United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE.
case has dragged on for over two years. After an appeal and
two rounds of amendments to the complaint, Plaintiff still
has not stated sufficient allegations to survive screening
under 28 U.S.C. § 1915. As a consequence, the Court will
dismiss this action. Before proceeding to the screening of
the second amended complaint, the Court will first set out
the relevant factual background.
Plaintiff's prior complaints and his earlier appeal in
this case, the Court discerned the following facts. Plaintiff
was terminated from his employment at a local high school. He
then brought a claim for racial discrimination before the
Equal Rights Division (“ERD”) of the Wisconsin
Department of Labor Review Commission (the
“Commission”). He simultaneously filed an action
in the district court, Tracey Coleman v. ABM
Industries, Case No. 14-CV-435-WEC (E.D. Wis.). That
action was dismissed with prejudice by joint stipulation of
the parties. The administrative law judge (“ALJ”)
from the ERD dismissed the agency proceeding because
Plaintiff missed a deadline. (Docket #29 at 9-11). The
gravamen of the present action is Plaintiff's contention
that he never received the letter notifying him of the
deadline or the potential for dismissal. Id. The
same day his case was dismissed, Plaintiff appealed to the
Commission. Id. The appeal was unsuccessful. See
first amended complaint, which the Court screened on March
26, 2018, Plaintiff did not bring these factual allegations
together in a coherent fashion, nor did he express with even
minimal clarity what claim he wanted to make or what relief
he sought. See (Docket #31 at 2-7). Although he had
been given a chance to amend the complaint once before and
failed, the Court found it prudent to afford him one more
chance to do so. Id. He filed his second amended
complaint on April 13, 2018. (Docket #32).
have not improved much in the second amended complaint; it
borders on being indecipherable and contains many passages
copied directly from Plaintiff's appellate briefs.
Nevertheless, the Court can gather the following allegations
from the document. In the second amended complaint, Plaintiff
names three commissioners of the Commission, as well as the
Commission itself. Id. at 1. Plaintiff alleges that
the ALJ of the ERD sent him a letter dated April 3, 2015,
directing him to contact the ERD to advise it how to proceed
with his discrimination claim. (Docket 32-1 at 1). The letter
warned Plaintiff that if he did not respond by April 23,
2015, the administrative case would be dismissed.
Id. Plaintiff did not receive the letter because
“he was out looking for a job.” Id. at
11. The only letter he received from the ERD was the
ALJ's order dismissing his claim, which was sent on April
24, 2015. Id. He appealed the dismissal to the
Commission but was unsuccessful. See Id. As a
remedy, Plaintiff asks for money damages “because my
claim was violated.” (Docket #32 at 4).
prior screening order, the Court set forth the legal
framework that governed Plaintiff's claim. Plaintiff
seeks to vindicate a denial of procedural due process in
connection with the ERD action. (Docket #31 at 6). A
procedural due process claim pursuant to 42 U.S.C. §
1983 asks (1) “whether there exists a liberty or
property interest which has been interfered with by the
State, ” and (2) “whether the procedures
attendant upon that deprivation were constitutionally
sufficient.” Hinkle v. White, 793 F.3d 764,
767 (7th Cir. 2015). As the Court earlier noted,
Plaintiff's legal claim of racial discrimination before
the ERD qualifies as a protectable property interest.
Logan v. Zimmerman Brush Co., 455 U.S. 422, 428
(1982) (“[A] cause of action is a species of property
protected by the Fourteenth Amendment's Due Process
Clause.”); Bennett v. Tucker, 827 F.2d 63, 70
(7th Cir. 1987). Further, the Court determined that the
adequacy of the ERD's or Commission's mailing
procedures could probably be analyzed under Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 314
problem with the amended complaint was that it contained very
little factual information to support Plaintiff's claim.
(Docket #31 at 7). Instead, the facts giving rise to the
claim were gathered by the Court from a large body of
documents submitted in this action and in the Court of
Appeals. Id. Plaintiff has remedied that problem to
a small extent in the second amended complaint.
now that Plaintiff has more clearly defined his claims,
another set of problems has arisen, and these are fatal to
the continuation of this action. First, the Commission must
be dismissed as a defendant, for as the Court has told
Plaintiff repeatedly, it is not a “person”
amenable to suit under Section 1983. (Docket #31 at 8);
Thomas v. Illinois, 697 F.3d 612, 613 (7th Cir.
2012). Second, the other defendants-all commissioners of the
Commission-must also be dismissed. Because they perform
adjudicative functions with respect to administrative claims
like Plaintiff's, they enjoy absolute immunity from
claims for damages under Section 1983. Snyder v.
