COURT OF APPEALS
DECISION
DATED AND FILED
May 25, 2010
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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Jeanine L. Jackson,
Plaintiff-Appellant,
v.
United Migrant Opportunity
Services,
Chelshete Nash, Felicia L. Powell, Keith Briggs,
Montreal Wade,
Michael Newman, Paula Lampley,
V.E. Carter Development Group, Inc., Florence McNeil,
Jean Marie Feedham, Gerarado H. Gonzalez,
Gonzalez, Saggio & Harlan, LLP, Gonzalez, Saggio
& Harlan, LLC, Angela Perry Thompson, Zatocree Fletcher
Davis, Emery K. Harlan, David R. Saggio and Barbara Mann,
Defendants-Respondents.
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APPEAL
from an order of the circuit court for Milwaukee County: elsa
c. lamelas, Judge. Affirmed.
Before Curley, P.J., Kessler and Fine, JJ.
¶1 PER CURIAM. Jeanine L. Jackson, pro se, appeals from an order dismissing
her amended complaint against United Migrant Opportunity Services (UMOS), and
several of its current and former employees and agents; the law firm of
Gonzalez, Saggio & Harlan, LLC, and several of its attorneys who had
represented UMOS in an earlier lawsuit filed by Jackson; and V.E. Carter
Development Group, Inc., a day-care business that had contracted with UMOS, and
one of Carter’s employees. The circuit
court also found that Jackson’s
lawsuit was frivolous under Wis. Stat. § 802.05,
ordered Jackson to pay attorney fees in the amount of $10,000 as a sanction,
and enjoined Jackson from further litigation against UMOS, its employees and
agents without first obtaining leave of the court. We affirm.
BACKGROUND
¶2 This is the second appeal arising from Jackson’s participation in a job-training
program at a UMOS facility in 2006. In
the first lawsuit, Jackson
alleged that Montreal Wade, a security guard at UMOS, and UMOS had
intentionally inflicted emotional distress on her, and that Wade had been
negligently supervised by UMOS personnel.
The circuit court granted the defendants’ motion for a directed verdict,
and this court affirmed. Jackson v.
UMOS, No. 2008AP1987, unpublished slip op. (WI App July 7, 2009).
¶3 This appeal arises from a second lawsuit commenced by Jackson against many of
the same defendants involved in her first lawsuit. In addition, Jackson targeted additional UMOS employees,
the attorneys who had represented UMOS in the first lawsuit, a day-care facility
operated at a UMOS site, and its director, Florence McNeil. In an amended complaint containing 306
paragraphs,
Jackson
attempted to allege several causes of action, which she described as: harassment; negligence; negligent infliction
of emotional distress; blackmail; defamation; negligent supervision; 42 U.S.C.
§§ 1983 and 1985; and intentional infliction of emotional distress. All of the defendants moved to dismiss and/or
for summary judgment. Following a hearing,
the circuit court granted the defendants’ motions and ordered that Jackson’s amended
complaint be dismissed with prejudice. The trial court also granted the defendants’
motion for sanctions under Wis. Stat. § 802.05.
¶4 On June 3, 2008, while the first lawsuit was pending in
circuit court before the Honorable Michael B. Brennan, Jackson
made a telephone call to the day-care facility located at the UMOS Job
Center. Jackson spoke
with McNeil, who knew Jackson
from prior interactions. During the
conversation, Jackson
made comments that McNeil felt were threatening. McNeil reported them to UMOS management, and
the entire UMOS site was evacuated for the afternoon. The comments were also reported to
police. Following Jackson’s threats, UMOS
sought and obtained an injunction under Wis.
Stat. § 813.125, prohibiting Jackson from further contact with
UMOS, and its employees and agents, except through UMOS’s attorneys, Gonzalez,
Saggio & Harlan. In granting the
injunction to UMOS, Judge Brennan found that McNeil was “very credible,” and
that Jackson
was “not credible” when she denied making the threats. Judge Brennan further found that Jackson had made an
“implied threat of violence or an implied threat of harm to McNeil and other
individuals” present at the UMOS site. Jackson was later charged
with disorderly conduct arising from the telephone call.
DISCUSSION
¶5 We review de novo a
circuit court’s grant of summary judgment.
Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315–317, 401 N.W.2d 816,
820–821 (1987). Summary judgment must be
granted when there is no genuine issue of material fact and a party is entitled
to judgment as a matter of law. Wis. Stat. § 802.08(2). Under well-settled summary judgment
methodology:
th[is] court first examines the pleadings to determine
whether claims have been stated and a material issue presented. If the complaint states a claim and the
pleadings show the existence of factual issues, the court examines the moving
party’s affidavits or other evidence for evidentiary facts admissible in
evidence or other proof to determine whether that party has made a prima facie case for summary judgment. If the moving party made a prima facie case,
the court examines the opposing party’s affidavits for evidentiary facts or
other proof to determine whether a genuine issue exists as to any material
fact, or reasonable conflicting inferences may be drawn from the undisputed
facts, and therefore a trial is necessary.
