NONPRECEDENTIAL DISPOSITION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 May 2, 2012*
Decided May 4, 2012
Before
KENNETH F. RIPPLE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SKYES, Circuit Judge
No. 11‐3724
JANELLE L. BARLASS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Western District of Wisconsin.
v. No. 10‐cv‐454‐slc
CITY OF JANESVILLE, WISCONSIN, et al., Stephen L. Crocker,
Defendants‐Appellees. Magistrate Judge.
O R D E R
Janelle Barlass operated “Corvinas,” a bar in Janesville, Wisconsin, before she
surrendered the premises after a dispute with her landlord. In this action under
42 U.S.C.
§ 1983 and Wisconsin law, Barlass alleges that the City and its former deputy chief of police,
Steven Kopp, harassed her and her customers partly because the clientele was
predominately African American, and partly because she had accused the police
department of racism at a July 2009 public hearing conducted by the City’s alcohol‐licensing
authority. This harassment, Barlass claims, denied her patrons equal protection and violated
her rights under the First Amendment. She also claims that the Janesville Gazette and the
owner of a neighboring bar, Denise Carpenter, defamed her in reporting and commenting
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus we deny Barlass’s motion requesting oral argument, and the appeal is
submitted on the briefs and record. See FED. R. APP. P. 34(a)(2)(c).
No. 11‐3724 Page 2
about nuisance allegations leveled against her establishment. (Barlass has abandoned
additional claims that were brought against these and other defendants but dismissed at
screening. See
28 U.S.C. § 1915(e)(2)(B); Rowe v. Shake,
196 F.3d 778, 781 (7th Cir. 1999).)
The defendants all moved for summary judgment and submitted proposed factual
findings complying with a standing rule of the magistrate judge presiding by consent.
Barlass was (and still is) pro se, but none of the defendants included the warnings required
about the workings of Federal Rule of Civil Procedure 56. See Timms v. Frank,
953 F.2d 281,
283–85 (7th Cir. 1992). Barlass responded, though not in the form mandated by the standing
rule and, in many instances, without citing evidence in the record to substantiate her factual
assertions. In ruling for the defendants, the magistrate judge noted Barlass’s noncompliance
with the standing rule yet, after saying that her submissions would be disregarded,
apparently parsed those materials and concluded that her admissible evidence did not
create any material dispute of fact. As part of our de novo review, see Nagle v. Vill. of Calumet
Park,
554 F.3d 1106, 1114 (7th Cir. 2009), we likewise have evaluated the admissible
evidence Barlass submitted in the district court, which allows us to pass over Barlass’s
contention that the magistrate judge improperly refused to consider her submissions at
summary judgment, see Davis v. Con‐Way Transp. Cent. Express, Inc.,
368 F.3d 776, 782 n.3
(7th Cir. 2004); Buie v. Quad/Graphics, Inc.,
366 F.3d 496, 506 (7th Cir. 2004). The following
account is presented in the light most favorable to Barlass and, except as noted, is
uncontested. See Foskett v. Great Wolf Resorts, Inc.,
518 F.3d 518, 522 (7th Cir. 2008).
Barlass and a silent partner, Amir Sharifi, opened Corvinas in October 2008. Their
landlord initially owned the establishment’s liquor license, but Barlass and Sharifi formed
Corvinas Exchange, LLC, in early 2009 to facilitate its transfer to them. In May of that year
the Janesville Common Council approved the transfer to Corvinas Exchange as
recommended by the municipality’s Alcohol License Advisory Committee. Already,
though, Corvinas had generated concerns about underage drinking and an increase in calls
to the Janesville police, and both the Advisory Committee and the Common Council voiced
concerns. The Council warned Barlass and Sharifi that not addressing those concerns risked
having the liquor license revoked.
Yet only a month after the license transfer, an underage woman reported that she
had been stabbed near the bar after her fight with another underage woman had spilled
from Corvinas into the street. Barlass later was convicted of allowing a minor into the
establishment. The day after this incident Deputy Chief Kopp, the police department’s
liaison to the Advisory Committee, directed Barlass and Sharifi to appear before the
Committee on July 7. He also drafted a memo for the Committee describing the stabbing
and generated from a computer database a list of 47 police contacts with Corvinas between
January 1 and the middle of June, two weeks before the stabbing. Many of these interactions
No. 11‐3724 Page 3
arose from routine “walk throughs” conducted by officers, and most did not result in
preparation of a written report. The six contacts during the first half of June included four in
which officers had responded to complaints about disorderly conduct, theft, excessive noise,
and trespass. Kopp’s memo advised the Committee that it could continue monitoring
Corvinas or recommend that the Common Council suspend or revoke the bar’s liquor
license.
