieb, Department of
Transportation, Department of Administration, Mike Huebsch, Cathy Stepp, Department
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of Health Services, Stephanie Smiley and Department of Natural Resources, contending that
the state Departments of Corrections, Workforce Development, Transportation,
Administration, Health Services and Natural Resources engaged in practices intended to
deny jobs to blacks. Plaintiff asserted claims under the United States Constitution and the
Wisconsin Constitution, as well as claiming that he had been denied public accommodations
and subjected to malicious prosecution. (Plaintiff also lists 42 U.S.C. § 1983 as a source of
his claims, but that statute “is not itself a source of substantive rights; instead it is a means
for vindicating federal rights conferred elsewhere.” Ledford v. Sullivan, 105 F.3d 354, 356
(7th Cir. 1997). In this case, § 1983 provides the means by which plaintiff is asserting his
claims under the United States Constitution.)
On November 7, 2013, all of the defendants removed the case to this court.
Defendants Andrea Olmanson, Bob Connor, Department of Corrections, Edward F. Wall,
Gary Hamblin, J.B. Van Hollen, Jack Lawton, Jean Nichols, Jerry Salvo, Scott Walker,
Stephen A. Herje and Thomas Pierce chose to answer the complaint.
Defendants
Department of Workforce Development, Mark Gottlieb, Department of Transportation,
Department of Administration, Mike Huebsch, Cathy Stepp, Department of Health
Services, Stephanie Smiley and Department of Natural Resources filed a motion to dismiss
on various grounds. That motion is before the court for decision.
Also before the court is plaintiff’s motion to disqualify this court from hearing this
case. This motion will be denied, for two reasons. First, as plaintiff knows, the Court of
Appeals for the Seventh Circuit has prohibited him from filing any motions of his own unless
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he meets certain conditions, “including payment of more than $5000 in costs awarded in
five specified cases and a sworn affidavit from plaintiff certifying that the matters raised in
the proposed matter are not frivolous.” Balele v. Burnett, Case No. 96-1133 (7th Cir. Apr.
29, 1997). Second, I repeat what I have said before in two earlier cases brought by plaintiff:
I will deny plaintiff’s motion [for my recusal] because no reasonable person
would perceive a significant risk that I will resolve the case on a basis other
than the merits. Plaintiff essentially infers that any negative ruling against him
is based on my bias rather than the merits of his case. At best, he misinterprets
what I have stated in his previous hearings. At worst, his recollected gloss of
my statements implies that I routinely make racist statements in open court.
If that were true, other litigants would have raised the issue long ago. No one
has. What plaintiff’s history in the court shows is that he has filed several
lawsuits for employment discrimination that have been dismissed, and these
rulings have been affirmed by the court of appeals. E.g., Balele v. Klauser,
Nos. 94-1117, 94-2777, 95-1137 and 95-2948 (7th Cir. Jan. 11, 1996)
(upholding decision that plaintiff’s qualifications resulting from his job
experience in Africa were not “comparable to running a county the size and
complexity and diversity of Milwaukee County”). In any case, the fact that
I have ruled against plaintiff in previous cases is not a reason for recusal.
Liteky v. United States, 510 U.S. 540, 555 (1994) (judicial rulings alone
almost never constitute a valid basis for a bias or partiality motion); United
States v. Slaughter, 900 F.2d 1119, 1126 n.5 (7th Cir. 1990) (bias and
prejudice must be personal, not based on particular judicial proceeding).
Balele v. Wisconsin Department of Revenue, 2013 WL 3967885, *1 (July 31, 2013)
(quoting Balele v. PDQ Food Stores, Case No. 13-cv-171-bbc, dkt. #31, at 3-4 (July 15,
2013)).
OPINION
Plaintiff contends that all of the defendants denied him equal protection and due
process because of his race, in violation of the federal and state constitutions. He alleges that
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defendant departments and their heads have abused their power over the years to deny
blacks, and plaintiff in particular, due process, equal right to employment, equal protection
and public accommodation in the form of access to public buildings and services and that
they engaged in this discrimination because the administrators of those departments believe
that blacks are intellectually inferior to whites and should not be hired for classified
supervisory positions.
