Rogers v. Relitz

1

CALEB JOSHUA ROGERS, Plaintiff, v. SCOTT A. RELITZ, DEBORAH RELITZ, and DENNIS G. RILEY, Defendants.

Nos. 22-cv-730-wmc, 22-cv-749-wmc^[1]

United States District Court, W.D. Wisconsin

April 4, 2023

OPINION AND ORDER

JAMES D. PETERSON DISTRICT JUDGE

In case no. 22-cv-730, pro se plaintiff Caleb Joshua Rogers alleges that he is embroiled in a conflict with other members of the American Legion Post 279 in Marshall, Wisconsin, which led them to call the police on Rogers and obtain a temporary restraining order against him. Rogers filed a highly similar amended complaint in 22-cv-749, a case that was transferred here from the Eastern District of Wisconsin.

Because Rogers proceeds in forma pauperis in 22-cv-730, I must screen the complaint under 28 U.S.C. § 1915(e)(2)(B). I must dismiss any portion of the complaint that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from an immune defendant. I must accept Rogers's allegations as true and construe them generously, holding the complaint to a less stringent standard than one a lawyer drafts. Arnett v Webster, 658 F.3d 742, 751 (7th Cir. 2011).

Because Rogers has failed to state a claim upon which relief may be granted, I will not allow Rogers to proceed in 22-cv-730. And, because Rogers's amended complaint in 22-cv-749 is essentially the same as the complaint in 22-cv-730, I will not allow Rogers to proceed in 22-cv-749 for the same reasons. See Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir. 2003).

BACKGROUND

In the Eastern District of Wisconsin, Rogers filed a complaint that like his complaint in 22-cv-730, related “to events that occurred at several meetings of American Legion Post #279.” See Rogers v. Relitz, No 22-CV-1223-PP, 2022 WL 17082035, at *1 (E.D. Wis. Nov. 18, 2022). Rogers paid the filing fee in that action. Id. The court determined that Rogers failed to state a claim because: (1) American Legion and its members or employees were not governmental actors for the purposes of a federal civil rights claim; (2) Rogers had no private right of action to sue for violations of federal criminal statutes; and (3) Rogers's allegations failed to satisfy the pleading standards in Rule 8(a)(2), preventing the court form identifying a claim on which it could grant relief. See id. at *2-4. The court also concluded that it lacked diversity jurisdiction over the case and determined that venue was proper in this district. See id. at *4-5. The court allowed Rogers to file an amended complaint to fix these problems. See id. at *5.

Rogers filed his amended complaint on December 22, 2022. The Eastern District transferred that case here, and it was assigned case number 22-cv-749. Meanwhile, on December 21, 2022, Rogers filed a complaint in 22-cv-730. The complaint in 22-cv-749 is identical to the complaint in 22-cv-730, apart from the fact that the complaint in 22-cv-730 contains extra allegations.

ALLEGATIONS OF FACT

The complaint suggests that Rogers and defendants Scott A. Relitz, Deborah Relitz, and Dennis G. Riley are members or employees of the American Legion. Whether they are employees or members is immaterial to screening the complaint, so I will call them members for simplicity. The thrust of the complaint is that Rogers had a series of disputes with defendants and other American Legion members over various procedural matters.

“Historical documents” turned up missing from a lock box at a bank. The bank manager became evasive when confronted about the removal and concealment of the historical documents. At a Dane County Council meeting, Rogers informed nondefendant K. Lovell about the “illegitimate handling and removal” of the historical documents. Lovell advised him to retain a lawyer. During an American Legion meeting, Scott Relitz was “assertive and boisterous” and the issue of the missing documents caused “exasperating tensions.”

Rogers, V. Rogers (Rogers's brother), Riley, and nondefendant G. Scallissi needed to work together during an American Legion meeting. But there was an “unexpected coup” and an “illegal transfer of keys, property, records, etc.”

At an American Legion training forum, V. Rogers told Scott Relitz that “his subordinate position needed appropriate verification of Veteran's credential[s] to hold office,” relying on a document that Riley prepared. Scott Relitz insisted that his actions were legal and jabbed V. Rogers in the chest. Riley said that everyone would testify that Scott Relitz did not assault V. Rogers. Scott Relitz had Riley call the police. The police removed Rogers and V. Rogers from the forum, stating that they were “being disorderly.” Rogers felt that he and V. Rogers were defamed as “PTSD vets.”

