Luce, Gregory et al v. Town of Campbell, Wisconsin et al

Filing 134

ORDER granting 65 Defendant's Motion for Summary Judgment ; denying 75 Plaintiffs' Motion for Summary Judgment and dismissing without prejudice plaintiff Luce's state law claims. Signed by District Judge William M. Conley on 07/02/2015. (mfh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
_________________________________________________________________________________
GREGORY LUCE and NICHOLAS
NEWMAN,
Plaintiffs,
v.

OPINION AND ORDER
14-cv-046-wmc

TOWN OF CAMPBELL, WISCONSIN and
TIM KELEMEN,
Defendants,
and
COMMUNITY INSURANCE CORPORATION,
Intervening Defendant,
v.
TOWN OF CAMPBELL, WISCONSIN and
TIM KELEMEN,
Third-Party Defendants.
_________________________________________________________________________________
In a prior opinion granting summary judgment in favor of defendants on all but
one of plaintiff Gregory Luce’s federal claims, the court also explained its inclination to
grant summary judgment as to Luce’s remaining First Amendment retaliation claim on
the grounds that defendant Tim Kelemen did not appear to be acting under color of state
law with respect to the events giving rise to that claim. (6/16/2015 Op. & Order (dkt.
#127) 23-28.) Before granting summary judgment, however, the court provided plaintiff
an opportunity to respond as required by Federal Rule of Civil Procedure 56(f). (Id. at

27.) Having reviewed plaintiff’s response (dkt. #130), the court now finds as a matter of
law that Kelemen was not acting under color of state law within the meaning of 42
U.S.C. § 1983. Therefore, the court will grant judgment to Kelemen as to Luce’s First
Amendment retaliation claim as well. Having disposed of plaintiffs’ federal claims, the
court will also decline to exercise its supplemental jurisdiction over Luce’s two claims
alleged against Kelemen under state law. See Groce v. Eli Lilly & Co., 193 F.3d 496, 501
(7th Cir. 1999).
OPINION
In his response, Luce asserts arguments that the court already considered and
rejected. Only two merit additional comment.1 First, Luce contends that Kelemen was
acting under color of state law because he was “on duty” and “used police department
computers and Internet access.” (Pl.’s Rule 56(f) Resp. (dkt. #130) 2.) As the Seventh
Circuit has repeatedly instructed, however, the determination of whether an officer is
acting under color of state law does not turn on whether he is on or off duty at the time
of the alleged violation. “[A]cts committed by a police officer even while on duty and in
uniform are not under color of state law unless they are in some way related to the
performance of police duties.” Gibson v. City of Chi., 910 F.2d 1510, 1516 (7th Cir.
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Luce also points to evidence that Kelemen’s actions were at least motivated in part by
Luce’s exercise of his First Amendment rights in opposing a town Ordinance. (Pl.’s Rule
56(f) Resp. (dkt. #130) 6-9.) While this may well be so, it is not material to the
threshold question of whether Kelemen was acting under color of state law for reasons
explained below. Moreover, plaintiff’s reference to Kelemen’s actions in researching
overpass ordinances and proposing that the Town Board adopt the ordinance at issue (id.
at 3) are also not material since these actions are not the conduct on which Luce relies in
alleging a First Amendment retaliation claim.
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1990) (quoting Briscoe v. LaHue, 663 F.2d 713, 721 n.4 (7th Cir. 1981) (internal citation
and quotation marks omitted). That is why the alleged act of a fire chief in burning
down the dilapidated, out-of-code house of a disgruntled citizen was found not to have
been effectuated under the color of state law. See Honaker v. Smith, 256 F.3d 477, 484-85
(7th Cir. 2001) (“‘[N]ot every action by a state official or employee is deemed as
occurring “under color” of state law’ . . . . Acts by a state officer are not made under
color of state law unless they are related in some way to the performance of the duties of
the state office.”) (quoting Hughes v. Meyer, 880 F.2d 967, 971 (7th Cir. 1989)).
In determining whether Kelemen was acting under color of state law, the court
instead considers “the nature of the specific acts” performed. Latuszkin v. City of Chi.,
250 F.3d 502, 505-06 (7th Cir. 2001) (“The important consideration, however, in
determining whether an officer is acting under color of state law is the nature of the
specific acts performed.”); see also Pickrel v. City of Springfield, Ill., 45 F.3d 1115, 1118 (7th
Cir. 1995) (“Deciding whether a police officer acted under color of state law should turn
largely on the nature of the specific acts the police officer performed, rather than on
merely whether he was actively assigned at the moment to the performance of police
duties.”). As the court previously explained -- and to which plaintiff fails to offer any
meaningful response -- the evidence does not support a finding, or even an inference, that
Kelemen used or displayed his police powers, or otherwise invoked his authority as
sheriff, to carry out any of the alleged retaliatory acts. (See 6/16/15 Op. & Order (dkt.
#127) 25.)

Quite to the contrary, Kelemen was actively hiding his identity.