Plaintiff alleges that he has been denied not only jobs but an opportunity to view the
notes and recommendations of the persons who interviewed the various candidates. He
believes that the defendant departments make offers to candidates before the interviewing
process, thereby denying the listed jobs to black applicants like him.
Plaintiff seeks as relief an order requiring defendants to hire him in any one of the
positions for which he applied over the last three years; back pay and benefits he would have
received had he been hired; punitive damages for his pain, humiliation and suffering; his
costs and fees incurred in prosecuting this case; reparation for all blacks who have been
denied state government positions and promotions in the last 20 years; an order requiring
the Department of Workforce Development to accept and investigate the complaints of
discrimination that he and other disadvantaged persons file; and an order directing the
federal government to cut the funding for the Department of Workforce Development if the
department continues to refuse to accept and investigate discrimination complaints.
Plaintiff includes a claim of “malicious prosecution” in his complaint but he says
nothing about this claim in the body of his complaint. He may be referring to a petition
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brought by the Department of Corrections in 2011 to enjoin him from harassment, which,
according to plaintiff, was dismissed by the state court. Cpt., dkt. #2-4 at 4-5. Because the
Department of Corrections filed an answer to plaintiff’s complaint and is not one of the
defendants moving to dismiss the suit, I will defer any discussion of malicious prosecution
for now.
Defendants have moved to dismiss the action against them on a number of grounds.
They start with the claims against the defendant state agencies, which they say cannot be
maintained because state agencies are not “persons” under 42 U.S.C. § 1983 and that
plaintiff may pursue a claim for money damages under § 1983 only against a “person.” Will
v. Michigan Department of State Police, 491 U.S. 58, 71 (1989); see also Arizonans for
Official English v. Arizona, 520 U.S. 43, 69 (1997) (Ҥ 1983 creates no remedy against a
State”); Burks v. Wisconsin Department of Transportation, 368 F. Supp. 2d 914, 919
(W.D. Wis. 2005), aff’d, 464 F.3d 744 (7th Cir. 2006).
Defendants are correct. Not only are state agencies not “persons” subject to suits for
monetary damages under § 1983 but state officials sued in their official capacities are not
either. Will, at 71 (“suit against a state official in his or her official capacity is not a suit
against the state official but rather is a suit against the official’s office”).
Plaintiff argues that the holding in Lapides v. Board of Regents of University System
of Georgia, 535 U.S. 613 (2002), defeats defendants’ effort to escape liability under § 1983.
In Lapides, the plaintiff was a university professor who sued the board of regents in state
court, alleging that university officials had placed allegations of sexual harassment in his
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personnel file. The board removed the case to federal court, contending that it continued to
enjoy Eleventh Amendment immunity after the removal. The district court ruled against the
board; the court of appeals reversed; and the Supreme Court held that the state, in the form
of the board of regents, necessarily waived its right to immunity when it removed the case to
federal court. The Court said that it would be anomalous for a state to both invoke federal
jurisdiction by removing a case to federal court and at the same time, claim Eleventh
Amendment immunity, “thereby denying that the ‘Judicial power of the United States’
extends to the case at hand.” Id. at 619. This case does not help plaintiff because the Court
made it clear in Lapides that its holding applied only to state law claims and not to federal
claims brought under 42 U.S.C. § 1983 seeking money damages. “[Plaintiff’s] only federal
claim arises under 42 U.S.C. § 1983, that claim seeks only monetary damages, and we have
held that a State is not a ‘person’ against whom a § 1983 claim for money damages might be
asserted.” Id. at 617 (citing Will, 491 U.S. at 66).
