United States District Court, E.D. Wisconsin
CRYSTAL L. HOLTZ, Plaintiffs,
JOSH KAUL, JACK RAKOWSKI, and UNEMPLOYMENT INSURANCE, Defendants.
Stadtmueller U.S. District Judge.
November 8, 2019, the plaintiff, Crystal L. Holtz
(“Holtz”), filed a pro se complaint and
a petition to proceed in forma pauperis. (Docket #1
and #2). She subsequently filed an amended complaint. (Docket
#4). The amended complaint supersedes the first complaint and
is the governing pleading in this case. See Massey v.
Helman, 196 F.3d 727, 735 (7th Cir. 1999). In order to
allow a plaintiff to proceed without prepaying the $400
filing fee, the Court must first decide whether the plaintiff
has the ability to pay the filing fee and, if not, whether
the lawsuit states a claim for relief. 28 U.S.C. §§
question of indigence, although the plaintiff need not be
totally destitute, Zaun v. Dobbin, 628 F.2d 990, 992
(7th Cir. 1980), the privilege of proceeding in forma
pauperis “is reserved to the many truly
impoverished litigants who, within the District Court's
sound discretion, would remain without legal remedy if such
privilege were not afforded to them, ” Brewster v.
N. Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir.
1972). Holtz's motion states that she is unemployed,
unmarried, and has one dependent child. (Docket #2 at 1). She
receives $240 per month for child support. Id. She
has not received a paycheck since early October when she was
terminated from her employment. Id. at 2. She took
about $2, 500 out of her retirement fund to support herself,
id., and it appears this withdrawal emptied the
account, id at 4. Her monthly expenses total $2,
743. Id. at 2-3. Her assets include a car worth
approximately $13, 000 and a bank account holding $50.
Id. at 3. In light of these representations, the
Court finds that Holtz is indigent for purpose of prepaying
the filing fee. She will be granted leave to proceed in
notwithstanding the payment of any filing fee, the Court must
dismiss a complaint or portion thereof if it has raised
claims that are legally “frivolous or malicious,
” that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2)(B). To
state a cognizable claim under the federal notice pleading
system, a plaintiff is required to provide a “short and
plain statement of the claim showing that [she] is entitled
to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not necessary
for the plaintiff to plead specific facts and her statement
need only “give the defendant fair notice of what
the…claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). However, a complaint that offers
“labels and conclusions” or “formulaic
recitation of the elements of a cause of action will not
do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). To state a claim, a complaint must contain sufficient
factual matter, accepted as true, “that is plausible on
its face.” Id. (quoting Twombly, 550
U.S. at 570).
explains in her complaint that she recently applied for
unemployment benefits in Wisconsin, and a hearing on her
petition was held on or around November 6, 2019. (Docket #4
at 2-3). Defendant Jack Rakowski (“Rakowski”) was
the administrative law judge presiding at the hearing.
Id. She asked that she be supported by an “ADA
Advocate” at the hearing, but the state did not provide
one. Id. at 2. Holtz solicited her own volunteer ADA
Advocate, but during the telephone hearing, Rakowski
“disallowed” the volunteer advocate from
participating. Id. at 3. Holtz believes this
decision violated her rights under the Americans with
Disabilities Act, 42 U.S.C. §§ 12101 et
seq. (“ADA”). Id. at 3.
Specifically, Holtz cites to a regulation implementing Title
II of the ADA, 28 C.F.R. § 35.160 et seq.,
which requires public entities to communicate effectively
with disabled people, such as those with vision or hearing
disabilities. Holtz also complains that she was denied due
process because she was not permitted to cross examine the
witness who had made the “original complaint”
against Holtz, accusing her of using alcohol. (Docket #4 at
Holtz asks this Court to declare the ADA applicable to her
proceeding and, as relief for both the ADA and due process
violations, to order Rakowski to redo the hearing.
Id. at 5.
amended complaint implies two possible claims. First, it
seems Holtz is attempting to allege a claim for ADA
discrimination against the Wisconsin state agency responsible
for adjudicating claims for unemployment benefits. To prove a
prima facie case of discrimination under Title II
the ADA, a plaintiff must show: (1) that she is a qualified
individual with a disability; (2) that she was denied the
benefits of the services, programs, or activities of a public
entity or otherwise subjected to discrimination by such an
entity; and (3) that the denial or discrimination was by
reason of her disability. Lacy v. Cook Cty., 897
F.3d 847, 853 (7th Cir. 2018). At the pleadings stage, a
plaintiff must allege her “specific disability”
because “the defendant in a disability discrimination
suit does not have fair notice when the plaintiff fails to
identify [her] disability.” Tate v. SCR Med.
Transp., 809 F.3d 343, 345-46 (7th Cir. 2015).
ADA cannot proceed as currently pled. The most fundamental
problem is that Holtz has not alleged what her disability is.
