Muhammad, Maryam v. Louis, Beverly et al

Filing 36

ORDER granting 25 Motion to Dismiss filed by defendants Shelia Ashley and John Finger; denying 21 Motion to Dismiss filed by defendants Beverly Louis and Tom Conrad; denying 19 , 35 motions for emergency relief; denying 31 Motion for Assis tance in Recruiting Counsel. Plaintiff's claims against defendants Ashley and Finger are DISMISSED without prejudice for failure to state a claim against them upon which relief may be granted. Signed by District Judge William M. Conley on 5/11/2017. (Attachments: # 1 Procedures for filing motions for injunctive relief) (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

MARYAM E. MUHAMMAD,
Plaintiff,

OPINION and ORDER

v.
15-cv-41-wmc
BEVERLY LOUIS et al.,
Defendants.

On July 12, 2016, this court granted pro se plaintiff Maryam E. Muhammad leave to
proceed on claims that several employees of the City of Madison Community Development
Authority (“CDA”) violated her rights under the constitution and federal law by terminating
her housing benefits without providing due process. Specifically, Muhammad was granted
leave to proceed against defendants Beverly Louis, Tom Conrad, Shelia Ashley and John
Finger.

At the same time, the court denied her leave to proceed against the U.S.

Department of Housing and Urban Development (“HUD”), as none of her allegations
suggested that HUD’s policies or procedures were responsible for the alleged violation of
due process. Plaintiff subsequently filed two motions for emergency injunctive relief (dkts.
##19, 35), seeking an order requiring CDA and HUD to reinstate her Section 8 voucher or
pay her rent until the merits of this case have been decided. She argues that if her benefits
are not reinstated, she may soon be homeless. Finally, she has filed a motion requesting
assistance in recruiting counsel. (Dkt. #31.)
In response to her motion for a preliminary injunction, defendants filed motions to
dismiss. Defendants clarify in their motions that defendants Shelia Ashley and John Finger
are employees of HUD, not CDA, as plaintiff’s complaint implies. These federal defendants

argue that the claims against them should be dismissed for lack of personal jurisdiction
because they were improperly served under Rule 4 of the Federal Rules of Civil Procedure.
The actual CDA employees, defendants Louis and Conrad, also argue that the claims
against them should be dismissed:

under Rooker-Feldman1; under the related doctrine of

claim preclusion; and (3) for failure to state a claim under which relief may be granted.
While the motion to dismiss filed by the federal defendants will be granted, the court
will deny the motion to dismiss filed by the CDA employees. Even so, plaintiff’s request for
emergency relief and for assistance in recruiting counsel must be denied for reasons set forth
below.

OPINION
I.

Motion to Dismiss Filed by Defendants Louis and Conrad
A.

Rooker-Feldman Doctrine

Defendants’ reliance on the Rooker-Feldman doctrine presents the threshold issue of
whether this court lacks subject matter jurisdiction. In reviewing a motion to dismiss for
lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), a court accepts as true the
well pleaded factual allegations found in the complaint, drawing all reasonable inferences in
favor of the plaintiff. Center for Dermatology and Skin Cancer, Ltd. v. Burwell, 770 F.3d 586,
588 (7th Cir. 2014). The court may also “look beyond the jurisdictional allegations of the
complaint and view whatever evidence has been submitted on the issue to determine

The Rooker–Feldman doctrine -- derived from two Supreme Court decisions -- is based upon the
recognition that lower federal courts do not have appellate authority over state courts. Sykes v. Cook
County Circuit Court Probate Division, 837 F.3d 736, 741 (7th Cir. 2016) (citing D.C. Court of Appeals
v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923)).
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whether in fact subject matter jurisdiction exists.” Evers v. Astrue, 536 F.3d 651, 656-57
(7th Cir. 2008).
Under Rooker-Feldman, federal district courts lack jurisdiction over cases challenging
state court judgments rendered before the district court proceedings commenced.

Exxon

Mobil Corp. v. Saudi Indus. Corp., 544 U.S. 280, 284 (2005). If the Rooker-Feldman doctrine
applies, a suit must be dismissed without prejudice under Fed. R. Civ. P. 12(b)(1) for lack of
subject matter jurisdiction. See Frederiksen v. City of Lockport, 384 F.3d 437, 439 (7th Cir.
2004); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”). The relevant question in
determining whether Rooker-Feldman bars a particular claim is whether the plaintiff is seeking
redress for an injury caused by the state court judgment. See Iqbal v. Patel, 780 F.3d 728, 730
(7th Cir. 2015) (“[T]he Rooker-Feldman doctrine asks what injury the plaintiff asks the
federal court to redress.”)
Defendants argue that plaintiff’s due process claims are barred by Rooker-Feldman
because she unsuccessfully litigated the exact same claims in state court. On March 28,
2014, plaintiff filed a petition against defendants Louis and Conrad in Dane County Circuit
Court seeking review of the CDA’s decision to terminate her housing voucher.

