Perket, Scot v. Mayo Health Care et al

Filing 3

ORDER dismissing cases 16-cv-396-wmc, 16-cv-568-wmc, 16-cv-586-wmc, 16-cv-824-wmc and 16-cv-859-wmc for lack of subject matter jurisdiction. Signed by District Judge William M. Conley on 8/21/2017. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
SCOT ALAN PERKET,
Plaintiff,

OPINION and ORDER

v.
Case No. 16-cv-396-wmc
MAYO HEALTH CARE,
ST. FRANCIS HOSPITAL, and
BUFFALO COUNTY COURT,
Defendants.

SCOT ALAN PERKET,
Plaintiff,

OPINION and ORDER

v.
Case No. 16-cv-568-wmc
LAW FIRM OF FLOTTMEYER, BURGOS,
RYAN AND SAYNER; DAN RYAN; AND
WILLIAM FLOTTMEYER,
Defendants.

SCOT ALAN PERKET,
Plaintiff,

OPINION and ORDER

v.
Case No. 16-cv-586-wmc
PAUL PAPPAS, VERVE CREDIT UNION
AND MOUNT MORRIS MUTUAL OF
COLOMA,
Defendants.

SCOT ALAN PERKET,
Plaintiff,

OPINION and ORDER

v.
Case No. 16-cv-824-wmc
AHMC ASSET MANAGEMENT OF
EAU CLAIRE, BUFFALO COUNTY,

LA CROSSE COUNTY AND
WEDGEWOOD COMMONS,
Defendants.

SCOT ALAN PERKET,
Plaintiff,

OPINION and ORDER

v.
Case No. 16-cv-859-wmc
LA CROSS COUNTY JAIL DEPUTIES,
ET AL.,
Defendants.

Pro se plaintiff Scot Alan Perket has filed 13 lawsuits since May 2016, alleging a
variety of wrongs against numerous, various defendants. Several of these cases have since
been terminated for failure to pay the filing fee.1 In other cases, Perket paid the full filing fee,
and the court issued summons for him to serve on the defendants in accordance with Rule 4
of the Federal Rules of Civil Procedure. In each of those cases, Perket has attempted service,
and the defendants have filed motions to dismiss on various grounds, including lack of
personal and subject matter jurisdiction.2

Those motions to dismiss are addressed in a

separate order issued today.
With respect to the five cases listed in the caption above, however, the court
conducted an initial review to determine whether subject matter jurisdiction exists.

See

Buchel-Ruegsegger v. Buchel, 576 F.3d 451, 453 (7th Cir. 2009) (noting that federal courts have
The following cases have been dismissed for failure to pay the filing fee: 16-cv-485-wmc; 16-cv-579wmc; 16-cv-652-wmc; 16-cv-709-wmc; and 17-cv-24-wmc.
1

The following cases have motions to dismiss currently pending: 16-cv-362-wmc; 16-cv-507-wmc; 16cv-525-wmc. Perket failed to respond to the motions to dismiss in each of the three cases.
2

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a duty to evaluate their own jurisdiction, “sua sponte if necessary”) (citation omitted). The
court also reviewed the complaints for any claims that are obviously frivolous, malicious or
devoid of merit. See Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999) (“[D]istrict courts have
the power to screen complaints filed by all litigants, prisoners and non-prisoners alike,
regardless of fee status.”); Hagans v. Lavine, 415 U.S. 528, 536 (1974) (district court may
dismiss fee-paid complaint if claims are “so attenuated and unsubstantial as to be absolutely
devoid of merit”) (citation omitted). In doing so here, the court is mindful that Perket is
held to a “less stringent standard” in crafting pleadings as a pro se litigant. Haines v. Kerner,
404 U.S. 519, 520 (1972). Even under a relaxed pleading standard, however, this court
plainly lacks subject matter jurisdiction over any of Perket’s claims in the above captioned
cases. Accordingly, all five cases will be dismissed.
OPINION
A federal district court’s jurisdiction is limited, meaning that generally it may only
hear a case if Congress has authorized it. With limited exceptions inapplicable here, a federal
court may exercise jurisdiction over a case in one of two situations: (1) the plaintiff brings a
claim that arises under federal law, 28 U.S.C. § 1331; or (2) the plaintiff and defendants are
citizens of different states and the amount in controversy is greater than $75,000. 28 U.S.C.
§ 1332.
I.