This basic piece of information is a requirement of notice
pleading. She also does not allege with sufficient detail how
she was denied the benefit of the services of the public
entity that administered the hearing. In other words, Holtz
does not allege how Rakowski's decision to disallow the
participation of Holtz's advocate caused Holtz to be
“excluded from participation in a public entity's
program because of [her] disability.” Glick v.
Walker, 272 Fed.Appx. 514, 521 (7th Cir. 2008) (citing
42 U.S.C. § 12132). Holtz's ADA claim will be
dismissed without prejudice.
second claim, Holtz alleges that her right to due process was
violated because she was not permitted to cross-examine the
person who made a complaint that, presumably, led to her
termination. The Fourteenth Amendment guarantees that no
state shall “deprive any person of life, liberty, or
property without due process of law.” In the Seventh
Circuit, it is well-settled that claimants' receipt of
unemployment insurance benefits is a property right, and
therefore a state may not deny those benefits without notice
and an opportunity for a fair hearing. Cosby v.
Ward, 843 F.2d 967, 982 (7th Cir. 1988). The question
presented by Holtz's amended complaint, then, is whether
Holtz's inability to cross-examine witnesses could have
rendered her hearing unfair. There is “no absolute
right of confrontation in civil cases, ” but in
“particular cases, live testimony and cross-examination
might be so important as to be required by due
process[.]” Van Harken v. City of Chi., 103
F.3d 1346, 1352 (7th Cir. 1997) (citing Richardson v.
Perales, 402 U.S. 389, 402 (1971).
due process claim will go forward, but not against the
individually-named defendants, Josh Kaul (“Kaul”)
and Rakowski. Holtz makes no allegations about Kaul in her
amended complaint; he appears only in the caption. She has
therefore not alleged that he was personally involved in the
constitutional violation. Colbert v. City of Chi.,
851 F.3d 649, 657 (7th Cir. 2017) (individual liability under
Section 1983 requires personal involvement in the alleged
Rakowski, the administrative law judge, Section 1983 bars her
claim against him individually. The statute provides that
“in any action brought against a judicial officer for
an act or omission taken in such officer's judicial
capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable.” 42 U.S.C. § 1983. Holtz is not
entitled to injunctive relief against Rakowski because she
does not allege that a declaratory decree was violated or
that declaratory relief is unavailable.
even if this Court were to assume that injunctive relief
against Rakowski is not barred under Section 1983,
Holtz's individual-capacity claim would still fail. The
policies underlying judicial immunity suggest that immunity
should be granted where, as here, a litigant seeks an
injunction compelling a judge to alter his former decision.
See Davis v. Graves, No. 16-CV-3233, 2016 WL
4493845, at *2 (C.D. Ill. Aug. 26, 2016) (citations omitted).
This Court is not empowered to interfere with a state court
proceeding in the way Holtz requests.
other hand, official-capacity suits against state officials
that seek only prospective injunctive relief are permitted by
Section 1983 and not forbidden by the Eleventh Amendment.
Will v. Mich. Dep't of State Police, 491 U.S.
58, 71 n.10 (1989); Ex Parte Young, 209 U.S. 123,
(1908); Power v. Summers, 226 F.3d 815, 819 (7th
Cir. 2000). Holtz is therefore not precluded from proceeding
against Rakowski in his official capacity. However, because
an official-capacity suit is deemed to be against the entity
of which an officer is an agent, Kroll v. Bd. of Trustees
of Univ. of Ill., 934 F.2d 904, 907 (7th Cir. 1991), and
because the proper defendant in a claim for injunctive relief
is the supervisory government official who would be
responsible for ensuring injunctive relief is carried out,
Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir.
2011), the more appropriate defendant in this case is Caleb
Frostman (“Frostman”), the Secretary of the
Wisconsin Department of Workforce Development
(“WDWD”). For the sake of clarity, the Court will
dismiss Rakowski and substitute Frostman as a defendant for
purposes of the due process claim.
the Court will dismiss the portion of Holtz's amended
complaint relating to allegations under the ADA. This case
will move forward only as to the due process claim alleged in
Holtz's amended complaint. If she so desires, Holtz can
file a motion for leave to file a second amended complaint
that corrects the deficiencies the Court identified above
with respect to her ADA claim. Holtz is warned that if she
files a second amended complaint, that pleading will
supersede her amended complaint; it therefore must be
complete in itself without reference to any earlier
pleadings. See Duda v. Bd. of Educ. of Franklin Park Pub.
Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir.
is instructed to serve her amended complaint on Defendant
Frostman. She can do this in one of two ways. She may obtain
service on her own accord, or she may ask the Court to order
service by the U.S. Marshal. If Plaintiff wishes to effect
service herself, she should file a request for the Clerk of
the Court to issue a service packet to her. If she desires
service by the U.S. Marshal, she must file a letter with this
Court asking for an appropriate order. The current fee for
waiver-of-service packages is $8.00 per item mailed. The full
fee schedule is provided at 28 C.F.R. §§
0.114(a)(2), (a)(3). ...