See

Muhammad v. Louis, 2014CV947 (Dane Cty. Cir. Ct.).2 Plaintiff alleged in the circuit court
petition that defendants “took the petitioner’s Section 8 Voucher without due process of
the law” during a March 18, 2016, hearing that was held without her. (See dkt. #23-1,
petition). On July 31, 2014, the Dane County Circuit Court issued an order granting the
The court may take judicial notice of matters of public record, including the state court docket,
decisions and documents filed in that action that are publicly accessible. See Gen. Elec. Capital Corp.
v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997).
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defendants’ motion to dismiss the case “[f]or the reasons stated on the record at [a] May 6,
2014 hearing.”

(See dkt. #23-2.)

Plaintiff appealed the circuit court dismissal to the

Wisconsin Court of Appeals, but the court of appeals dismissed her appeal because she
failed to file a brief in support. (See dkt. #23-3.) While that appeal was pending, plaintiff
filed her § 1983 claims in this court.
Although claim preclusion remains a possibility, the court is not persuaded that
Rooker-Feldman applies. Defendants did not submit a transcript from the hearing, so the
court cannot determine the basis for the state court’s dismissal of plaintiff’s claims.
However, the claims on which plaintiff was allowed to proceed in this case are not clearly
based on an injury caused by the state court judgment. For example, this is not a case in
which the plaintiff is asking a federal court to undo a state court garnishment or foreclosure
order.

Rather, plaintiff is alleging injuries caused by defendants’ actions that occurred

before the initiation of her state court case.
Although plaintiff is clearly hoping for a different result than she achieved in state
court, she is not asking this court to review the state court’s decision.

Under these

circumstances, Rooker-Feldman does not clearly apply. See Iqbal, 780 F.3d at 730 (“[I]f a

plaintiff contends that out-of-court events have caused injury that the state judiciary
failed to detect and repair, then a district court has jurisdiction.”). Therefore, the court
will deny the motion to dismiss on Rooker-Feldman grounds.

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B.

Claim Preclusion

Defendants Louis and Conrad’s assertion that plaintiff’s claims are barred by claim
preclusion is a stronger one, though ultimately not successful on this record.3 In Wisconsin,
the doctrine of claim preclusion holds that “a final judgment is conclusive in all subsequent
actions between the same parties as to all matters which were litigated or which might have
been litigated in the former proceedings.” Menard, Inc. v. Liteway Lighting Prods., 2005 WI
98, ¶ 26, 282 Wis. 2d 582, 698 N.W.2d 738 (emphasis added).

Wisconsin law requires

the following essential elements for claim preclusion to apply: (1) an “identity between the
parties or their privies in the prior and present suits”; (2) that the “prior litigation resulted
in a final judgment on the merits by a court with jurisdiction”; and (3) an “identity of the
causes of action in the two suits.” Sopha v. Owens-Corning Fiberglass Corp., 230 Wis. 2d 212,
601 N.W.2d 627, 637 (Wis. 1999).
The first two elements of claim preclusion appear satisfied: the parties are the same
and the prior litigation resulted in a final judgment.4 On the other hand, because the court
cannot determine the basis for the state court’s dismissal of the claim, the court cannot
determine whether the dismissal was on the merits of plaintiff’s claims or for some other
reason.5

Because this argument is being raised in a motion to dismiss under Rule 12(b)(6), the court must
accept all of the well-pleaded allegations in plaintiff’s complaint as true.
3

Wisconsin’s online court records state that the circuit court’s dismissal of plaintiff’s petition was
“with prejudice.” Muhammad v. Louis, 2014CV947, dkt. #31 (Dane Cty. Cir. Ct. May 6, 2014).
4

For the same reasons, the court would not be able to determine whether issue preclusion may apply
to bar plaintiff’s claims. Issue preclusion applies where an issue was actually litigated and decided by
a previous court. Mrozek v. Intra Fin. Corp., 2005 WI 73, ¶ 17, 281 Wis. 2d 448, 699 N.W.2d 54.
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Even if the court had the benefit of the state court’s reasoning, claim preclusion
would not apply for another reason. The Seventh Circuit has explained that because a
petition for review under Wis. Stat. ch. 68 is a limited form of review that does not permit
the petitioner to request a jury or recover damages, claim preclusion does not bar a
subsequent § 1983 suit in federal court. Wilhelm v. County of Milwaukee, 325 F.3d 843, 84546 (7th Cir. 2003) (citing Hanlon v. Town of Milton, 612 N.W.2d 44, 48 (Wis. 2000)).
Common law certiorari is similarly limited, Ottman v. Town of Primrose, 2011 WI 18, ¶ 35,
332 Wis. 2d 3, 796 N.W.2d 411, meaning that a common law certiorari action under
Wisconsin law would likely not have preclusive effect on a later-filed § 1983 claim.
Here, plaintiff’s state court petition appears to be either a petition for certiorari
under Chapter 68 or a common law certiorari action seeking review of the CDA’s decision
terminating her housing benefits, though it is not entirely clear from the documents
provided by defendants or the state court’s records. Nonetheless, defendants do not address
Wilhelm or Hanlon in their brief.