At a Dane County Council meeting, Scallissi prevented Rogers from submitting a request related to a “P.O.W./M.I.A.” agenda item and for “official recording to the minutes.” Before this meeting, Rogers told Scallissi that nondefendant Brad Burt could not be there, showed Scallissi the “corroborating documentation,” and informed Scallissi about Rogers's Native American heritage. Apparently, someone's “M.I.A.” status was not recognized.

Before a March 2022 American Legion meeting, Rogers and V. Rogers received expulsion papers. The documents were formatted as if they were civil charges to intimidate Rogers and V. Rogers, which allegedly violated Rogers's First Amendment rights. In the same month, a Dane County Deputy Sheriff served Rogers with a temporary restraining order from Scott Relitz, who allegedly did this to stop Rogers from participating in a Dane County Council meeting involving Burt's report on “P.O.W./M.I.A. activities.”

In June 2022, Rogers attempted to “serve recommended, preferred” criminal charges on Scott Relitz. Deborah Relitz told Scott Relitz not to sign the alleged criminal charges and to call the police. Rogers “was arrested under extra-judicial bias of law enforcement, per an E-mail received by Chief Nault of [the] Marshall Police” sent from “Assistant District Attorney John Rice.” Rogers was charged with violating a temporary restraining order even though, according to Rogers, he was no longer under one.

Rogers's other allegations are difficult to discern. For instance, Rogers alleges that Scott Relitz “failed to comply with encouraging and unqualified service, or counselling [sic], regarding Successor in Interest to Treaty with Spain and England.” Rogers adds that defendants' actions have jeopardized his “potential eligibility for membership in the American Legion” and violated the First, Second, and Ninth Amendments. Rogers seeks damages.

ANALYSIS

A. Governmental action

There is a governmental action requirement for civil actions asserting constitutional violations. See San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 542, 107 (1987) (“The fundamental inquiry is whether the [defendant] is a governmental actor to whom the prohibitions of the Constitution apply.”); Winterland Concessions Co. v. Trela, 735 F.2d 257, 262 (7th Cir. 1984) (stating that “governmental action” is necessary for liability under 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents, 403 U.S. 288 (1971)). To be liable under § 1983, defendants must have acted “under color of state law” to deprive Rogers “of some federally guaranteed right.” See Wilson v. Price, 624 F.3d 389, 392 (7th Cir. 2010). Action is taken under color of state law “when it involves a misuse of power . . . made possible only because the wrongdoer is clothed with the authority of state law.” See id. By comparison, Bivens recognized a private action for damages against federal officers that violate certain constitutional rights. See Ziglar v. Abbasi, 582 U.S. 120, 130-31 (2017). A private citizen may be liable under § 1983 if he conspires with a public employee to deprive the plaintiff of her constitutional rights. Proffitt v. Ridgway, 279 F.3d 503, 507 (7th Cir. 2002). I will assume for screening purposes that “if there is a sufficient allegation of conspiracy between a federal actor and private individuals, then a plaintiff may maintain a Bivens action against a private party.” See Szeklinski v. Neary, No. 07-C-222, 2007 WL 777539, at *1 (E.D. Wis. Mar. 12, 2007). “A complaint must contain more than mere conclusory allegations of such a conspiracy; a factual basis for such allegations must be provided.” Bowman v. City of Franklin, 980 F.2d 1104, 1107 (7th Cir. 1992); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007).

Rogers's allegations do not suggest that defendants, members or employees of the American Legion, are governmental actors. As the Eastern District of Wisconsin determined in dismissing Rogers's complaint: “The American Legion is not a state entity. Its employees (or members) are not state actors; they are private citizens.” Rogers, 2022 WL 17082035, at *3. That the American Legion “is a federally chartered corporation” does not make its employees federal employees for Bivens purposes. See 36 U.S.C. § 21701; see also Rogers, 2022 WL 17082035, at *3; Wright v. Am. Legion Dep't of Okla., Inc., 549 F.Supp.3d 1301, 1307 (N.D. Okla. 2021).

Rogers does not allege, and his allegations do not suggest, that any defendant conspired with any governmental actor. Rogers simply alleges defendants called the police on him two times which led to the service of a temporary restraining order and the institution of criminal charges. These allegations do not suggest that defendants reached a “meeting of the minds” with any state actor to violate Rogers's constitutional rights. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 158 (1970); see also Proffitt v. Ridgway, 279 F.3d 503, 508 (7th Cir. 2002) (“A private citizen does not become a policeman by complaining...