United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN District Judge
Mallum brings this action under 42 U.S.C. § 1983,
alleging that defendants violated his Fourteenth Amendment
due process rights during worker's compensation
proceedings before the Wisconsin Department of Workforce
Development (DWD). Before me now are defendants' motions
to dismiss and various motions concerning, among other
things, discovery and service of process.
Wisconsin worker is injured or disabled on the job, he may
recover reasonable medical expenses and compensation for lost
wages from his employer. Mallum sought such worker's
compensation benefits from two employers, but his employers
disputed his claims, so he brought them before DWD, the state
agency authorized to adjudicate such disputes. Aaron Konkol,
a DWD administrative law judge, presided over the dispute.
Laborers' Heath Fund (WLHF) notified the parties that it
had paid certain medical expenses related to Mallum's
worker's compensation claims and asserted a right to
reimbursement for those payments. Konkol, in an email to the
parties, described DWD's authority to order direct
reimbursement out of worker's compensation benefits for
certain payments by an insurer, directed Mallum's
attorney to work with WLHF's attorney to determine
whether and to what extent WLHF was entitled to
reimbursement, and indicated that he would not approve a
“compromise agreement” between the parties while
WLHF's claim was in dispute. A compromise agreement is a
specific type of agreement that parties to worker's
compensation proceedings can submit if they prefer to settle
without a hearing. See generally Worker's
Compensation Guide, State of Wis. Dep't of Workforce
publications/wc/WKC-7580.htm (last updated Apr. 1, 2015).
ten months later, Mallum, his attorney, and his employers
signed a limited compromise agreement. Mallum agreed to
relieve his employers of liability for past medical expenses,
and in exchange, his employers agreed to pay a total of $190,
000, of which they would pay $40, 000 directly to WLHF. Later
that week, Konkol approved the terms of the compromise
agreement in an order.
sued Konkol, WLHF, DWD, and the State of Wisconsin in this
court. He alleges that Konkol peremptorily ruled, in his
email, that WLHF was entitled to reimbursement and finalized
that ruling when he ordered direct payment to WLHF according
to the compromise agreement. He further alleges that WLHF
wantonly, willfully, and maliciously interfered in his
worker's compensation proceedings in violation of state
law. Though the scope of his claims is not entirely clear,
his central claim seems to be that, despite his requests for
a hearing, he was never provided with an appropriate
opportunity to dispute WLHF's claim and, therefore, was
deprived of $40, 000 worth of worker's compensation
benefits without due process of law.
A. Motions to Dismiss
state defendants (Konkol, DWD, and Wisconsin) and WLHF
separately move to dismiss, raising many grounds for
dismissal, including sovereign and judicial immunity, the
Rooker-Feldman doctrine, and issue and
claim preclusion. I need not consider every basis for
dismissal that they raise because Mallum's complaint
clearly “fails to state a claim on which relief may be
granted” and “seeks monetary relief against a
defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B)(ii)-(iii). Defendants raise and the
parties have fully argued both of these grounds for
dismissal. To the extent that the complaint raises claims
that do not fall within the scope of § 1915(e)(2)(B),
they are beyond the subject-matter jurisdiction of this
1. Failure to State a Claim
state a cognizable claim under § 1983, a plaintiff must
plausibly allege that he was deprived of a federal
constitutional or statutory right by a person or persons
acting under color of state law. Buchanan-Moore v. County
of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing
Kramer v. Village of North Fond du Lac, 384 F.3d
856, 861 (7th Cir. 2004)); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To state a
valid due process claim under the Fourteenth Amendment, a
plaintiff must plausibly allege that the state deprived him
of life, liberty, or property without due process of law.
U.S. Const. amend. XIV, § 1.
states, state agencies, and state officials in their official
capacity are not “persons” within the meaning of
§ 1983 and cannot be sued for damages under that law.
Will v. Mich. Dep't of State Police, 491 U.S.
58, 62-71 (1989). Thus, Mallum fails to state a § 1983
claim against Wisconsin, DWD, or Konkol in his official
private actors are generally not subject to suit under §
1983 for alleged violations of the Fourteenth Amendment,
which only protects citizens from state action. Hallinan
v. Fraternal Order of Police of Chi. Lodge No. 7, 570
F.3d 811, 815 (7th Cir. 2009). A private actor can be sued
for a due process violation if its “private conduct
takes on the color of law, ” but that only happens in
limited circumstances, none of which are present here.
See Id. at 815-16 (collecting cases). Mallum
suggests that WLHF acted under color of state law because it
“conspire[d] or . . . jointly engaged with state actors
to deprive [him] of constitutional rights.”
Id. at 815 (citing Dennis v. Sparks, 449
U.S. 24, 27-28 (1980)). However, to state such a claim, a
plaintiff must allege that there was “an understanding,
or some concerted effort or plan, to cause [him] harm or
injury.” 1 Sheldon H. Nahmod, Civil Rights and
Civil Liberties Litigation § 2:22, Westlaw Next
(Updated Sept. 2016) (footnotes omitted) (citing Moore v.
Marketplace Rest., Inc., 754 F.2d 1336 (7th Cir. 1985);
Bendiburg v. Dempsey, 909 F.2d 463, 469 (11th Cir.
1990)). Mallum does not plausibly allege that WLHF did
anything more than openly assert in public proceedings ...