Milestone v. City of Monroe

• Decision Date: 21 November 2011
• Docket Number: No. 10–1300.,10–1300.
• Citation: 665 F.3d 774
• Parties: Edith MILESTONE, Plaintiff–Appellant, v. CITY OF MONROE, WISCONSIN, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

665 F.3d 774

Edith MILESTONE, Plaintiff–Appellant,

v.CITY OF MONROE, WISCONSIN, Defendant–Appellee.

No. 10–1300.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 15, 2010.Decided Nov. 21, 2011.

Raymond G. Clausen (argued), Attorney, Clausen & Severson, Madison, WI, for Plaintiff–Appellant.

Kevin P. Reak, Gregg J. Gunta (argued), Attorneys, Gunta & Reak, S.C., Milwaukee, WI, for Defendant–Appellee.

Before MANION, SYKES, and HAMILTON, Circuit Judges.

SYKES, Circuit Judge.

Edith Milestone was banned from entering the Senior Center in the City of Monroe, Wisconsin, because she repeatedly violated the Center's Code of Conduct. She sued the City under 42 U.S.C. § 1983 claiming that the expulsion violated her free-speech and due-process rights and that the Code is facially unconstitutional. A magistrate judge granted summary judgment for the City. The judge held that the Senior Center director, who imposed the expulsion penalty, and the Monroe Senior Citizens Board, which promulgated the Code and approved the order, were not final policymakers for the City, so there was no basis for municipal liability. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Milestone appealed.

We affirm, although on a somewhat expanded analysis. We agree that the Senior Center director and the Senior Citizens Board were not the City's final policymakers for purposes of enforcing the Code of Conduct. Under state and local law, Milestone had the right to ask the Monroe Common Council to overturn the expulsion order, and her failure to do so precludes municipal liability under Monell to the extent that the claimed constitutional violations stem from the imposition of the ban. This result does not impose a requirement of exhaustion of administrative remedies under § 1983, but follows from the Common Council's role as the relevant policymaker for the sanction imposed on Milestone.

Milestone's facial challenge to the Code rests on a different foundation, however. By Monroe ordinance, the Senior Citizens Board has the authority to make rules for the Senior Center; the Code itself is therefore city policy. But Milestone's facial challenge is flawed on the merits. The Code consists of reasonable “time, place, or manner” restrictions, and is neither unconstitutionally vague nor overbroad.

I. Background

Edith Milestone, a senior citizen, lives in Monroe, Wisconsin, a small city that claims the title of the “Swiss Cheese Capital of the U.S.A.” Prior to 2008 Milestone often visited the Behring Senior Center, operated by the City of Monroe. The Senior Center is open to the 55–and–over community from Monroe (a/k/a the “cheese city”) and the surrounding area. Among other activities, the Senior Center offers classes, meals, exercise programs, and card games.

The Monroe Senior Citizens Board, comprised of nine citizen volunteers, is empowered to adopt rules and regulations to “secure the suitable use and enjoyment” of the “cheese city social center building ... by senior citizens of Monroe.” Monroe, Wis., Code §§ 2–12–1, 2–12–3(A), (C). Pursuant to this authority, the Board promulgated a Code of Conduct for visitors to the Center. Among other things, the Code prohibits “abusive, vulgar, or demeaning language,” “physically threatening” conduct, and disrespectful behavior toward patrons, the Center's staff, and outside instructors. The Code provides that “[v]iolations of this code of conduct will be acted upon by the Senior Center staff or Board of Directors.” Copies of the Code of Conduct were posted throughout the building.

Milestone's visits to the Center were fraught with turmoil. Her file included a number of “incident reports” alleging the following disturbances: She engaged in a shouting match at a card game (February 2002); she tried to get the Center's director fired (December 2005); she filed frivolous police complaints about other patrons (January 2006); she yelled at patrons and staff (February 2006); she advised another patron to go to confession (February 2006); she accused other patrons of spreading rumors about her (October 2007); and she threw playing cards across a table (December 2007). In February 2006 the Monroe city attorney wrote Milestone a letter informing her that the City might have to seek a restraining order against her if she failed to “conform to reasonable standards of decorum while at the Center.” The City never followed up on this letter.