Barlass and Sharifi attended the July 9 session, which was open to the public.
Members of the Advisory Committee expressed continuing concern about Corvinas, but
Barlass retorted that the police department was exaggerating the situation. She accused the
police of singling out Corvinas for heightened scrutiny because the bar catered primarily to
African Americans. As proof she recounted a past incident where an officer had entered
Corvinas when five or six African Americans were present and remarked sarcastically that
it “[l]ooked like trouble in here.” Barlass would later say that two officers (none of the three
was Deputy Chief Kopp) had strolled into Corvinas and suggested that she stop playing
hip‐hop music lest she “end up like Spankys,” another Janesville bar that had been popular
with African Americans before losing its license due to violent incidents. Kopp declared the
accusation of racism “out of line” and insisted that Corvinas was getting more attention
because of overcrowding and unruly patrons. That view was echoed by Carpenter, who
told the Advisory Committee that Barlass and Corvinas were “giving downtown a bad
name and bad press” and hurting business at her own bar, “Quotes,” because downtown
was “no longer viewed as a safe place to come.” This July session ended with Kopp saying
the police department was not ready to advocate suspending or revoking Corvinas’s liquor
license, and the Committee deciding to withhold recommending those steps.
Barlass appeared again before the Advisory Committee on August 4, 2009. Deputy
Chief Kopp reported that the problems with Corvinas had not abated. During the previous
month there had been reports of drug use and sales outside the bar, arrests for battery and
disorderly conduct, an assault by a patron on the bar’s security manager, and a complaint
from the owner of an adjacent building that patrons from Corvinas were urinating and
vomiting on his building. But Kopp again stopped short of recommending that the
Advisory Committee take action and noted that there was “nothing threatening from a
police perspective.”
Later in August, however, Sharifi informed the City that he was “resigning” from
Corvinas Exchange. The City interpreted Sharifi’s action to constitute a “substantial change
in ownership” compelling Barlass to obtain a new alcohol license. See JANESVILLE MUN.
CODE § 5.06.200. (Barlass asserts that the City misinterpreted the significance of Sharifi’s
communication and the effect that his “resignation” had on their limited liability company,
but she does not dispute that the City did conclude that Sharifi’s action had invalidated the
No. 11‐3724 Page 4
liquor license.) Barlass did not reapply for the license because, within a few days of Sharifi’s
contact with the City, she had been notified by Corvinas’s landlord that he intended to seek
eviction for nonpayment of rent. After consulting with her lawyer, Barlass opted to
surrender the premises, and by the end of August her bar was shuttered.
The Gazette published in its print and online editions several articles about the
controversy surrounding Corvinas. Only two of those articles are central to this appeal. On
August 3, 2009, the newspaper posted an article entitled “Trouble Plagues Bars that Cater to
a Growing Minority Population.” Deputy Chief Kopp was interviewed for that story, which
noted that “Kopp said that police are scrutinizing Corvina’s [sic] out of concerns of officers,
two nearby bar owners, another neighbor of Corvina’s and passersby.” Later, on July 30,
2010, the Gazette posted an article entitled “Janesville Bar Closes Following Complaint,”
which described the failure of “McstAggers,” the bar that replaced Corvinas after it closed.
The article recounted the history of Corvinas, noting that it had “attracted unfavorable
attention for crowds gathering outside the bar, violent behavior and underage drinking.”
Barlass filed suit in September 2010. She was deposed several times by the
defendants. On one occasion she clarified that her retaliation claim against Deputy Chief
Kopp concerned false statements he made after the July Advisory Committee meeting,
apparently referring to statements he made to a Gazette reporter on August 3 and to the
Advisory Committee a day later. According to Barlass these statements were false, and were
intended as punishment for her accusations of racial bias. These “false” comments, Barlass
conceded, were the extent of Kopp’s personal involvement in the alleged retaliation. During
a different deposition Barlass was asked if, before filing suit, she had notified the Gazette
about her allegation that its stories included falsities. She testified that her lawyer had
drafted one letter, dated July 16, 2009, which she had delivered to the Gazette. By her
account, that letter demanded that the paper “stop printing . . . inaccurate statements
regarding violent behavior and the underage drinking, talking about pushing fights outside,
curbing the violence.” Her lawyer denies drafting a letter to the paper, and Barlass could
not produce a copy of this correspondence. If the newspaper received it, the letter did not
make its way to the editor responsible for taking corrective action.
