Divelbiss, Randin v. DeSpain, Joel et al
Filing
5
ORDER that:1. This case is DISMISSED.2. The clerk of court is directed to enter judgment accordingly and close this case.3. Plaintiff is directed to communicate with this court and its clerk's office in writing only. Signed by District Judge James D. Peterson on 1/28/2025. (voc),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
RANDIN DIVELBISS,
Plaintiff,
v.
OPINION and ORDER
OFFICER JOEL DESPAIN, OFFICER LAPORTA,
and MADISON POLICE MEDIA,
24-cv-650-jdp
Defendants.
Plaintiff Randin Divelbiss, proceeding without counsel, alleges that Madison police
arrested him based on a false report of disorderly conduct and defamed him by publishing
identifying information that people used to harass and threaten him. The court has allowed
Divelbiss to proceed with the case without prepaying any portion of the filing fee. Dkt. 3.
Divelbiss followed his original complaint, Dkt. 1, with a supplement to his complaint, Dkt. 4.
I will consider these two documents together as the operative pleading.
The next step is for me to screen the complaint and dismiss any portion that is legally
frivolous or 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 accept the complaint’s allegations as true and construe the complaint
generously, holding it to a less stringent standard than formal pleadings drafted by lawyers.
Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011). I will dismiss the case because Divelbiss’s
federal-law claims are barred by the statute of limitations and he doesn’t meet the requirements
for diversity jurisdiction. I will also bar him from communicating with the court or it’s clerk’s
office in any way other than by submitting a written submission in a lawsuit.
ALLEGATIONS OF FACT
In May 2020, Divelbiss was arrested by defendant Madison police officer Laporta after
a couple called the police to falsely report that another driver had “given them the finger” and
pointed on object at them and pretended to fire it at them as if it were a gun. Police used the
witnesses’ description of Divelbiss’s car and traffic cameras to identify the car. Defendant police
spokesperson Joel DeSpain issued a press release about the arrest and including Divelbiss’s
name and photos of his car. That press release was picked up by the media, who ran at least
one story on the internet about it. The disorderly conduct charge against him was dismissed,
but in the months following the incident, several people “mobbed” his car, made death threats
against him, and pointed guns at him after recognizing his car from the photos. Dkt. 1, at 2.
ANALYSIS
Divelbiss attempts to bring claims under both federal and state law. He contends that
defendants Laporta violated his First and Fourth Amendment rights by arresting him without
probable cause based on lies from the couple who reported him to police. But Divelbiss can’t
bring these claims because too much time has passed since his arrest. For claims like these
brought under 42 U.S.C. § 1983, federal courts use the statute of limitations governing
personal injury actions in the state where the injury took place. Wallace v. Kato, 549 U.S. 384,
387 (2007). Wisconsin has a three-year personal injury statute of limitations. Wis. Stat.
§ 893.53. Divelbiss filed this lawsuit more than four years after his May 2020 arrest. A statute
of limitations defense is an affirmative defense, but a district court may dismiss a complaint if
a party pleads enough information to show that the complaint is untimely. Gleash v. Yuswak,
308 F.3d 758, 760–61 (7th Cir. 2002). I will dismiss Divelbiss’s federal-law claims.
2
That leaves Divelbiss’s state-law claim against defendant DeSpain for defaming him.
Without any federal-law claims, Divelbiss cannot bring a state-law defamation claim against
DeSpain in this federal court unless he were to show that the requirements for the court’s
diversity jurisdiction are met: that he and DeSpain are citizens of different states and that more
than $75,000 is in controversy. 28 U.S.C. § 1332. Divelbiss’s complaint does not meet these
standards. Divelbiss states that he is a citizen of Wisconsin. He doesn’t assert the citizenship
of defendants but there’s no reason to believe that multiple Madison police officials are citizens
of a state other than Wisconsin. And he asserts only $25,000 in damages, far below the
$75,000 threshold.
The court of appeals has cautioned against dismissing an unrepresented plaintiff’s case
without giving the plaintiff a chance to amend the complaint. Felton v. City of Chicago, 827 F.3d
632, 636 (7th Cir. 2016). But in this case, dismissal of this case is appropriate because there
isn’t any reason to think that Divelbiss could amend his complaint to fix the problems discussed
above.
One final point. The clerk’s office informs me that over the past week or so, it has
received several phone calls from Divelbiss in which he used abusive, racist, and sexist language
to harass court staff. He has also attempted to e-mail court staff about his cases using the
court’s electronic-filing help desk address, which is not the intended use for that address.
Particularly given Divelbiss’s misconduct, there is no legitimate reason for him to continue to
contact the clerk’s office directly. Accordingly, all further communications from Divelbiss must
be in writing only, with a caption including the case number about which Divelbiss is
communicating. If Divelbiss does not comply with this order, I will consider sanctions against
him, including barring him from filing additional motions or new lawsuits in this court.
3
ORDER
IT IS ORDERED that:
1. This case is DISMISSED.
2. The clerk of court is directed to enter judgment accordingly and close this case.
3. Plaintiff is directed to communicate with this court and its clerk’s office in writing
only.
Entered January 28, 2025.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?