It may be that plaintiff’s state court petition was

considered by the state court to be a civil action under § 1983, but defendants have not
provided such information to the court. Instead, the limited information now before the
court suggests that claim preclusion does not apply in this case. Accordingly, the court will
deny defendants’ motion to dismiss on the basis of claim preclusion without prejudice.
C.

Failure to State a Claim

Defendants Louis’ and Conrad’s final argument is that plaintiff’s claim should be
dismissed because any deprivation of her property right necessarily resulted from “random
and unauthorized” acts of state or municipal actors for which plaintiff had a meaningful,
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post-deprivation remedy. Defendants’ argument is based on Parratt v. Taylor, 451 U.S. 527,
541 (1981), in which the Supreme Court held the due process clause does not require
“predeprivation process” in a situation involving loss of a property right “as a result of a
random and unauthorized act by a state employee [and] not a result of some established
state procedure.” The Seventh Circuit has clarified that the rule in Parratt applies when the
plaintiff claims she was “denied a meaningful pre-deprivation hearing, but under
circumstances where the very notion of a pre-deprivation hearing would be impractical and
even nonsensical, and where the deprivation was not carried out through established state
procedures.” Armstrong v. Daily, 786 F.3d 529, 539 (7th Cir. 2015). In other words, when
a property deprivation is inherently unpredictable -- “random and unauthorized” to the
extent that it could not be foreseen -- “no pre-deprivation hearing is required because it
would be utterly impractical” and “more process is unlikely to make a difference.” Id. In
such situations, the plaintiff cannot sustain a federal procedural due process claim if an
adequate post-deprivation remedy (such as a state law action) is available.
In an effort to fit under Parratt, defendants argue that plaintiff’s due process claims
fail because any decision by CDA employees to terminate her housing benefits without a
hearing or proper notice must have been “random and unauthorized” and in violation of
HUD regulations. They further argue that because plaintiff had an adequate remedy in
state court, in the form of a certiorari action, she cannot sustain a federal due process claim.
While creative, defendants’ argument is unpersuasive.
Here, plaintiff alleges that defendants violated her due process rights by scheduling a
hearing on a date that she could not attend and by failing to provide adequate notice
regarding her rights.

These allegations neither suggest that defendants’ actions were
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“random and unauthorized” nor that a meaningful pre-deprivation hearing or adequate
notice would have been “impractical or nonsensical.” Rather, they suggest that defendants
could have provided better notice or rescheduled the hearing, but believed they had
provided plaintiff sufficient process already.
In fact, defendants’ own submissions in response to plaintiff’s motions for emergency
relief seem to confirm that defendants do not believe that any action taken against plaintiff
was the result of a “random and unauthorized” act.

In particular, defendant Conrad

submitted a declaration in opposition to plaintiff’s request for emergency relief that states the
CDA gave plaintiff ample notice of her termination and attempted, albeit unsuccessfully, to
schedule a hearing that would accommodate her schedule. Conrad’s declaration implies that he
believes CDA did all that was necessary under CDA or HUD policies and practice. Parratt does

not apply to these circumstances. Accordingly, the court will deny defendants’ motion to
dismiss for failure to state a claim.
II.

Motion to Dismiss by Defendants Ashley and Finger
Defendants Ashley and Finger have filed a separate motion to dismiss on grounds

that the court lacks personal jurisdiction over them because they have never been served
properly. Defendants are correct. Based on the allegations of plaintiff’s complaint, it was
not clear that Ashley and Finger were federal employees of HUD in Milwaukee. Rather, the
allegations suggested that they were CDA employees. Thus, the U.S. Marshal Service did
not serve Ashley and Finger in accordance with Rule 4(i) of the Federal Rules of Civil
Procedure applicable to federal officials. Generally, if service is not accomplished correctly,
the court would order the U.S. Marshal Service to attempt service again, this time in
compliance with Rule 4(i).
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In this case, however, the court will not order service, at least on the current
pleadings. As defendants point out in their motion to dismiss, plaintiff’s complaint does
not allege any facts suggesting that HUD employees in Milwaukee played any role in
terminating her housing benefits in violation of due process. Even so, plaintiff was allowed
to proceed against Ashley and Finger originally because her complaint suggested that they
were CDA employees and, therefore, may have played some role in the denial of notice or
scheduling of the CDA hearing. Now that it is clear they are not, there appears to be no
basis on which plaintiff can assert a due process claim against them. The court concludes,
therefore, that it would be a waste of resources for the U.S. Marshals to serve Ashley and
Finger without sufficient allegations to state a claim against either. Accordingly, the court
will dismiss these defendants from the case without prejudice.
III.