In granting summary judgment for the defendants, the magistrate judge first
questioned whether Barlass had suffered a sufficient injury to confer Article III standing to
claim that the actions of the City and Kopp had violated the Equal Protection Clause. The
court reasoned that the departure of Sharifi was the reason that Corvinas closed, and that
Barlass lacked admissible evidence showing that the defendants had provoked his
departure. The magistrate judge added, however, that “one could infer that Barlass is
contending that defendants’ actions caused a loss of business income before Sharifi
withdrew from the LLC; this probably would be enough to establish Barlass’s standing.”
No. 11‐3724 Page 5
Thus, after concluding that Barlass is not asserting an infringement of her own right to
equal protection, the court addressed whether she has “prudential” standing to enforce the
equal‐protection rights of her patrons. The court concluded that she does not, since the
third‐party interest in serving African‐American patrons actually belonged to Corvinas
Exchange, not Barlass personally, and the limited liability company is not party to the suit.
As for the First Amendment claim against the City and Kopp, the magistrate judge
first concluded that the City cannot be liable because Barlass lacks evidence of a municipal
“custom, policy or practice” of retaliating against bar owners who make accusations of
racial prejudice. See Monell v. City of New York Dep’t of Social Servs.,
436 U.S. 658 (1978). And
the claim against Kopp fails, the court reasoned, because Barlass presented no evidence that
his statements to the Advisory Committee or to the Gazette were intended to retaliate
against Barlass for her accusations, or even that his statements were substantially false.
Concerning Barlass’s state‐law claims, the magistrate judge concluded that Barlass
cannot recover against Carpenter for criticizing Corvinas, because Wisconsin law does not
allow plaintiffs to bring defamation claims on behalf of others, and Corvinas Exchange is
not a plaintiff. Finally, in granting summary judgment for the Gazette, the court reasoned
that WIS. STAT. § 895.5(2) requires a plaintiff in a defamation suit against a media source to
provide notice of the allegedly defamatory article before filing suit. The court noted that the
Gazette editor was unaware of a letter from Barlass and observed that, to the extent that
Barlass had testified that she sent one, her description of the letter’s content could not
establish compliance with § 895.5(2), which requires notice about the specific article
containing a falsehood.
Summary judgment is appropriate when a nonmoving party fails to provide
sufficient evidence to permit a jury to return a verdict in its favor. Faas v. Sears, Roebuck &
Co.,
532 F.3d 633, 640–41 (7th Cir. 2008). The nonmoving party bears the responsibility of
designating specific facts showing that there is a genuine issue for trial. Celotex Corp. v.
Catrett,
477 U.S. 317, 323 (1986).
Barlass makes only a token effort to challenge the magistrate judge’s finding that she
lacked “prudential” standing to pursue her equal‐protection claim and has all but
abandoned the point by failing to cite to any relevant legal authority. FED. R. APP. P. 28(a)(9);
Correa v. White,
518 F.3d 516, 517 (7th Cir. 2008); Anderson v. Hardman,
241 F.3d 544, 545 (7th
Cir. 2001). In any event, the district court’s only error was in concluding that Barlass has
Article III standing. Whether a plaintiff would have prudential standing is irrelevant if she
does not have Article III standing. See RK Co. v. See,
622 F.3d 846, 851 (7th Cir. 2010). While
Barlass successfully established Article III standing at the pleading stage by broadly
alleging that the heightened police scrutiny was “very damaging” to her personally,
No. 11‐3724 Page 6
annoyed her patrons, and caused her to lose revenue, at summary judgment she was
required to provide “specific facts” in order to maintain that standing. See Lujan v. Defenders
of Wildlife,
504 U.S. 555, 561 (1992); Alliant Energy Corp. v. Bie,
277 F.3d 916, 919 (7th Cir.
2003). Barlass submitted no evidence showing a concrete injury attributable to the
purported campaign of harassment, nor did she submit evidence suggesting a causal link
traceable to the actions of the City and Kopp. Thus, the magistrate should not have reached
the question of prudential standing, and should have granted summary judgment to the
City and Kopp on Article III standing grounds.
