Kalkhoff v. Equal Rights Div.
| Decision Date | 04 November 2022 |
| Docket Number | 22-cv-578-pp |
| Parties | MICHAEL GILBERT KALKHOFF, Plaintiff, v. EQUAL RIGHTS DIVISION, Defendant. v. |
| Court | U.S. District Court — Eastern District of Wisconsin |
ORDER DENYING AS MOOT PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING FILING FEE (DKT. NO. 2) DENYING PLAINTIFF'S MOTIONS UNDER RULES 60(B), 11(B)(1) AND 8(C) (DKT. NO. 4), CONSTRUING LETTER AS MOTION FOR RELIEF UNDER RULE 55(D) AND DENYING MOTION (DKT. NO. 5) AND DISMISSING CASE WITH PREJUDICE
This is the third case that plaintiff Michael Gilbert Kalkhoff, who is representing himself, has filed in less than a year, and his second against the Wisconsin Department of Workforce Development's Equal Rights Division. Kalkhoff v Panera Bread Co., et al., Case No. 21-cv-1153 (E.D Wis.); Kalkhoff v. United States of America, Case No. 22-cv-577 (E.D. Wis.). Kalkhoff also has filed two cases in Milwaukee County Circuit Court, one against his landlord (Michael Kalkhoff v. JMC Properties, Case No. 2022CV05047) and one against the Equal Rights Division (Kalkhoff v. Department of Workforce Development Equal Rights Division, Case No. 2022CV05427)-both of which are mentioned in this case. The Milwaukee County Circuit Court case against the Equal Rights Division appears to be an administrative agency review with a hearing scheduled for November 7, 2022. Available at https://wcca.wicourts.gov/.
In the just over two months that followed the filing of the complaint in this federal case, the plaintiff also filed a motion to proceed without prepaying the filing fee, dkt. no. 2, a motion citing miscellaneous rules, dkt. no. 4, and two letters with exhibits, dkt. nos. 5, 6.
Whenever a plaintiff asks the court to allow him to proceed without prepaying the filing fee, the court must “screen” the complaint, and dismiss it if it is frivolous or malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §1915(e)(2). For a complaint to state a claim under the federal notice pleading system, it must contain a “short and plain statement of the claim” showing that the plaintiff is entitled to relief. Federal Rule of Civil Procedure 8(2)(a). A plaintiff does not need to plead every fact supporting his claims; he needs only to give the defendant fair notice of the claim and the grounds on which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). At the same time, the allegations “must be enough to raise a right to relief above the speculative level.” Id. A document filed by a person who is representing himself must be “liberally construed,” and a complaint filed by someone representing himself, “‘however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
The complaint in this case alleges that on or about August 30, 2020, the plaintiff was evicted from his “sixteen-year” apartment at 7416 Harwood Avenue, #305, Wauwatosa, Wisconsin. Dkt. No. 1 at 2. It says that JMC Properties, Jeffery Cockerham and Teresa Hayes are the “respondents,” and that JMC Properties is located at 7430 Harwood Avenue, Suite 100 in Wauwatosa, Wisconsin. Id. at 2-3. The complaint goes on to say that in an October 20, 2020 letter from the Department of Workforce Development “by and through the Equal Rights Division,” the plaintiff “was issued a ‘no probable cause'”; the complaint indicates that the letter said, “the complaint is therefore dismissed.” Dkt. No. 1 at 2.
Id. at 3. In the section titled “Relief Wanted,” the plaintiff wrote:
Under Federal Rules of Civil Procedure Rule 60(b) the plaintiff in this important matter wishes to have a more definite ruling from this court either confirming or denying emergency order #15 and the Cares Act of March 27, 2020 section 4024. Moreover, adjudication of the constitutionality of congressional enactments by administrative agencies is deserving a second look in the plaintiffs opinion. It is thought to be highly illegal by the plaintiff. Motion F.R.C.P. 60(b) in the above matter.
