Rogers v. Relitz
| Decision Date | 18 November 2022 |
| Docket Number | 22-cv-1223-pp |
| Parties | CALEB JOSHUA ROGERS, Plaintiff, v. SCOTT A. RELITZ, JANE CREE and KEITH LOVELL, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
ORDER DISMISSING PLAINTIFF'S COMPLAINT WITHOUT PREJUDICE (DKT. NO. 1) AND SETTING DEADLINE FOR PLAINTIFF TO FILE AMENDED COMPLAINT
On October 18, 2022, the plaintiff-who is representing himself-filed a complaint relating to events that occurred at several meetings of American Legion Post #279, in Marshall Wisconsin, between September 2021 and June 2022. Dkt. No. 1. All three defendants are members/officers of Post #279. Id. at 2-4. Because it is unclear whether the plaintiff has stated a claim or whether the court has jurisdiction to hear the case, the court will dismiss the complaint and give the plaintiff an opportunity to amend.
Along with his complaint, the plaintiff paid the required filing fee. Under 28 U.S.C. §1915(e)(2)(B)(ii), however, a court must dismiss a case filed by a self-represented person if that complaint fails to state a claim on which relief may be granted.
To state a claim under the federal notice pleading system, a plaintiff must provide a “short and plain statement of the claim” showing that he is entitled to relief. Federal Rule of Civil Procedure 8(a)(2). A plaintiff does not need to plead every fact supporting his claims; he need only give the defendants fair notice of the claim and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, the allegations “must be enough to raise a right to relief above the speculative level.” Id. A pro se complaint must be held to less stringent standards and the court must liberally construe the allegations of the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017).
The complaint names Scott A. Relitz, Jane Cree and Keith Lovell as defendants. Dkt. No. 1 at 1. The plaintiff says that these individuals worked for “Department of WI, The American Legion” or “American Legion Post #279, Department of WI.”[1] Id. at 2-4. The complaint does not explain what role these individuals played in the American Legion.
The plaintiff mentions several statutes throughout the twenty-two-page complaint, including 18 U.S.C. §§1859, 2071, 1505, 1363 and 1369. Dkt. No. 1 at 6, 7, 9. The complaint also refers to “Historical Documents and TreatyClaims for George Washington's Legacy Arm.-18 U.S.C. §245.d” and “George Washington's Orders for” the Post, and appears to describe events the plaintiff alleges involve “illegitimate handling and removal under 18 U.S.C. of the historical documents.” Id. at 6. The complaint says that “[t]he missing documents, dishonesty, concealment, with the opportunity for additional impediments to parliamentary proceedings” “exasperate[ed] tensions.” Id. at 7. And the complaint states “[r]ecommended by presiding officer to prefer charges against culprit and conspirators.” Id. at 9.
The complaint refers to a Dane County Circuit Court case (Case No. 2022 CV 000622) in which defendant Relitz sought a temporary restraining order against the plaintiff. Dkt. No. 1 at 10, 17. Attached to the complaint is a document indicating that on March 30, 2022, the state court judge entered an injunction prohibiting the plaintiff from harassing or contacting Relitz, as well as requiring the plaintiff to avoid Relitz's residence or any other temporary premises occupied by Relitz, until March 30, 2023. Id. at 17. Part of the plaintiff's requested relief is for “S. Relitz” to “drop civil complaint,” id. at 20, which the court assumes refers to this state action.
Much of the complaint appears to focus on alleged procedural wrongdoing and deficiencies in American Legion Post #279, as exemplified by the requested relief:
Dkt. No. 1 at 20-21. The court does not know what the “George Washington Orders” or the “revitalization request” refer to, and the complaint does not provide further explanation. The other requests for relief seem to involve personal matters (such as the state court case) between the plaintiff, American Legion Post #279, and its members:
Id. The complaint requested that a U.S. Marshal serve defendants Relitz and Cree at a very specific time (October 20, 2022 at 7:00 P.M.) and appears to seek “arbitration by a Federal Magistrate Judge.” Id. at 20.
Based on these allegations, the court cannot discern a claim under federal or state law. The complaint cites 18 U.S.C. §§245, 1859, 2071, 1505, 1363 and 1369. Dkt. No. 1 at 6, 7, 9. These are all criminal statutes. “[P]rivate persons generally have no right to enforce criminal statutes or to sue under them unless the statute also creates a private right of action.” Saleem v. Helman, 124 F.3d 205 (Table), 1997 WL 527769, at *2 (7th Cir. Aug. 21, 1997) (citing Ragsdale v. Turnock, 941 F.2d 501, 509 (7th Cir.1991) (Posner, J., concurring), cert denied, 502 U.S. 1035 (1992)). See also Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 190 (1994) (); Chapa v. Adams, 168 F.3d 1036, 1038 (7th Cir. 1999) ().
The statutes cited in the complaint criminalize obstruction of proceedings before departments, agencies and committees; concealment, removal or mutilation generally; and destruction of veterans' memorials, as well as interference with federally protected activities. None of the six criminal statutes cited in the complaint create private causes of action for a civil lawsuit. This court cannot initiate criminal proceedings and it does not have the authority to enforce these federal criminal laws in a civil lawsuit. See Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007) (). As a private citizen, the plaintiff cannot compel enforcement of criminal statutes. The complaint does not state a claim on these grounds.
Section 1983 of Title 42 allows a plaintiff to sue a person who has violated his constitutional rights while acting under color of state law. If the plaintiff intends to bring civil rights claims against the defendants under §1983, he has not stated a claim. The American Legion is not a state entity. Its employees (or members) are not state actors; they are private citizens.
“Private persons are considered state actors . . . in certain limited circumstances.” Camm v. Faith, 937 F.3d 1096, 1105 (7th Cir. 2019). Id. (alterations in original) ). Additionally, “[a] private person acts under color of state law when she is a ‘willful participant in joint action with the State or its agents.'” L.P. v. Marian Catholic High Sch., 852 F.3d 690, 696 (7th Cir. 2017) (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)). Put another way, a private person may be held liable “for conspiring with a state actor to violate the constitutional rights of another.” Maniscalco v. Simon, 712 F.3d 1139, 1145 (7th Cir. 2013). “The plaintiff must identify a sufficient nexus between the state and the private actor to support a finding that the deprivation committed by the private actor is ‘fairly attributable to the state.'” Marian Catholic High Sch., 852 F.3d at 696 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). The complaint contains no allegation that the three defendants have any nexus with or affiliation with the State of Wisconsin.
Nor could the plaintiff state a claim against the American Legion or against Legion Post #279. “The American Legion is a federally chartered corporation.” 36 U.S.C. §21701. The Supreme Court has held that “a private corporation established under Federal law” is not “a governmental actor to whom the prohibitions of the Constitution apply.” San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 542-547 (1987) (internal quotations and citations omitted). In San Francisco Arts, the Court found that “[t]he fact that Congress granted it a corporate charter does not render the USOC [U.S. Olympic Committee] a Government agent,” reasoning that “[a]ll...
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