Barlass also presses her retaliation claims against the City and Kopp, but we see no
error in the district court’s rejection of her Monell claim. Barlass’s suit against the City
required a showing that the City had an express policy or widespread “custom” of
retaliation, or else that a City official with final decision making authority retaliated against
her. See Chortek v. City of Milwaukee,
356 F.3d 740, 748 (7th Cir. 2004). But Barlass concedes in
her reply brief that “there is no claim being made to policy or custom over plaintiff’s
protected speech.” And she did not make any showing that either the Advisory Committee
or Kopp had final decisionmaking authority over the level of police scrutiny over Corvinas.
Indeed, Kopp filed an affidavit denying that he possessed policymaking authority.
Barlass also rehashes her retaliation claim against Kopp, but although her brief
discusses the increased police presence at and around Corvinas after her comments to the
Advisory Committee in July 2009, she does not allege that Kopp was a part of that presence
nor that it was done at his direction. She stated at her deposition that Kopp had retaliated
by making false statements about Corvinas; the magistrate noted that he was uncertain
which statements she had been referring to, but assumed that she was referring to Kopp’s
statements at the August Advisory Committee meeting and his comments in an August 3,
2009, Gazette article. Barlass does not dispute this understanding on appeal, and so we will
assume that those were the false statements she was referring to.
But Barlass makes no attempt in her brief to rebut the magistrate judge’s conclusion
that she failed to produce evidence that Kopp’s public comments were false; her evidence
that Kopp lied at the Advisory Committee hearing consists of an absence of police reports
corroborating his statement that others had expressed concerns to him. But as the magistrate
judge explained, such concerns would not necessarily result in official police action or
arrests. And the court correctly observed that many of the incidents Kopp described to the
Gazette are corroborated by police reports that Barlass herself submitted as exhibits.
Accordingly, we agree with the court that no reasonable jury could find from the admissible
evidence that Kopp’s statements were made in response to Barlass’s accusation of racism or
were intended to harass, ridicule, or threaten her. See Hutchins v. Clarke,
661 F.3d 947, 956–57
(7th Cir. 2011); Greene v. Doruff,
660 F.3d 975, 977 (7th Cir. 2011). Indeed, Kopp told the
No. 11‐3724 Page 7
Committee that he did not recommend revoking Corvinas’s bar license and that the
incidents he cited presented “nothing alarming from a police perspective.” He was similarly
conciliatory in his comments to the Gazette, noting that Corvinas had experienced fewer
“serious incidents” than Spanky’s.
Barlass also appeals the grant of summary judgment to Carpenter, insisting that the
district court erred by concluding that Carpenter’s statement at the July 2009 hearing
referred only to Corvinas, and not Barlass personally. Even if we conclude that this decision
is erroneous, it would make no difference; Carpenter was speaking on a matter of public
concern, and so under Wisconsin law Barlass bears the burden of proving, by clear and
convincing evidence, that Carpenter knew that her statements were false, or that she spoke
with a reckless disregard for the truth. See Polzin v. Helmbrecht,
196 N.W.2d 685, 690 (Wis.
1972); see also Schaefer v. State Bar of Wisconsin,
252 N.W.2d 343, 346 (Wis. 1977); Mach v.
Allison,
656 N.W.2d 766, 772 (Wis. Ct. App. 2002). Barlass produced no evidence showing or
tending to show that Carpenter’s statements about the harm that Corvinas was causing to
her business and the reputation of downtown Janesville were false.
Barlass next argues that the magistrate judge erred by finding that she failed to
provide pre‐suit notice to the Gazette, but her arguments on this point are conclusory and do
nothing to challenge the court’s reasoning. Barlass avers that her attorney drafted a letter
notifying the paper of its purportedly false reporting, but the lawyer says otherwise. For
purposes here this dispute must be resolved in favor of Barlass, but even by her account the
letter she sent did not comply with the notice requirement of § 895.5(2), since it did not
specify which article it was objecting to. For that reason the magistrate judge was correct in
granting summary judgment for the Gazette.
We have reviewed the remaining contentions Barlass makes in her brief and
conclude that none has merit.
AFFIRMED.