The court assumes that the plaintiff filed a civil rights complaint with the Wisconsin Department of Workforce Development's Equal Rights Division regarding his eviction. Wisconsin's Open Housing Law, Wis.Stat. §106.50, makes it unlawful to discriminate in housing. The Department of Workforce Development's Equal Rights Division “is vested with statutory authority to investigate alleged violations of Wisconsin's Open Housing Law . . . .” Jones v. Baecker, 373 Wis.2d 235, 252 (Wis. Ct. App. 2016). If the ERD determines that there is no probable cause to believe that discrimination occurred, it may dismiss the allegations. Wis.Stat. §106.50(6)(c)(4). At that point, the ERD must notify the parties of the complainant's right to appeal the dismissal of the claim to the secretary of the Department of Workforce Development for a hearing on the issue by the hearing examiner. Id. If the hearing examiner determines that no probable cause exists, that determination is the final determination of the department and may be appealed to the circuit court for the county in which the alleged discrimination took place by the filing of the petition for review. Wis.Stat. §106.50(6)(j).
It appears that the ERD dismissed the plaintiff's civil rights complaint, finding that there was no probable cause to believe discrimination occurred. If the plaintiff wanted to appeal the dismissal, then within thirty days of his receipt of the ERD's “no probable cause” dismissal, he needed to appeal to the circuit court for the county in which the alleged discrimination took place (because he lived in Wauwatosa, that would have been Milwaukee County). As the court already has noted, the plaintiff has two cases pending in Milwaukee County Circuit Court: one against the Equal Rights Division and one against his landlord. He filed the suit against the ERD on August 25, 2022-one year and ten months after the date on the letter he received from ERD dismissing his complaint.
Federal courts are courts of limited jurisdiction. They have the authority to consider and decide lawsuits between citizens of different states if the amount in controversy is more than $75,000-this is called “diversity jurisdiction.” 28 U.S.C. §1332. They also have the authority to consider and decide cases that involve violations of federal laws or the federal Constitution- this is called “federal question” jurisdiction. 28 U.S.C. §1331. Federal courts do not have the authority to consider and decide lawsuits alleging violations of state law unless the plaintiff lives in a different state from every defendant (and the amount of claimed damages exceeds $75,000), or unless the state-law claims relate to a federal claim.
Even if a federal court has diversity or federal question jurisdiction over the subject matter of the dispute, the Constitution gives federal courts judicial power over “cases” and “controversies.” Article III, Section 2. “Article III's ‘case or controversy' requirement prohibits federal courts from issuing advisory opinions that do not affect the rights of the parties before the court.” Matlin v. Spin Master Corp., 979 F.3d 1177, 1181 (7th Cir. 2020) (citing Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). In determining whether there is an actual controversy to decide, a court must as “whether there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance” of a judgment. Wis. Envtl. Decade, Inc. v. State Bar of Wis., 747 F.2d 407, 411 (7th Cir. 1984) (citations omitted).
This federal court does not have the authority to grant the relief the plaintiff is requesting. First, the plaintiff has not identified a basis for the exercise of federal question jurisdiction. He has not identified a federal law or provision of the Constitution that he believes the Equal Rights Division has violated. He mentions the CARES Act and a moratorium on evictions. Section 4024 of the CARES Act imposed a moratorium on evictions from certain kinds of properties for the 120-day period from March 24, 2020 through July 24, 2020. https://www.congress.gov/116/bills/hr748/BILLS-116hr748enr.pdf. Congress did not renew that moratorium, Ala. Ass'n of Realtors v. Dep't of Health and Human Servs.,U.S., 141 S.Ct. 2485, 2486 (2021), and it appears that the plaintiff was evicted over a month after the moratorium expired. Further, some courts have determined that individuals do not have a private right of action under the CARES Act. See, e.g., Turner v. Hamilton County Trustee Association, No. 1:22-cv-00275-TWP-DML, 2022 WL 1606289, at *4 (S.D. Ind. May 20, 2022).
Although he does not say so, the plaintiff may be trying to sue the Equal Rights Division under 42 U.S.C. §1983, the federal civil rights statute that allows a plaintiff to sue a “person” who has violated his civil rights while acting under color of state law. But the Equal Rights Division is not a “person;” it is an agency of the state and the state cannot be sued without the legislature's explicit consent. Lister v....
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