Case No. 16-cv-396
In case number 16-cv-396, Perket brings claims against Mayo Health Care, St. Francis

Hospital, and the Buffalo County Court, arising from separate incidents that occurred in
1998, 2015 and 2016. With respect to the 1998 incident, Perket alleges that he was taken
to St. Francis Hospital, which is part of Mayo Health Care in La Crosse, by La Crosse
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County police. There, a nurse extracted fluid from his thigh. The nurse would not tell him
the purpose of the extractions, and he was forced to sign a paper he did not understand.
In 2015, Perket claims he was arrested for disorderly conduct in the town of Alma,
and his blood was drawn at Mayo Health Care in Eau Claire. He also alleges that he was
tried twice for the same offense and was not assigned a public defender or given a phone call.
Finally, Perket alleges that in 2016, he was driving with his social worker to an
appointment in Alma, but arrived late due to bad conditions and road construction. He
claims that he was sent to St. Francis because he was late, and he was concerned that hospital
staff would draw fluids as they had done 1998.
While Perket’s claims against the Buffalo County Court for Double Jeopardy and
denial of counsel are pleaded as federal claims arising under the United States Constitution,
these challenges to the fairness of his past, state criminal proceedings are barred outright by
the rule articulated in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Heck prohibits a
plaintiff from bringing claims for damages if judgment in favor of the plaintiff would
“necessarily imply the invalidity of his conviction or sentence.” Id. Thus, Perket cannot
challenge the validity of Buffalo County conviction through a federal lawsuit brought under
42 U.S.C. § 1983 unless that conviction has already been “reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of habeas
corpus.” Id. at 486-87. Because Perket has made no such showing, any claims challenging
one of his state court conviction are barred.
In contrast, Perket’s allegations against Mayo Health Care and St. Francis do not even
state a claim over which this court can exercise subject matter jurisdiction, to the extent they
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plead a claim at all. Although the legal basis for his claims is not well articulated, his claims
against Mayo Health Care and St. Francis appear to be based on theories of state law medical
malpractice. Indeed, Perket’s complaint indicates that he intends to sue these defendants
under state law based on diversity jurisdiction under § 1332. Moreover, because plaintiff is a
citizen of Wisconsin and he alleges that Mayo Health Care and St. Francis are located in La
Crosse, Wisconsin, the parties’ citizenship is not diverse for purposes of this court exercising
jurisdiction under § 1332. Finally, his allegations do not appear to implicate any federal
claims, as he does not claim that Mayo Health Care or St. Francis is a government actor or
that either defendant violated any federal law. Accordingly, all of plaintiff’s claims in case
number 16-cv-396-wmc must be dismissed.

II.

Case No. 16-cv-568
In case number 16-cv-568, Perket alleges that he retained the law firm of Flottmeyer,

Burgos, Ryan and Sayner to represent him in foreclosure-related matters. After the firm
initially seemed to agree to represent him, he claims they later antagonized him during
consultations and then stated that they would no longer represent him. He also claims that
the firm refused to refund any money to him from their trust fund accounts. Perket seeks to
sue the law firm for damages and injunctive relief.
There is no even articulable basis for federal subject matter jurisdiction over Perket’s
claims in this case. First, the court does not have jurisdiction under § 1331 because Perket’s
claims do not implicate any federal law. Rather, claims for legal malpractice, theft, breach of
fiduciary duty or other similar claims Perket may be attempting to raise all arise solely under
state law.

