United States District Court, W.D. Wisconsin
D. PETERSON District Judge.
plaintiff Craig Schulz has filed a complaint alleging that
defendants wrongfully conspired to demolish his home. Schulz
asserts state law claims for “Fraud / Intentional
Misrepresentation, ” abuse of process, and civil
conspiracy. Dkt. 1, at 7-10. Schulz does not identify any
complaint does not properly allege federal jurisdiction.
Instead of dismissing the action outright for lack of
jurisdiction, I will give Schulz an opportunity to amend his
courts have limited jurisdiction, Int'l Union of
Operating Eng'rs, Local 150, AFL-CIO v. Ward, 563
F.3d 276, 280 (7th Cir. 2009), and a district court has
“an independent obligation” to determine whether
it has jurisdiction “even when no party challenges it,
” Hertz Corp. v. Friend, 559 U.S. 77, 94
(2010). Unless a complaint adequately alleges subject matter
jurisdiction, the court must dismiss the case. Smart v.
Local 702 Int'l Bhd. of Elec. Workers, 562 F.3d 798,
802 (7th Cir. 2009). The party invoking federal jurisdiction
bears the burden of establishing subject matter jurisdiction.
Id. at 802-03.
a plaintiff may establish that the court has federal
jurisdiction in two ways. First, the plaintiff may invoke
federal question jurisdiction by asserting claims that arise
under federal law. 28 U.S.C. 1331. Second, the plaintiff may
invoke diversity jurisdiction under 28 U.S.C. 1332, meaning
that the case involves claims between the parties who are
citizens of different states and that the amount in
controversy exceeds $75, 000.
all of Schulz's claims arise under state law, Dkt. 1, at
7-10, so he can proceed in this court on state law claims on
the basis of diversity jurisdiction, but he does not allege
defendants' citizenship. It appears that he cannot
establish complete diversity of citizenship: Schulz appears
to be a Wisconsin citizen and defendants Pagen, Hayden, and
VanderWaal all have Wisconsin addresses. Thus, the complaint
neither asserts a federal claim nor invokes diversity
cites a few federal statutes, namely 42 U.S.C. § 1983,
28. U.S.C. §§ 2201, 2202, 28 U.S.C. § 1343(a),
and 28 U.S.C. § 1367(a), but citing these statutes does
not establish federal question jurisdiction. Section 1983 is
a remedial statute that provides “a method for
vindicating federal rights elsewhere conferred.”
Albright v. Oliver, 510 U.S. 266, 271 (1994). It
“is not a jurisdictional statute.” Liberles
v. Cook Cty., 709 F.2d 1122, 1126 (7th Cir. 1983);
accord Anderson v. Luther, 521 F.Supp. 91, 96 (N.D.
Ill. 1981). Likewise, sections 2201 and 2202 provide
remedies, as they allow plaintiffs to seek declaratory
judgments, but they confer no jurisdiction themselves.
See Skelly Oil Co. v. Phillips Petroleum Co., 339
U.S. 667, 671-72 (1950).
1343 is a jurisdictional statute, but it does not apply
unless the asserted claims concern “rights, privileges,
or immunities” created by federal law. Kamsler v.
M. F. I. Corp., 359 F.2d 752, 754 (7th Cir. 1966).
Section 1367 confers supplemental jurisdiction over state law
claims only when the court already has a separate,
independent basis for federal jurisdiction, El v.
AmeriCredit Fin. Servs., Inc., 710 F.3d 748, 752-53 (7th
Cir. 2013), and even then, exercising supplemental
jurisdiction over state law claims is discretionary, meaning
the district court can choose not to entertain state law
claims. Volling v. Kurtz Paramedic Servs., Inc., 840
F.3d 378, 385-86 (7th Cir. 2016).
read Schulz's pro se complaint “with an
understanding eye” and give him an “ample
opportunity” to litigate on the merits. Donald v.
Cook County Sheriff's Dept., 95 F.3d 548, 555 (7th
Cir. 1996). Thus, although the legal theories identified by
Schulz does not establish federal jurisdiction, I must assess
whether he has a “colorable claim” and allow him
to amend his complaint if he does. Id.
appears to have a colorable claim for violation of procedural
due process. See Leavell v. Illinois Dept. of Natural
Res., 600 F.3d 798 (7th Cir. 2010). The Fourteenth
Amendment to the Constitution prohibits deprivation of
property “without due process of law.” U.S.
Const. amend. XIV. Courts assess procedural due process
claims in two steps. The court must first determine whether
the plaintiff had protected interest and then what process
was due. Leavell, 600 F.3d at 804.
Schulz's complaint concerns his home, so as alleged, he
has protected property interest. And I take Schulz to mean
that he tried to seek remedies in state court, but he was
denied an “opportunity to save his home.” Dkt. 1,
is difficult to tell from the complaint what happened. In
particular, there appears to have been some litigation at a
state court, but the case was eventually thrown out for an
unidentified reason. Id. at 5-6. On the other hand,
Schulz suggests that he was not allowed to participate in the
state proceeding at all. See Id. at 4-5. In the
amended complaint, Schulz should clarify whether he was a
party to any case in a state court. If not, he should say so.
He also states that Wilmington Savings Trust Society filed a
motion for a restraining order that concerns Schutz's
property. Id. at 5. Schulz should include in his
amended complaint a case number and the name of the state
court where this motion was filed. And Schulz should also
note that, if there is a state court proceeding currently
pending, then this court lacks jurisdiction. See Tyrer v.
City of S. Beloit, Ill., 456 F.3d 744, 750 (7th Cir.
also considered whether Shultz might pursue the theory that
his loss of home was an unconstitutional taking. See
Devines v. Maier, 665 F.2d 138, 141 (7th Cir. 1981). He
is free to pursue this theory, but he should note that his
claim would likely fail if his home were a nuisance to the
public. See Hendrix v. Plambeck, 420 F. App'x
589, 592 (7th Cir. 2011).
before dismissing the case for lack of jurisdiction, I will
give Shultz an opportunity to cure the jurisdictional defect
by amending his complaint. If Schulz fails to amend the
complaint or properly allege the ...