This

included not using his authority or position in order to gather the necessary personal
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information to sign Luce up for websites or to comment on online forums without a trace
back to the Town, Police Department or him. (Id.) Of course, this does not mean that
what Kelemen did was legal, simply that what he did is not actionable under § 1983.
Finally, Kelemen did not act under color of state law by use of a police department
computer or internet access. As this court previously explained, courts that found the
defendant acted under color of law by his or her use of public resources focused on access
to information peculiar to the defendant’s position. (Id.) Absent a leveraging of one’s public
position, there is no state action.

Indeed, the Haines case cited in the court’s prior

opinion and order provides an extreme example of use of police department resources for
acts outside of the scope of § 1983. (Id. at 26 (citing Haines v. Fisher, 82 F.3d 1503,
1505-06 (10th Cir. 1996)).) Here, too, there is no dispute that Kelemen used the police
department’s computer and internet access to review publically-available information.
However far he fell short of the expectations of a professional police officer, much less the
standards of a supervising officer, he did not act under color of state law.
Second, Luce contends that Kelemen was acting under color of state law because
his retaliatory conduct “related in some way to the performance of a police duty.” (Pl.’s
Rule 56(f) Resp. (dkt. #130) 4 (quoting Gibson, 910 F.2d at 1516-17).) Even inferring
that Kelemen’s motivation in engaging in the retaliatory acts was somehow job-related -- in
other words, he sought to distract Luce from his efforts to harass police officers or to rally
opposition to the Ordinance, rather than a juvenile attempt at revenge -- the court’s focus
in determining whether Kelemen acted under color of state law must be on the nature of

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Kelemen’s actions, just as it was the focus of the Seventh Circuit in considering the
actions of a fire chief who set fire to a house in Honaker.
That Kelemen may have believed he was acting in his employer’s interest -misguided as that belief would have been -- is not enough to find that his actions fall
under the color of state law. See Ector v. Powell, No. IP-00-20-C-B/S, 2002 WL 356704,
at *4 (S.D. Ind. Mar. 1, 2002) (“The color of law analysis does not turn on the desires or
motivating factors, but on the means by which the constitutional injuries are carried
out.”); cf. Walker v. Taylorville Corr. Ctr., 129 F.3d 410, 414 (7th Cir. 1997) (relying on
the fact that defendant was able to take certain actions “solely because of the position of
authority she enjoyed,” and disregarding defendant’s argument that actions were taken
“in pursuit of her own interest”); Simmons v. City of Evanston, No. 89 C 9421, 1992 WL
25712, at *8 (N.D. Ill. Jan. 31, 1992) (concluding that officer acted under color of state
law “even though motivation was personal,” because “in order to accomplish his desired
result, he invoked the authority of his office”); Grimball v. New Orleans City, No. 10-3657,
2012 WL 1397678, at *10 (E.D. La. Apr. 23, 2012) (“Although a private pursuit by a
police officer does not constitute state action, the reasons motivating an officer’s actions
are generally irrelevant. Therefore, the Court focuses not on the subjective intent of
[defendant] in allegedly plotting the confrontation with [plaintiff], but rather focuses
upon the content of [defendant’s] actions and their context in relation to [plaintiff].”
(internal citation omitted)).

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For all of these reasons, the court concludes that no reasonable jury could find
that Kelemen’s actions fall under color of state law.

Therefore, the court will grant

judgment to Kelemen on Luce’s First Amendment retaliation claim.
This leaves only plaintiff’s request that the court exercise supplemental
jurisdiction over his state law claims. The court will decline that request for at least two
reasons. First, the focus of the court’s opinions to date have been on the legal merits of
plaintiffs’ First Amendment claims.

While this court is now familiar with the facts

surrounding plaintiff Luce’s state law claims, the record is largely undisputed and not at
all complex. Accordingly, a state court should have no problem becoming familiar with
those facts. Second, the state law claims appear to turn on questions peculiar to state
law. For example, a state court is in the best position to apply the notice requirement of
Wis. Stat. § 893.80, as well as define the scope of the privacy interests covered by Wis.
Stat. § 995.50(2)(a). Consequently, the state court system is in a better position than
this court in deciding the merits of those claims.

ORDER
IT IS ORDERED that:
1) Defendant Tim Kelemen’s motion for summary judgment (dkt. #65) is
GRANTED as to (a) plaintiff Gregory Luce and Nicholas Newman’s First
Amendment free speech and freedom of assembly claims (first and second
causes of action in the amended complaint) and (b) plaintiff Gregory Luce’s
First Amendment retaliation claim, and DENIED AS MOOT in all other
respects.
2) Plaintiffs Gregory Luce and Nicholas Newman’s motion for summary
judgment (dkt. #75) is DENIED as to (a) plaintiffs’ First Amendment free
speech and freedom of assembly claims (first and second causes of action in the
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amended complaint) and (b) plaintiff Gregory Luce’s First Amendment
retaliation claim, and DENIED AS MOOT in all other respects.
3) The court declines to exercise its supplemental jurisdiction over plaintiff
Gregory Luce’s state law claims. Those claims are DISMISSED WITHOUT
PREJUDICE.
Entered this 2nd day of July, 2015.
BY THE COURT:
/s/
________________________________________
William M. Conley
District Judge

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