Nolen, 380 F.3d 279, 286 (7th Cir. 2004); Crenshaw
v. Bayard, 180 F.3d 866, 868 (7th Cir. 1999)
(commissioners of the Indiana Civil Rights Commission
entitled to absolute immunity); Wilson v. Kelkhoff,
86 F.3d 1438, 1445 (7th Cir. 1996) (absolute immunity
applicable to prisoner review board members making parole
revocation decisions). The same would be true for the ALJ of
the ERD, had he or she been named as a defendant. Doyle
v. Camelot Care Ctrs., Inc., 305 F.3d 603, 623 (7th Cir.
2002); Nowicki v. Delao, 506 Fed.Appx. 514, 517 (7th
Cir. 2013). 
such immunity would not necessarily extend to the clerical
official at the ERD who actually mailed the April 3, 2015
letter. Court staff can in certain instances claim the same
immunity as judges, including (1) when they perform judicial
or quasi-judicial functions, or (2) when they undertake
administrative actions pursuant to the explicit direction of
a judicial officer. See Kincaid v. Vail, 969 F.2d
594, 600-02 (7th Cir. 1992); Snyder, 380 F.3d at
286-87. Neither circumstance would appear to protect the ERD
clerical staff in this instance, at least on the facts as
alleged in the second amended complaint. First, mailing a
letter is not an adjudication of rights nor does it involve
the exercise of discretionary decision-making. Antoine v.
Byers & Anderson, Inc., 508 U.S. 429, 435-36 (1993).
Second, although the clerk likely sent the letter at the
direction of the ALJ, courts distinguish between a
judge's order and the manner in which the order is
carried out. See Richman v. Sheahan, 270 F.3d 430,
434 (7th Cir. 2001). Thus, while the clerk could not be
liable for the act sending the letter, he or she would not be
immune from liability for misfeasance in mailing the letter.
See Lowe v. Letsinger, 772 F.2d 308, 313 (7th Cir.
1985); Kincaid, 969 F.2d at 601.
none of Plaintiff's allegations to date, whether before
this Court or the Seventh Circuit, suggest that this unknown
clerical employee was anything worse than negligent in
mishandling the April 3, 2015 letter. The Court of Appeals
recently emphasized that, like other constitutional claims,
claims for deprivation of procedural due process cannot rest
on mere negligence:
[T]he Eighth Amendment is violated by acts or omissions that
exhibit deliberate indifference; mere negligence is
insufficient. [Armato v. Grounds, 766 F.3d 713, 721
(7th Cir. 2014)]. Similarly, negligent conduct by a state
official does not implicate the Due Process Clause.
Daniels v. Williams, 474 U.S. 327, 333-34, 106 S.Ct.
662, 88 L.Ed.2d 662 (1986); Kingsley v. Hendrickson,
___ U.S. ___, 135 S.Ct. 2466, 2472, 192 L.Ed.2d 416 (2015)
(“‘liability for negligently inflicted harm is
categorically beneath the threshold of constitutional due
process.'”) (quoting County of Sacramento v.
Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d
1043 (1998)); Davis v. Wessel, 792 F.3d 793, 801
(7th Cir. 2015) (same).
Aguilar v. Gaston-Camara, 861 F.3d 626, 633 (7th
Cir. 2017). In Aguilar, the Seventh Circuit affirmed
the dismissal of a procedural due process claim by a prisoner
alleging that state officials misclassified him as being on
extended supervision status as opposed to parole status.
Id. at 628-29. The former classification carried
harsher penalties for violations of release conditions.
Id. The court rejected his procedural due process
claim based on the misclassification, reasoning that
“the evidence. . .does not suggest more than
negligence, and that is insufficient to support a due process
claim just as it fails to support the Eighth Amendment
claim.” Id. at 633.
instructs that the Court cannot entertain Plaintiff's
potential claim against the ERD clerical staff, assuming he
had tried to assert it. Notably, Plaintiff's allegations
do not actually accuse any ERD or Commission official of
doing something incorrectly with respect to mailing the April
3, 2015 letter; instead, his only complaint seems to be that
he was out for the day on April 3, 2015 and did not receive
the letter. How could the ERD clerk have any control over
that circumstance? Moreover, even if some official did
mishandle the letter, there is no allegation raising a
plausible inference that this was the result of something
more than negligence. In short, the allegations in this case
all point to, at most, a simple mistake in mailing, and this
does not trigger constitutional protections under the Due
Court takes seriously its duty to generously construe the
filings of pro se parties. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). It also appreciates that
it is not to demand the pleading of facts, but simply the
pleading of claims. Chapman v. Yellow Cab Coop., 875
F.3d 846, 848 (7th Cir. 2017). But because none of
Plaintiff's allegations at any stage in this proceeding-
whether here or in the Court of Appeals-hint at, much less
allege, anything more than negligence on the part of state
officials, the case cannot proceed. The Court's duty to
generously construe the contents of the documents submitted
by pro se parties does ...