State Bank of La Crosse
v. Elsen, 128 Wis. 2d
508, 511, 383 N.W.2d 916, 917 (Ct. App. 1986).
¶6 Initially, we reject Jackson’s
contention that the circuit court erroneously stayed discovery and proceeded to
address the defendants’ motion for summary judgment. The first step in the summary judgment
methodology is to examine the pleadings to determine whether a claim has been
stated. As discussed below, Jackson’s amended
complaint, when examined against facts established in the first lawsuit, does
not state any viable causes of action.
Therefore, discovery would have served no useful purpose.
¶7 Jackson’s
amended complaint alleged eight causes of action. We will address them seriatim below. In her
amended complaint, Jackson
did little to differentiate between the many defendants, and unless necessary
to the analysis, we will refer to the defendants generally. Further, in light of the scattergun nature of
the amended complaint and Jackson’s disjointed appellate argument, we begin by
noting that to the extent that we do not address a point mentioned by Jackson,
we deem it inadequately briefed and, therefore, not worthy of response. See State v. Waste Mgmt. of Wis., Inc.,
81 Wis. 2d
555, 564, 261 N.W.2d 147, 151 (1978) (“An appellate court is not a performing
bear, required to dance to each and every tune played on an appeal.”).
A. Defamation
¶8 Jackson alleged that various defendants intentionally made
false statements to the police in connection with the June 3, 2008, telephone
call which subjected her to public hatred and humiliation, that the defendants
acted willfully and wantonly, and that the defendants knew the statements were
false. The circuit court properly
granted summary judgment in favor of the defendants on this claim.
¶9 The elements of a defamatory communication are:
“(1) a false statement; (2) communicated by speech,
conduct or in writing to a person other than the person defamed; and, (3) the
communication is unprivileged and tends to harm one’s reputation so as to lower
him or her in the estimation of the community or to deter third persons from
associating or dealing with him or her.”
Torgerson v. Journal/Sentinel,
Inc., 210 Wis. 2d
524, 534, 563 N.W.2d 472, 477 (1997) (citation omitted). Wisconsin
Stat. § 802.03(6) requires that “[i]n an action for libel or
slander, the particular words complained of shall be set forth in the
complaint.” That requirement has been
interpreted to mean that the specific words upon which the plaintiff bases the
claim must be alleged in the complaint. See Olston v. Hallock, 55 Wis. 2d 687, 700,
201 N.W.2d 35, 41 (1972). Although Jackson repeatedly alleged
that various defendants made false statements to the police, nowhere did she
set forth the “particular words” used by any of the defendants. Moreover, in the first lawsuit, Judge Brennan
expressly found that Jackson
had made implied threats to UMOS and its employees during the June 3, 2008,
telephone call. Issue preclusion
precludes Jackson from relitigating that finding
and, therefore, Jackson’s
characterization of the defendants’ statements concerning the incident as false
is incorrect. See Michelle T. v. Crozier,
173 Wis. 2d
681, 687, 495 N.W.2d 327, 329 (1993) (issue preclusion limits the relitigation
of issues that have been contested in a previous action between the same
parties). As will be seen below, Judge
Brennan’s factual findings, which Jackson cannot
relitigate, are critical components to the failure of several of Jackson’s claims.
B. Harassment
¶10 Jackson alleged that the defendants filed false police reports
regarding the June 3, 2008, telephone call in an effort to compel her to drop
the first lawsuit. Similar to the
defamation claim, Jackson’s description of the
police reports as false is inaccurate in light of Judge Brennan’s finding that Jackson had made threats
against UMOS during the June 3, 2008, telephone call. Additionally, Wis. Stat. § 947.013, which criminalizes certain
harassing behavior, does not create a private cause of action—aggrieved persons
instead may seek relief under Wis. Stat.
§ 813.125. See Estate of Drab v. Anderson, 143 Wis. 2d 568,
570–573, 422 N.W.2d 144, 145–146 (Ct. App. 1988). The circuit court correctly dismissed Jackson’s harassment
claim.
C. Negligent
Infliction of Emotional Distress
¶11 In this claim, Jackson again alleged that the false statements
of the defendants caused police to harass her, that UMOS and V.E. Carter, as
employers, were responsible for their employees’ actions, and that UMOS
attorneys caused her to suffer emotional distress when they “constantly
accus[ed] [her] of criminal activities” during the first lawsuit.
¶12 A claim for negligent infliction of emotional distress contains
three elements: “(1) that the
defendant’s conduct fell below the applicable standard of care, (2) that the
plaintiff suffered an injury, and (3) that the defendant’s conduct was a
cause-in-fact of the plaintiff’s injury.”
Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 632, 517 N.W.2d 432, 434 (1994). Additionally, “a plaintiff must prove …
severe emotional distress [although] the plaintiff need not prove physical
manifestation of that distress.” Ibid.
