NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 8, 2013*
Decided February 12, 2013
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
Nos. 12‐2164 & 12‐2726
DAVID A. NOWICKI and BARBARA C. Appeals from the United States District
TREMEL, Court for the Eastern District of
Plaintiffs‐Appellees, Wisconsin.
v. No. 11‐CV‐0514
ALICE E. DELAO, et al., Lynn Adelman,
Defendants‐Appellants. Judge.
O R D E R
David Nowicki and Barbara Tremel appeal from the dismissal of their claims under
42 U.S.C. § 1983 and
18 U.S.C. § 1962 against several parties who they say engaged in
organized crime and committed civil rights violations by bringing a housing‐discrimination
action against them. The defendants include the state of Wisconsin, employees of the United
States Department of Housing and Urban Development, Wisconsin administrative law
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
Nos. 12‐2164 & 12‐2726 Page 2
judges and assistant attorneys general, a non‐profit fair housing organization, and Tunisha
Perkins, a disabled person. Because we agree with the district court that Nowicki and
Tremel have failed to state a civil RICO claim and that, for various reasons, they cannot
proceed under § 1983 against any of the defendants, we affirm the judgment of the district
court.
According to the plaintiffs, the defendants participated in an ongoing criminal
enterprise that targets landlords while benefitting lawyers and bogus housing‐
discrimination complainants. They explain that Nowicki was managing a rental house
owned by his “significant other,” Tremel, when Perkins called him in response to a for‐rent
sign displayed outside the house. During the conversation, Perkins informed Nowicki that
she was disabled and receiving social security disability benefits, and Nowicki responded
that he does not rent to people on public assistance because they are judgment proof.
Perkins then contacted the Metropolitan Milwaukee Fair Housing Council, a private,
nonprofit organization that investigates reports of housing discrimination, and the Council
had a “tester” call Nowicki and pose as a disabled recipient of public assistance.2 The tester
reported that Nowicki again stated that he will not rent to a disabled person whose income
comes from social security; judgments against such people, Nowicki explained to the tester,
cannot be executed. Following this call, Perkins filed a complaint against Nowicki and
Tremel with the Wisconsin Department of Workforce Development (DWD) and with HUD.
(The parties do not indicate whether either action in ongoing.)
Perkins offered to settle her federal claim against Nowicki and Tremel for $40,000,
they allege, and when they refused via email, Perkins replied that she would no longer
settle for less than $80,000. The plaintiffs attribute this settlement offer to the Metropolitan
Milwaukee Fair Housing Council, which they say provides training “on how to extort
money from defendant property owners and rental managers.” Also responsible, they
contend, are HUD, DWD, and two ALJs from DWD: The ALJs are said to have denied their
reasonable discovery requests and to have made a “veiled threat” by recommending that
they hire an attorney, while DWD and HUD are accused of failing to turn over certain
unspecified documents and of sending them certified mail (rather than mailing things the
“proper way,” which they say is regular first class). Finally, the plaintiffs contend that each
defendant, particularly the assistant attorneys general, knew or should have known that
Perkins could not have passed a credit check to rent Tremel’s house and that her “only
mission was to extort money from the plaintiffs.”
2
Utilizing testers to investigate housing discrimination is an accepted practice. See
Richardson v. Howard,
712 F.2d 319, 321 (7th Cir. 1983).
Nos. 12‐2164 & 12‐2726 Page 3
The district court granted the defendants’ motions to dismiss on various grounds.
The court dismissed the RICO portion of Nowicki and Tremel’s suit for failure to state a
claim, see FED. R. CIV. P. 12(b)(6), and then laid out its defendant‐specific reasons for
dismissing their claims under
42 U.S.C. § 1983: The ALJs are shielded from liability by
absolute judicial immunity; no allegations of wrongdoing were made against the assistant
attorneys general; the federal actors (the HUD employees) are not subject to liability under
§ 1983, which applies only to state actors; and Perkins, the Fair Housing Council, and its
employees are private parties that did not act under color of law. The court also noted that
the State of Wisconsin enjoys sovereign immunity from suit. (Additional claims were
asserted in the complaint, but the plaintiffs have abandoned them, meaning that those
