Ward Jr, Joshua v. Diacker, Dan

Filing 11

ORDER that this case is DISMISSED for plaintiff's failure to state a claim upon which relief may be granted. The clerk of court is directed to enter judgment accordingly and close the case. Plaintiff is assessed a strike under 28 U.S.C. § 1915(g). Signed by District Judge James D. Peterson on 1/6/2021. (lam),(ps)

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

JOSHUA LEE WARD, JR.,

v.

Plaintiff,

OPINION and ORDER
20-cv-993-jdp

DAN DIACKER,
Defendant.

Plaintiff Joshua Lee Ward, Jr., appearing pro se, is a prisoner at Columbia Correctional
Institution. Ward alleges that, prior to his incarceration, he was fired from his job at a Days
Inn because of his criminal record. He has made an initial partial payment of the filing fee as
previously calculated by the court. The next step is for me to screen the complaint and dismiss
any portion that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by law cannot be sued for money
damages. 28 U.S.C. § 1915. In doing so, I must read Ward’s pro se complaint generously,
see Haines v. Kerner, 404 U.S. 519, 521 (1972) (per curiam), and accept his allegations as true,
see Bonte v. U.S Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010).
Ward states that in the summer of 2019, he was fired from the Days Inn after the
owner, defendant Dan Diacker, discovered Ward’s criminal record, which included convictions
for second-degree sexual assault of a child and fourth-degree sexual assault. Diacker told Ward
that “I cannot have people like you walking around cleaning rooms with kids in them.” Dkt. 1,
at 3. Diacker also shared Ward’s record with other people in what Ward says was an attempt
to “slander” him. Id. at 3. Ward says that he is suing Diacker for “punitive damages,
discrimination, harassment, slander, defamation of character, deliberate indifference, violation

of [his] constitutional rights, pain and suffering, and violation of [his] equal protection rights.”
Id.
Federal courts are courts of limited jurisdiction, which means they can entertain only
certain types of cases. Int’l Union of Operating Eng’rs, Local 150 v. Ward, 563 F.3d 276, 280 (7th
Cir. 2009). Generally, a plaintiff suing in federal court must show either that he is raising a
federal claim, 28 U.S.C. § 1331 (known as federal-question jurisdiction), or that he and the
defendants are citizens of different states and that more than $75,000 is in controversy,
28 U.S.C. § 1332 (known as diversity jurisdiction).
Ward doesn’t state any federal claims against Diacker. Diacker isn’t a public official
acting under color of law, so he cannot be sued for violating Ward’s civil rights in an equal
protection claim or other constitutional claim under 42 U.S.C. § 1983. Federal employmentdiscrimination cases are often brought under Title VII of the Civil Rights Act of 1964,
42 U.S.C. 2000e-2(a)(1), makes it unlawful for an employer to “fail or refuse to hire . . . or
otherwise to discriminate against any individual . . . because of such individual’s race, color,
religion, sex, or national origin.” But Ward alleges that he was discriminated against because
of his criminal record, which isn’t covered under Title VII.
Here, Ward alleges that both he and Diacker are Wisconsin citizens, and he doesn’t sue
Days Inn itself. So he does not fulfill the requirements for diversity jurisdiction. Even if he had
fulfilled those requirements, he doesn’t state a state-law claim. Although in some circumstances
the Wisconsin Fair Employment Act prohibits discrimination in employment because of
conviction record, see Wis. Stat. § 111.31, that law “does not afford [a] plaintiff a general
private right of action, unless [he] brings a claim for discrimination occurring between July 1,
2009, and April 19, 2012.” Sharp v. Stoughton Trailers, LLC, No. 15-cv-598, 2016 WL 3102241,

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at *3 (W.D. Wis. June 2, 2016). Because Ward’s claims arise out of his summer 2019
termination, he cannot obtain relief in a court under WFEA. Rather, he must seek relief for
violations of that statute with the Wisconsin Department of Workforce Development’s Equal
Rights Division. Id. at *2.
Under Wisconsin law, “a defamation claim involves three elements: ‘(1) a false
statement; (2) communicated by speech, conduct or in writing to a person other than the
person defamed; and (3) the communication is unprivileged and tends to harm one’s
reputation.’” Hussain v. Ascension Sacred Heart–St. Mary’s Hosp., Inc., No. 18-cv-529-wmc, 2019
WL 5310677, at *10 (W.D. Wis. Oct. 21, 2019) (quoting Torgerson v. Journal/Sentinel, Inc., 210
Wis. 2d 524, 534, 563 N.W.2d 472 (1997)). Ward does not allege that the criminal-record
information Diacker shared with others was false, so he does not state a defamation claim.
Because Ward doesn’t state a claim that can be heard by this court, I will dismiss the
case in its entirety. And because Ward was a prisoner when he filed this lawsuit, I will assess
him a “strike” under 28 U.S.C. § 1915(g).

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ORDER
IT IS ORDERED that:
1. This case is DISMISSED for plaintiff’s failure to state a claim upon which relief may
be granted.
2. The clerk of court is directed to enter judgment accordingly and close the case.
3. Plaintiff is assessed a strike under 28 U.S.C. § 1915(g).
Entered January 6, 2021.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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