Motion for Emergency Relief
Plaintiff has filed two motions for emergency relief, seeking either reinstatement of

her housing benefits and/or payment of rent by defendants. She alleges that she may soon
be homeless if the court does not intervene. In particular, she submitted a “Five-Day Notice
to Remedy Default or Vacate Premises” that she received from her landlord on February 7,
2017, which states that she must either vacate her residence or pay her unpaid rent.
Although the court is sympathetic to plaintiff’s situation, the court must deny her
requests for emergency relief at this time. As an initial matter, though not fatal, plaintiff’s
motions are procedurally defective because they fail to comply with this court’s procedure
for obtaining preliminary injunctive relief, a copy of which will be provided to her with this
order. Under these procedures, a plaintiff must file and serve proposed findings of fact that
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support her claims, along with evidence that supports those proposed findings. To date,
plaintiff has submitted neither.
Even if plaintiff’s motions were not facially flawed, the court would deny them on the
merits at this time. Preliminary injunctive relief such as that requested by plaintiff is rarely
granted.

To prevail on a motion for a preliminary injunction, plaintiff must show: (1) a

likelihood of success on the merits of his case; (2) a lack of an adequate remedy at law; and (3)
an irreparable harm that will result if the injunction is not granted. See Lambert v. Buss, 498
F.3d 446, 451 (7th Cir. 2007). Here, plaintiff has yet to show a likelihood of success on the
merits of her claims.
In order to show a likelihood of success on the merits, plaintiff would need to submit
actual evidence in support of her claims, including more detailed information about the series of
events that led to termination of her housing benefits and why she believes defendants are
responsible. Moreover, defendant Conrad submitted a declaration in opposition to plaintiff’s
request for emergency relief stating that the CDA gave plaintiff ample notice of her termination
and attempted, albeit unsuccessfully, to schedule a hearing that would accommodate her
schedule. Based on this information, which plaintiff has failed to rebut or even respond to, she
has yet to show any likelihood of success on her claims.6 Accordingly, she is not entitled to
emergency injunctive relief.
IV.

Motion for Assistance in Recruiting Counsel
Finally, plaintiff has asked the court to assist her in recruiting counsel. This motion will

be denied for two reasons. First, before the court will consider a request for assistance, it must
first find that the plaintiff has made reasonable efforts to find a lawyer on her own and was

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The court is also concerned about the possibility that claim preclusion may still be applicable.

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unsuccessful or was prevented from making such efforts. Jackson v. County of McLean, 953 F.2d
1070 (7th Cir. 1992). To prove that she has made reasonable efforts to find a lawyer, plaintiff
must give the court letters from at least three lawyers who denied plaintiff's request for
representation in this case.

In particular, plaintiff should show an attempt to contact

Neighborhood Law Clinic, Legal Action of Wisconsin, and/or Community Justice Inc. and if she
has not done so, then explain why. Alternatively, if the lawyers to whom plaintiff contacts do
not respond after 30 days, plaintiff may explain the efforts she took to obtain a lawyer in a
declaration sworn under penalty of perjury. 28 U.S.C. § 1746. At minimum, plaintiff should
include the date she sent the letters and a copy of the letters themselves. Plaintiff has not yet
complied with this prerequisite.
Second, in determining whether to recruit counsel for a pro se litigant, the relevant
question is whether the complexity of the case exceeds the plaintiff’s ability to litigate it. Pruitt
v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). Here, plaintiff has not even attempted to explain
why she believes she needs assistance in litigating this case. The court is not persuaded that
plaintiff needs assistance at this time. Based on the information before the court at this stage, it
appears that plaintiff’s claims are straightforward and can be resolved once the facts are flushed
out. Since most of the relevant facts will be known by plaintiff herself, she should be able to
present her version of events to the court without assistance of an attorney. Accordingly, her
request will be denied without prejudice at this time.

ORDER
IT IS ORDERED that:
1.

The motion to dismiss filed by defendants Shelia Ashley and John Finger (dkt.

#25) is GRANTED.

Plaintiff’s claims against defendants Ashley and Finger are
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DISMISSED without prejudice for failure to state a claim against them upon which relief
may be granted.
2.

The motion to dismiss filed by defendants Beverly Louis and Tom Conrad

(dkt. #21) is DENIED.
3.

Plaintiff’s motions for emergency relief (dkts. ##19, 35) and request for

assistance in recruiting counsel (dkt. #31) are DENIED.
Entered this 11th day of May, 2017.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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