claims are waived. Morales v. Jones,
494 F.3d 590, 606 (7th Cir. 2007); Hildebrandt v. Illinois
Depʹt of Natural Res.,
347 F.3d 1014, 1025 n. 6 (7th Cir. 2003).)
Nowicki and Tremel first argue on appeal that the district court was wrong to
conclude that their complaint fails to state a civil RICO claim under
18 U.S.C. § 1962(c). To
be liable under § 1962(c), a person must “‘(1) conduct (2) an enterprise (3) through a pattern
(4) of racketeering activity.’” Jennings v. Auto Meter Products, Inc.,
495 F.3d 466, 472
(7th Cir. 2007) (quoting Sedima, S.P.R.L. v. Imrex Co., Inc.,
473 U.S. 479, 496 (1985)). A
“pattern” of racketeering activity consists of at least two predicate acts of racketeering (e.g.,
extortion, mail fraud) within ten years.
18 U.S.C. § 1961(5); Jennings,
495 F.3d at 472. The
plaintiffs contend that they have satisfied the predicate‐acts requirement by alleging (1) that
Perkins’ offer to settle the housing discrimination complaint constituted extortion and (2)
that certain defendants committed mail fraud by sending letters containing unspecified
falsehoods.
We agree with the district court that the plaintiffs have failed to state a civil RICO
claim. The element they have most notably failed to satisfy is the last: racketeering activity.
To begin with, there is a wide gulf between their description of Perkins’ settlement offer and
extortion: Nowicki and Tremel were perfectly free to reject the settlement offer and did.
And even assuming that Perkins’ motives were bad and her accusations of discrimination
were false, civil RICO “demands more than a straightforward case of malicious prosecution
. . . to open up its window to treble damages.” Gamboa v. Velez,
457 F.3d 703, 710 (7th Cir.
2006). We understand that the plaintiffs are alleging something bigger than isolated
malicious prosecution when they accuse the Fair Housing Council of training complainants
to extort money from landlords, but we do not credit allegations that are merely conclusory
and speculative, Golden v. Helen Sigman & Associates, Ltd.,
611 F.3d 356 (7th Cir. 2010) (citing
Ashcroft v. Iqbal,
556 U.S. 662, 678–79 (2009)), and federal pleading standards are not
satisfied by complaints that raise only the “sheer possibility” of unlawful conduct, Iqbal, 556
at 678–79. As to the other predicate act of racketeering asserted by the plaintiffs—mail
fraud—their allegations do not meet the particularity requirement established by Federal
Nos. 12‐2164 & 12‐2726 Page 4
Rule of Civil Procedure 9(b) for fraud claims, including fraud under RICO. See Slaney v. Intʹl
Amateur Athletic Fedʹn,
244 F.3d 580, 597 (7th Cir. 2001); American Dental Assʹn v. Cigna Corp.,
605 F.3d 1283, 1291 (11th Cir. 2010); Mendez Internet Management Services, Inc. v. Banco
Santander de Puerto Rico,
621 F.3d 10, 14 (1st Cir. 2010). The plaintiffs have described neither
the purported fraud nor the mailings supposedly used in connection with it.
Nowicki and Tremel next challenge the dismissal of their § 1983 due process claims
against the Wisconsin ALJs, but we agree with the district court that the ALJs (as well as the
assistant attorneys general) are absolutely immune from claims for damages under § 1983.
See Doyle v. Camelot Care Centers, Inc.,
305 F.3d 603, 623 (7th Cir. 2002) (ALJs performing
judicial functions are absolutely immune); Lewis v. Mills,
677 F.3d 324, 331–32 (7th Cir. 2012)
(prosecutors performing prosecutorial functions, including deciding whether to bring
charges, are absolutely immune). And although the plaintiffs have waived their § 1983
claims against the other defendants by not reasserting them on appeal, we note that the
district court also properly disposed of those claims: § 1983 creates liability only for people
acting under color of state law, see Loubser v. Thacker,
440 F.3d 439, 445 (7th Cir. 2006), and
although the plaintiffs throw the phrase “under color of law” into many of their allegations,
they cannot thereby transform Perkins, the Fair Housing Council, and the federal
defendants into state actors.
Finally, the plaintiffs assert in general terms that provisions of Wisconsin’s Open
Housing Law,
Wis. Stat. § 106.50, are unconstitutionally vague. They do not, however,
develop this argument, and we need not consider any argument that is perfunctory and
undeveloped. Swanson v. United States,
692 F.3d 708, 714–15 (7th Cir. 2012); United States v.
Hassebrock,
663 F.3d 906, 914 (7th Cir. 2011).
AFFIRMED.