In October 2008 Milestone was involved in an incident that led to her expulsion from the Center.¹ While playing cards, Milestone began loudly complaining about the scoring of the game. When the game was finished, Milestone angrily refused to accept the one-dollar prize she had won because she thought that the game had been scored incorrectly. Tammy Derrickson, the Senior Center director, approached Milestone and told her that her behavior was not acceptable. The two got into a heated discussion, which escalated when Milestone wagged her finger in Derrickson's face and threatened to sue her. Derrickson reiterated that Milestone's behavior was unacceptable and told her that she was no longer allowed to visit the Center.

The next day, Derrickson sent Milestone a letter informing her that she was “no longer welcome to attend Senior Center Programs” based on the following violations of the Center's Code of Conduct: “(1) [n]ot treating other participants with respect[;] (2) [a]busive language[;] (3) [n]ot treating Senior Center staff in a respectful man[ner; and] (4) [p]hysically threatening conduct.” Before sending the letter, Derrickson reviewed it with the mayor, the city attorney, and the chief of police, but not with any members of the City's Common Council.

Milestone's attorney wrote to the Senior Citizens Board and requested a copy of the Code and any documentation regarding the incident that precipitated her expulsion. An assistant city attorney provided the documents and also informed Milestone's attorney that Milestone could appeal Derrickson's decision to the Senior Citizens Board via a “due process hearing.” Milestone exercised this right.

The Senior Citizens Board convened a hearing and heard testimony under oath from Milestone, Derrickson, and other witnesses. In a written decision, the Board affirmed Derrickson's action but modified the ban to remove its apparent perpetual duration. The Board said it would “consider a petition for reinstatement by Edith Milestone upon proof of successful completion of an accredited ‘Anger Management’ program.” The Board also advised Milestone of her right to take an administrative appeal to the City's Common Council within 30 days and that if she failed to do so, the Board's decision would “be treated as a final determination” for purposes of judicial review. See Wis. Stat. §§ 62.12(2), 62.13.

Milestone did not appeal the Board's decision to the Common Council or seek judicial review. Nor did she enroll in an anger-management program. Instead, she filed this § 1983 lawsuit against the City alleging violations of her free-speech and due-process rights under the First and Fourteenth Amendments. A magistrate judge, proceeding by consent, granted the City's motion for summary judgment, holding that Derrickson and the Senior Center Board were not final policymakers for purposes of municipal liability under Monell. Though he did not reach the merits, the judge noted that the City had “a legitimate interest in minimizing disruption and keeping the [senior] center a pleasant environment for its visitors.”

II. Discussion

This case comes to us from an order granting summary judgment for the City, so our review is de novo; we construe all facts and reasonable inferences in favor of Milestone, the nonmoving party. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir.2010). Milestone argued below and reiterates here that Derrickson's decision to expel her from the Senior Center amounts to viewpoint discrimination in violation of her right to free speech. She also claims the Code of Conduct is unconstitutionally overbroad in that it sweeps in too much protected speech, subjecting it to the threat of punishment. Finally, she alleges several due-process violations. She claims that: (1) the ban was imposed without a hearing, violating her right to due process; (2) the Code deprived her of fair notice because it does not prescribe specific penalties; and (3) the decision to expel her from the Senior Center violated her right to move about in public places.

The magistrate judge did not reach the merits of these claims but instead entered judgment for the City after finding no basis for municipal liability. To the extent that Milestone's claims relate to the expulsion order, we agree. Milestone sued the City, not Derrickson, who imposed the ban, or the members of the Senior Center Board, who affirmed it. There is no respondeat superior liability under § 1983; the Supreme Court “distinguish [es] acts of the municipality from acts of employees of the municipality.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); City of Okla. City v. Tuttle, 471 U.S. 808, 818, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Monell, 436 U.S. at 691, 98 S.Ct. 2018; see also Lewis v. City of Chicago, 496 F.3d 645, 656 (7th Cir.2007) ( “Misbehaving employees are responsible for their own conduct, [but] units of local government are responsible only for their policies rather than misconduct by their workers.” (quotation marks omitted)). For municipal liability under § 1983, the constitutional violation must be caused by (1) an express municipal policy; (2) a widespread, though unwritten, custom or practice; or (3) a decision by a municipal agent with “final policymaking authority.” Darchak v. City of Chi. Bd. of Educ., 580 F.3d 622, 629 (7th Cir.2009); see also Monell, 436 U.S. at 694, 98 S.Ct. 2018.

Only the third theory of Monell municipal liability is at issue here. Milestone argues...