Ryan Krueger v. Josh Kaul

NONPRECEDENTIAL DISPOSITION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 March 19, 2020*
Decided March 19, 2020
Before
DANIEL A. MANION, Circuit Judge
DIANE S. SYKES, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19-3103
RYAN D. KRUEGER, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 19-C-1470
JOSH KAUL, et al., William C. Griesbach,
Defendants-Appellees. Judge.
* The district court dismissed the complaints in these cases at screening,
see 28 U.S.C. § 1915(e)(2)(B), before any defendant appeared. The appellees are not
participating in the appeals. We have agreed to decide the cases without oral argument
because the briefs and records adequately present the facts and legal arguments, and
oral argument would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
Nos. 19-3103 and 19-3379 Page 2
No. 19-3379
RYAN D. KRUEGER, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 19-C-1670
CARRIE STAGE and AARON William C. Griesbach,
KRZEWINSKI, Judge.
Defendants-Appellees.
ORDER
In these appeals, which we have consolidated for decision, Ryan Krueger
challenges the district court’s dismissals of his complaints alleging violations of his right
under the Americans with Disabilities Act to have a veteran’s “advocate” accompany
and communicate for him in a state-court proceeding. The district court dismissed the
complaints at screening, see 28 U.S.C. § 1915(e)(2)(B), for failing to state a claim upon
which relief could be granted. We affirm the judgments.
Recently, we decided an appeal in the first of Krueger’s three federal cases
challenging the same ongoing paternity suit in state court. Krueger alleged in his first
suit that the family-court commissioner violated his right under the Act to have an
advocate during the proceeding to facilitate his participation (Krueger has PTSD). The
district court dismissed the complaint, and the case became moot on appeal because the
commissioner told Krueger that he was entitled to have a lay advocate present. See
Krueger v. Wisconsin, 790 F. App’x 828 (7th Cir. 2020).
But events in the state-court proceeding led Krueger to file suit in federal court
twice more. First, Krueger sued the commissioner for limiting what the advocate could
do for him in court. Krueger alleged, without much detail, that she interfered with his
ability to have an effective advocate, violating the Act. In the same complaint, he sued a
county veterans-service officer and a sheriff’s deputy, alleging that, with the
commissioner’s permission, they attended a hearing only to intimidate him. He
appeared to seek declaratory or injunctive relief, stating that these violations “must
stop.” In the second new case, Krueger sued the mother of his children (the petitioner in
Nos. 19-3103 and 19-3379 Page 3
the paternity suit) and her lawyer, alleging that they violated his rights under the Act
(citing 42 U.S.C. § 1983 as well) by seeking to reduce the role of his advocate, apparently
by arguing that the lay advocate was practicing law without a license.
The district court dismissed both complaints at screening for failure to state a
claim. The commissioner was immune from a suit for damages, the court reasoned, and
injunctive relief was untenable because Krueger did not allege that he would be subject
to similar conduct in the future. Further, the court “lacked jurisdiction” to review the
decision to allow the officer and deputy to observe the hearing, and Krueger’s
allegations of intimidation were too conclusory. As to the second complaint, the court
dismissed the claims against the petitioner and her attorney because Title II of the Act
does not create liability for discrimination by private individuals, and it dismissed the
claims under 42 U.S.C. § 1983 because the defendants were not state actors. The court
warned Krueger that should he file any more frivolous suits, he could be sanctioned.1
On appeal, Krueger argues that the district court erred by dismissing his first
complaint without determining “what an ADA Advocate can and cannot do” in his
state-court proceeding. Unlike the district court, we view Krueger as fairly alleging that
the commissioner will continue to deny him the ability to have an effective advocate; he
asserted, in describing his requested relief, that this behavior “must stop.” And nothing
suggests that the proceeding has ended.
But the relief Krueger seeks—an order directing the state court how to conduct
its ongoing proceeding—runs contrary to the principles of equity, comity, and
federalism underlying our abstention doctrines, so the district court could not have
properly exercised jurisdiction over this claim. See Courthouse News Serv. v. Brown,
908 F.3d 1063, 1065–66 (7th Cir. 2018); see also SKS & Assocs., Inc. v. Dart, 619 F.3d 674,
677–82 (7th Cir. 2010). This matter does not fit neatly into the scenarios under which it is
appropriate to abstain under Younger v. Harris, 401 U.S. 37 (1971): the paternity case is
not a criminal proceeding; it is not a civil enforcement proceeding akin to a criminal
prosecution (the state is not a party, and Krueger is not a target); and it does not touch
on a state’s interest in enforcing the orders and judgments of its courts. See Sprint
Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77–79 (2013) (describing Younger’s scope); see also
1 Krueger then unsuccessfully tried to remove the underlying paternity action to
federal court. Finding his conduct to be part of a “pattern of abusive and duplicative
litigation,” the district court fined Krueger $400 and imposed a filing restriction. Stage
v. Krueger, No. 20-C-65, 2020 WL 241553, at *2 (E.D. Wis. Jan. 16, 2020).
Nos. 19-3103 and 19-3379 Page 4
Mulholland v. Marion Cty. Election Bd., 746 F.3d 811, 815–16 (7th Cir. 2014) (noting that
Younger applies in “exactly three classes of cases”). But as in Courthouse News, Krueger
seeks a level of intrusion by a federal court into the state court’s operations that is
“simply too high,” at least before the state courts have had a chance to consider the
issue. 908 F.3d at 1074. In effect, Krueger asked for a writ of mandamus to a state-court
commissioner directing the scope of the advocate’s participation in the pending case,
and that is not within the province of the federal courts.
Krueger’s remaining arguments lack merit. He asserts that he has evidence to
support his allegations of “intimidation” by the service officer and sheriff’s deputy. But,
assuming that Krueger was intimidated, nothing in his complaint plausibly suggests
that because of these defendants (who appear to be public employees) he was
“excluded from participation in” or “denied the benefits of” public services, programs,
or activities. 42 U.S.C. § 12132; see Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). The
district court was also correct to dismiss Krueger’s claims against the petitioner and her
attorney under Title II of the Act because that section covers discrimination only by
public entities. See Ashby v. Warrick Cty. Sch. Corp., 908 F.3d 225, 230, 234 (7th Cir. 2018)
(describing elements of claim and affirming grant of summary judgment in favor of
public school where event was organized and maintained by a private museum).
Krueger also contends that he stated a claim under 42 U.S.C. § 1983 against the attorney
because he is an “officer of the court,” but—even assuming Krueger alleged a violation
of a constitutional right—this is insufficient, standing alone, to suggest any action taken
“under color of state law.” See Polk Cty. v. Dodson, 454 U.S. 312, 318–19 (1981).
AFFIRMED