Second, this court does not have jurisdiction over the state law claims under
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§ 1332 because Perket alleges that both he and the defendants are citizens of Wisconsin.
Accordingly, this complaint must be dismissed for lack of subject matter jurisdiction.

III.

Case No. 16-cv-586
In case number 16-cv-586, Perket alleges that defendant Paul Pappas, an insurance

agent with Farmers Insurance Company of Onalaska, unfairly cancelled his property
insurance after his home was condemned while he was incarcerated. Although his allegations
are unclear, Perket also appears to allege that Verve Credit Union and Mount Morris Mutual
of Coloma are partially responsible for the condemnation of his property because they denied
him a home improvement loan.
Again, aside from the dubious nature of these claims on the merits, these claims arise
under state law, rather than any federal statute or the constitution. For example, he does not
allege that his insurance was cancelled or loan denied based on race or other protected class,
which could possibly implicate federal civil rights laws and thus warrant jurisdiction under
§ 1331.

Rather, his claims appear to be based only on state law theories of breach of

contract, and the court does not have jurisdiction under § 1332 because both plaintiff and at
least one of the defendants (Paul Pappas) are located in Wisconsin. Accordingly, this case
will be dismissed for lack of subject matter jurisdiction.

IV.

Case No. 16-cv-824
In case number 16-cv-824, Perket alleges that defendants Augusta Housing Asset

Management Company (“AHMC”), Buffalo County, LaCrosse County and Wedgewood
Commons are all liable under state law for incidents that led to his criminal conviction. To
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the extent Perket states a claim at all, and his allegations in this case are exceptionally
difficult to follow, Perket seems to claim that unnamed individuals within these entities
framed him by planting certain incriminating evidence in an apartment that he rented from
AHMC. Specifically, Perket alleges that these individuals planted illegal substances in his
apartment, which apparently led to his criminal conviction and caused him personal harm.
Again, at least on their face, these allegations implicate state trespass or conversion law, not
federal law. Even if some of the individuals works for one of the government entitites, there
is no allegation that they were acting under color of state law, and even if they were, Perket
cannot challenge his conviction under Heck.

Because at least one of these defendants --

AHMC -- is a citizen of Wisconsin, diversity jurisdiction is also unavailable. Therefore, this
case, too, will be dismissed for lack of subject matter jurisdiction.

V.

Case No. 16-cv-859
Finally, in case number 16-cv-859, Perket names the La Crosse County deputies, City

Tax Assessor, Farmers Insurance Company and Midwest Loans as defendants. Again, the
allegations are unclear, but Perket appears to be repeating the allegations from the complaint
in Case No. 16-cv-586 discussed above, which relate to an insurance company’s failure to pay
his claim. Perket similarly appears to challenge the foreclosure on his home for failure to
making timely mortgage payments that was the subject of that lawsuit as well. Regardless, it
is once again apparent that this court lacks subject matter jurisdiction over any claims that he
may be asserting: (1) all of the defendants appear to be Wisconsin citizens so diversity
jurisdiction does not exist; and (2) his complaint does not state a claim under federal law. At

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most, his allegations related to the foreclosure of his house and non-payment of an insurance
claim sound in state law.
CONCLUSION
In light of the above order, Perket is now on notice that this court has authority to
hear only those cases that: (1) arise under federal law, 28 U.S.C. § 1331, or (2) arise under
state law, the plaintiff and defendants are citizens of different states and the amount in
controversy is greater than $75,000, 28 U.S.C. § 1332. Before filing any additional cases,
Perket should evaluate his claims to ensure that this court has jurisdiction over them under
either § 1331 or § 1332. If Perket continues to file cases over which this court plainly lacks
subject matter jurisdiction, the court will consider issuing sanctions against him.

ORDER
IT IS ORDERED that case numbers 16-cv-396-wmc, 16-cv-568-wmc, 16-cv-586-wmc,
16-cv-824-wmc and 16-cv-859-wmc are DISMISSED for lack of subject matter jurisdiction.
Entered this 21st day of August, 2017.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge

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