¶13 The circuit court correctly granted summary judgment on this
claim. Because the defendants’
statements to the police were not false, Jackson
cannot show that their conduct violated any standard of care. Additionally, severe emotional distress
cannot be a temporary discomfort and must be of ‘“‘such substantial quantity or
enduring quality that no reasonable person could be expected to endure it.’” Hicks v. Nunnery, 2002 WI App 87,
¶26, 253 Wis. 2d
721, 742–743, 643 N.W.2d 809, 818 (citation omitted). Jackson’s
allegations that she had “problems sleeping,” was “nervous,” and “suffered a
mild seizure in her sleep” do not rise to the level of “severe emotional
distress” necessary to support a claim for the negligent infliction of
emotional distress.
D. Intentional
Infliction of Emotional Distress
¶14 Jackson
alleged that the defendants made false statements about her “which caused her
to have emotional distress,” that the defendants subjected her “to public
hatred, and serious criminal allegations,” and that because of the defendants’
conduct, she “has lost all desire to want to become a lawyer” and “has suffered
from anxiety, depression, and loss of sleep.”
¶15 A claim for intentional infliction of emotional distress
contains four elements: (1) the
defendant intended to cause emotional distress by his or her conduct; (2) the
conduct was extreme and outrageous; (3) the “conduct was a cause-in-fact of the
plaintiff’s emotional distress; and (4) that the plaintiff suffered an extreme
disabling response to the defendant’s conduct.” Rabideau v. City of Racine, 2001 WI
57, ¶33, 243 Wis. 2d
486, 501, 627 N.W.2d 795, 802–803.
Again, the linchpin of Jackson’s
claim—the falsity of the defendants’
statements—is missing. Therefore, the
defendants’ conduct cannot be considered “extreme and outrageous.” And, as with the claim for negligent
infliction of emotional distress, Jackson
did not allege “an extreme disabling response.” See id.
E. Negligence
¶16 Jackson alleged that the defendants “mishandle[d] the situation
between” herself and McNeil with regards to the June 3, 2008, telephone call,
that McNeil caused Jackson and her minor daughter to suffer emotional distress,
that the defendants caused Jackson “to be subjected to harassment, by law
officials,” and that the employer-defendants are responsible for their
employees’ conduct. The circuit court
noted that Jackson’s
claim for negligence was, in actuality, a claim for the negligent infliction of
emotional distress, and granted summary judgment. We agree with the circuit court. In addition to the same failing identified
above, that is, that the statements were found to be not false, “[s]tatements
made in the course of judicial proceedings are absolutely privileged and
insulate the speaker from liability so long as the statements ‘bear a proper
relationship to the issues.’” Snow
v. Koeppl, 159 Wis. 2d
77, 80, 464 N.W.2d 215, 216 (Ct. App. 1990) (citation omitted). Because the defendants’ statements
were made in connection with UMOS’s request for a harassment restraining order
filed in the first lawsuit, they were privileged, and Jackson cannot rest a negligence claim upon
them.
F. Blackmail
¶17 Jackson alleged that Wade came to her house while the first
lawsuit was pending “to try to intnimade [sic]” her into dropping the state
lawsuit and a federal lawsuit, and that the defendants filed a false police
report in connection with the June 3, 2008, telephone call “as leverage, in an
attempt to have [her] … drop her federal and state case[s].” Like the other claims, the finding that the
defendants’ statements concerning the June 3, 2008, telephone call were not
false dooms Jackson’s
attempted blackmail claim. Additionally,
like the harassment claim, the criminalization of blackmail, see Wis.
Stat. § 943.30, does not create a private cause of action, see United States ex rel. Verdone v. Circuit Court for
Taylor County, 851 F. Supp. 345, 352 (W.D. Wis. 1993).
G. Negligent
Supervision
¶18 Jackson alleged that UMOS and
V.E. Carter, as employers of some of the individual defendants, did not
adequately train their employees who subjected Jackson to “public hatred, and ridicule” by
police officers. Because Jackson’s claims against the employee-defendants fail, as
discussed above, Jackson
necessarily has no claim against the employers for negligent supervision.
H. 42 U.S.C.
§§ 1983 and 1985
¶19 Lastly, Jackson
alleged that the defendants violated her civil rights “by intentionally intimadat[ing],
[and] threatening” her in an attempt to get her to drop her state and federal
lawsuits. To state a claim under 42
U.S.C. § 1983, Jackson must allege facts sufficient to show that the
defendants, acting under color of state law, deprived her of a specific right
or interest protected by the Constitution or the laws of the United States. See
Bublitz
v. Cottey, 327 F.3d 485, 488 (7th Cir. 2003). A § 1983 claim is tenable only if the
defendants are state actors. See Gayman v. Principal Fin. Servs., Inc.,
311 F.3d 851, 852 (7th Cir. 2002). Simply put, the § 1983 claim fails
because Jackson
did not allege that any of the defendants are state actors. Although a claim under 42 U.S.C. § 1985
does not require the involvement of state actors, Jackson must show that “the
conspirators did or caused to be done an act in furtherance of the conspiracy
that injured [her] or deprived … her of having and exercising any right or
privilege of a citizen of the United
States.” See Lac
du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty
Abuse-Wisconsin, Inc., 759 F. Supp. 1339, 1351 (W.D. Wis. 1991). Jackson’s
amended complaint does not contain any such allegations.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.