Schulz, Craig v. Pagel, Darin et al

Filing 5

ORDER that plaintiff Craig Schulz may have until January 30, 2017 to file an amended complaint and allege the basis for the court's jurisdiction. Signed by District Judge James D. Peterson on 1/9/2017. (jef),(ps)

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

CRAIG SCHULZ,
Plaintiff,
v.

ORDER

DARIN PAGEL, SHANE VANDERWAAL,
TOM HAYDEN, CITY OF MERRILL, WISCONSIN,
LINCOLN COUNTY, WISCONSIN,

16-cv-845-jdp

Defendants.
Pro se plaintiff Craig Schulz has filed a complaint alleging that defendants wrongfully
conspired to demolish his home. Schulz asserts state law claims for “Fraud / Intentional
Misrepresentation,” abuse of process, and civil conspiracy. Dkt. 1, at 7-10. Schulz does not
identify any federal claim.
Schulz’s complaint does not properly allege federal jurisdiction. Instead of dismissing
the action outright for lack of jurisdiction, I will give Schulz an opportunity to amend his
complaint.
Federal courts have limited jurisdiction, Int’l Union of Operating Eng’rs, Local 150, AFLCIO v. Ward, 563 F.3d 276, 280 (7th Cir. 2009), and a district court has “an independent
obligation” to determine whether it has jurisdiction “even when no party challenges it,” Hertz
Corp. v. Friend, 559 U.S. 77, 94 (2010). Unless a complaint adequately alleges subject matter
jurisdiction, the court must dismiss the case. Smart v. Local 702 Int’l Bhd. of Elec. Workers, 562
F.3d 798, 802 (7th Cir. 2009). The party invoking federal jurisdiction bears the burden of
establishing subject matter jurisdiction. Id. at 802-03.

Generally, a plaintiff may establish that the court has federal jurisdiction in two ways.
First, the plaintiff may invoke federal question jurisdiction by asserting claims that arise
under federal law. 28 U.S.C. 1331. Second, the plaintiff may invoke diversity jurisdiction
under 28 U.S.C. 1332, meaning that the case involves claims between the parties who are
citizens of different states and that the amount in controversy exceeds $75,000.
Here, all of Schulz’s claims arise under state law, Dkt. 1, at 7-10, so he can proceed in
this court on state law claims on the basis of diversity jurisdiction, but he does not allege
defendants’ citizenship. It appears that he cannot establish complete diversity of citizenship:
Schulz appears to be a Wisconsin citizen and defendants Pagen, Hayden, and VanderWaal
all have Wisconsin addresses. Thus, the complaint neither asserts a federal claim nor invokes
diversity jurisdiction.
Schulz cites a few federal statutes, namely 42 U.S.C. § 1983, 28. U.S.C. §§ 2201,
2202, 28 U.S.C. § 1343(a), and 28 U.S.C. § 1367(a), but citing these statutes does not
establish federal question jurisdiction. Section 1983 is a remedial statute that provides “a
method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266,
271 (1994). It “is not a jurisdictional statute.” Liberles v. Cook Cty., 709 F.2d 1122, 1126 (7th
Cir. 1983); accord Anderson v. Luther, 521 F. Supp. 91, 96 (N.D. Ill. 1981). Likewise, sections
2201 and 2202 provide remedies, as they allow plaintiffs to seek declaratory judgments, but
they confer no jurisdiction themselves. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S.
667, 671-72 (1950).
Section 1343 is a jurisdictional statute, but it does not apply unless the asserted
claims concern “rights, privileges, or immunities” created by federal law. Kamsler v. M. F. I.
Corp., 359 F.2d 752, 754 (7th Cir. 1966). Section 1367 confers supplemental jurisdiction

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over state law claims only when the court already has a separate, independent basis for
federal jurisdiction, El v. AmeriCredit Fin. Servs., Inc., 710 F.3d 748, 752-53 (7th Cir. 2013),
and even then, exercising supplemental jurisdiction over state law claims is discretionary,
meaning the district court can choose not to entertain state law claims. Volling v. Kurtz
Paramedic Servs., Inc., 840 F.3d 378, 385-86 (7th Cir. 2016).
I must read Schulz’s pro se complaint “with an understanding eye” and give him an
“ample opportunity” to litigate on the merits. Donald v. Cook County Sheriff’s Dept., 95 F.3d
548, 555 (7th Cir. 1996). Thus, although the legal theories identified by Schulz does not
establish federal jurisdiction, I must assess whether he has a “colorable claim” and allow him
to amend his complaint if he does. Id.
Schulz appears to have a colorable claim for violation of procedural due process. See
Leavell v. Illinois Dept. of Natural Res., 600 F.3d 798 (7th Cir. 2010). The Fourteenth
Amendment to the Constitution prohibits deprivation of property “without due process of
law.” U.S. Const. amend. XIV. Courts assess procedural due process claims in two steps. The
court must first determine whether the plaintiff had protected interest and then what process
was due. Leavell, 600 F.3d at 804.
Here, Schulz’s complaint concerns his home, so as alleged, he has protected property
interest. And I take Schulz to mean that he tried to seek remedies in state court, but he was
denied an “opportunity to save his home.” Dkt. 1, at 6.
But it is difficult to tell from the complaint what happened. In particular, there
appears to have been some litigation at a state court, but the case was eventually thrown out
for an unidentified reason. Id. at 5-6. On the other hand, Schulz suggests that he was not
allowed to participate in the state proceeding at all. See Id. at 4-5. In the amended complaint,

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Schulz should clarify whether he was a party to any case in a state court. If not, he should say
so. He also states that Wilmington Savings Trust Society filed a motion for a restraining
order that concerns Schutz’s property. Id. at 5. Schulz should include in his amended
complaint a case number and the name of the state court where this motion was filed. And
Schulz should also note that, if there is a state court proceeding currently pending, then this
court lacks jurisdiction. See Tyrer v. City of S. Beloit, Ill., 456 F.3d 744, 750 (7th Cir. 2006).
I have also considered whether Shultz might pursue the theory that his loss of home
was an unconstitutional taking. See Devines v. Maier, 665 F.2d 138, 141 (7th Cir. 1981). He
is free to pursue this theory, but he should note that his claim would likely fail if his home
were a nuisance to the public. See Hendrix v. Plambeck, 420 F. App’x 589, 592 (7th Cir. 2011).
In sum, before dismissing the case for lack of jurisdiction, I will give Shultz an
opportunity to cure the jurisdictional defect by amending his complaint. If Schulz fails to
amend the complaint or properly allege the basis for the court’s jurisdiction, I will dismiss the
action.

ORDER
IT IS ORDERED that:
1. Plaintiff Craig Schulz may have until January 30, 2017 to file an amended
complaint and allege the basis for the court’s jurisdiction.
2. Failure to allege the basis for the court’s jurisdiction will result in a dismissal.
Entered January 9, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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