By itself, the holding in Lapides would not prevent plaintiff from proceeding on a state
law claim against a state agency or state employees in their official capacities, but the holdings
in other cases would do so. Wisconsin state law prevents him from seeking money damages
on such a claim, as I noted recently in another case brought by plaintiff, Balele v. Wisconsin
Department of Revenue, 2013 WL 3967885, *5. First, Wisconsin’s constitution does not
authorize suits for money damages except in the context of a takings claim. W.H. Pugh Coal
Co. v. State, 157 Wis. 2d 620, 634-35, 460 N.W.2d 787, 792-93 (1990) (allowing suit
against state for money damages for alleged unconstitutional taking of property under article
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1, section 13 of state constitution, which requires state to provide “just compensation” when
property is taken). Plaintiff has not alleged a taking of property. Second, principles of
sovereign immunity prohibit federal courts from enjoining state officials under state law.
Balele, 2013 WL 3967885 *5 (citing Pennhurst State School and Hospital v. Halderman,
465 U.S. 89, 101 (1984)) (suit brought in federal court against state or against state officials
in their official capacities is barred whether plaintiff seeks damages or injunctive relief).
Will would not prevent plaintiff from bringing § 1983 claims for money damages
against state employees in their individual capacities for ongoing violations of the federal
constitution or laws. However, plaintiff has not alleged that any of the moving defendants
(Gottlieb, Huebsch, Stepp or Smiley) took any actions in their individual capacities to
deprive him of a federal or state right that would make them liable to him for money
damages. And, because § 1983 does not recognize supervisory liability for governmental
bodies or government employees, these defendants cannot be held liable for the actions of
agency employees unless they were involved personally in the same actions. Id. at 168 (citing
Monell, 436 U.S. at 692 (language of § 1983 cannot be read easily to impose liability
vicariously on basis of employer-employee relationship with tortfeasor)).
Finally, plaintiff has alleged the denial of public accommodation, but he leaves this
claim unexplained except to say that he has been denied access to government buildings and
services because of his race. Apparently he believes that defendant Steven Herje’s refusal to
accept filings can be characterized as a violation of plaintiff’s right to public accommodations.
If so, plaintiff has not explained the basis for his belief, although he took advantage of the
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court’s invitation to submit a surreply brief on the subject. Dkt. #25. Nothing in Title II of
the Civil Rights Act suggests that the Act was intended to cover services from state agencies
or access to those agencies. Plaintiff does not concede this point directly but his reliance on
a state case, Barry v. Maple Bluff Country Club, 221 Wis. 2d 707, 586 N.W.2d 182 (Ct.
App. 1998), which turned on the provisions of Wisconsin’s public accommodation statute,
Wis. Stat. § 106.04, suggests that he found no case law holding that Title II applies to state
government offices.
Plaintiff contended in his complaint that defendant Herje and the
Department of Workforce Development violated Title II of the Civil Rights Act of 1964
when they refused to accept his complaints of discrimination. He made no reference to the
Wisconsin public accommodation statute in his complaint, so case law interpreting that
statute is irrelevant to his claim. He has offered nothing to refute defendants’ argument that
the Act’s identification of those places that the Congress considered to be places of public
accommodation is narrow and specific and does not contain even a hint of an intent to cover
state governmental offices.
Defendant Herje filed an answer to plaintiff’s complaint. He did not move to dismiss
the complaint, so I will not rule on plaintiff’s allegation of Herje’s liability under the Civil
Rights Act. It should be clear to plaintiff from this opinion, however, that Herje cannot be
held liable under the Act for any actions he took involving government services.
The
Department of Workforce Development did move to dismiss and I will grant its motion to
dismiss the complaint against it on this ground and all others alleged by plaintiff.
In addition, I will dismiss all of plaintiff’s claims of violations of the federal
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constitution or state law against all of the other moving defendants.
ORDER
IT IS ORDERED that plaintiff Pastori M. Balele’s motion to disqualify this court from
hearing his case, dkt. #17, is DENIED and the motion to dismiss, dkt. #6, filed by
defendants Department of Workforce Development, Mark Gottlieb, Department of
Transportation, Department of Administration, Mike Huebsch, Cathy Stepp, Department
of Health Services, Stephanie Smiley and Department of Natural Resources is GRANTED
and the complaint is dismissed against these defendants.
Entered this 24th day of April, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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