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Fells v. Division of Vocational Rehabilitation

United States District Court, E.D. Wisconsin

May 10, 2018

STEPHEN C. FELLS, Plaintiff,


          J. P. Stadtmueller, U.S. District Judge

         1. INTRODUCTION

         The plaintiff, Stephen C. Fells, (“Fells”), who proceeds in this matter pro se, challenges the decision by the Wisconsin Department of Workforce Development's Division of Vocational Rehabilitation (“DVR”) to close his file and discontinue services he had received under the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq. Fells also named as defendants Pamela Ziegler (“Ziegler”), his vocational rehabilitation counselor, and her supervisor, Lea Collins-Worachek (“Collins-Worachek”).[1]

         On February 5, 2018, Fells filed a one-page motion for summary judgment, devoid of legal argument and unaccompanied by any proposed findings of fact or citations to evidence. (Docket #21). He subsequently filed a series of additional one-page documents, purporting to supplement his summary judgement motion, that also contain no relevant argument or evidence. (Docket #28, #32, #33). On February 8, 2018, the defendants filed a motion for summary judgment, along with a supporting brief, proposed findings of fact, and declarations. (Docket #22-#27). On March 1, 2018, Fells filed a brief opposing the defendants' motion for summary judgment. (Docket #29). The defendants replied on March 14, 2018. (Docket #31). For the reasons explained below, Fells' motion for summary judgment will be denied, the defendants' motion will be granted, and this action will be dismissed with prejudice.


         Federal Rule of Civil Procedure 56 states that the “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A “genuine” dispute of material fact is created when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court construes all facts and reasonable inferences in a light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016).

         Next, as will become clear later, this case involves review of a decision by an impartial hearing officer of an administrative agency under 29 U.S.C. § 722(c)(5)(J). In such a case, this court reviews de novo the legal issues determined by the agency while giving substantial deference to the agency's policy views and factual determinations. See Wasser v. N.Y. State Office of Voc. & Educ. Servs. for Individuals with Disabilities, 602 F.3d 476, 477 (2d Cir. 2010) (per curiam); Schmidt v. Div. of Vocational Rehab. WDA Milwaukee Cty., No. 10-C-1019, 2012 WL 462954, at *3 (E.D. Wis. Feb. 13, 2012), aff'd sub nom. Schmidt v. Wis. Div. of Vocational Rehab., 502 Fed.Appx. 612 (7th Cir. 2013); Yochim v. Gargano, 882 F.Supp.2d 1068, 1077 (S.D. Ind. 2012). The court makes its determination based upon a preponderance of the evidence. Yochim, 882 F.Supp.2d at 1078 (citations omitted).


         3.1 Plaintiff's Failure to Dispute Defendants' Proposed Facts

         The relevant facts are undisputed because Fells failed to dispute them. Federal Rule of Civil Procedure 56 and Civil Local Rule 56 describe in detail the form and contents of a proper summary judgment submission. In the defendants' motion for summary judgment, they warned Fells about the requirements for his response as set forth in Federal and Local Rules 56. (Docket #22 at 1-2). They also provided Fells with copies of those Rules along with their motion. Id. at 3-12.

         In connection with their motion, the defendants filed a supporting statement of material facts that complied with the applicable procedural rules. (Docket #26). It contained short, numbered paragraphs concisely stating those facts they proposed to be beyond dispute, with supporting citations to the attached evidentiary materials. See id.

         As the party opposing the defendants' motion, Fells was required to file “a concise response to the moving part[ies'] statement of facts” containing “a reproduction of each numbered paragraph in the moving part[ies'] statement of facts followed by a response to each paragraph, including, in the case of any disagreement, specific references to the affidavits, declarations, parts of the record, and other supporting materials relied upon[.]” Civ. L. R. 56(b)(2)(B).

         Fells did not do this. His opposition brief does contain some factual assertions. For example, DVR “set [him] up for failure, ” DVR may have hypnotized him, DVR “never attempted to fully help develop a complete plan, ” DVR “acted out of meanness, ” and DVR “would not let [him] apply for self employment.” (Docket #29 at 4, 8, 9). But Fells did not provide any relevant evidence to support these assertions. Nor did he provide a response to the defendants' proposed facts.

         Though the Court is required to liberally construe a pro se plaintiff's filings, it cannot act as his lawyer, and it cannot delve through the record to find favorable evidence for him. The effect of Fells' failure is that, for the purpose of deciding summary judgment, the defendants' uncontroverted statements of material fact are deemed admitted. See Fed. R. Civ. P. 56(e); Civ. L. R. 56(b)(4); see also Fabriko Acquisition Corp. v. Prokos, 536 F.3d 605, 607-08 (7th Cir. 2008) (“[A] district court is entitled to demand strict compliance with [the local] rules for responding to a motion for summary judgment, and . . . a court does not abuse its discretion when it opts to disregard facts presented in a manner inconsistent with the rules.”) (citation omitted); Hill v. Thalacker, 210 Fed.Appx. 513, 515 (7th Cir. 2006) (noting that district courts have discretion to enforce procedural rules against pro se litigants).

         3.2 Background on the DVR

         Before turning to Fells' interactions with the DVR, the Court will begin by providing brief background details about the DVR and its services.

         Under Title I of the Rehabilitation Act, 29 U.S.C. § 720 et seq., states (like Wisconsin) that submit to certain regulatory requirements receive federal funding to provide vocational rehabilitation services to individuals with disabilities. See Mallett v. Wis. Div. of Vocational Rehab., 130 F.3d 1245, 1247 (7th Cir. 1997). Specifically, states are required to assist eligible individuals “in preparing for, securing, retaining, or regaining an employment outcome that is consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.” 34 C.F.R. § 361.48. In Wisconsin, the Rehabilitation Act is administered by DVR within the state's Department of Workforce Development. See Wis. Stat. § 47.02.

         A central component of the Rehabilitation Act is the requirement that the responsible state agency work with every eligible individual to develop an individualized plan for employment (“IPE”). See 34 C.F.R. § 361.45(a)(1). Counselors work with eligible individuals to establish a specific “employment outcome” as well as the “nature and scope of vocational rehabilitation services to be included in the IPE.” Id. § 361.45(b)(1). Services may include, for example, vocational counseling and training in a specific field. Id. ยง 361.48(b). IPEs also contain timelines for achievement of the employment outcome and the terms and ...

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