United States District Court, E.D. Wisconsin
STEPHEN C. FELLS, Plaintiff,
DIVISION OF VOCATIONAL REHABILITATION, LEA COLLINS WORACHEK, and PAMELA ZIEGLER, Defendants.
Stadtmueller, U.S. District Judge
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
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.
STANDARD OF REVIEW
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).
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
Plaintiff's Failure to Dispute Defendants' Proposed
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.
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.
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).
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.
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).
Background on the DVR
turning to Fells' interactions with the DVR, the Court
will begin by providing brief background details about the
DVR and its services.
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.
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. § 361.48(b). IPEs also contain timelines
for achievement of the employment outcome and the terms and