Sylvester Thomas v. Mike Priebe

NONPRECEDENTIAL DISPOSITION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 September 23, 2010*
Decided October 29, 2010
Before
ILANA DIAMOND ROVNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10-2765
Appeal from the United States District
SYLVESTER THOMAS, Court for the Eastern District of
Plaintiff-Appellant, Wisconsin.
v. No. 10-C-557
MIKE PRIEBE, et al., William C. Griesbach,
Defendants-Appellees. Judge.
ORDER
Sylvester Thomas is civilly committed by the State of Wisconsin as a sexually violent
person. See W IS. STAT. § 980. In this action under 42 U.S.C. § 1983—one of five lawsuits
filed by Thomas in the past year and by far the most frivolous—he contends that an
employee at the Wisconsin Resource Center refused to serve him ice cream during an ice-
*
The appellees were never served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Accordingly, the appeal is submitted on the
appellant’s brief and the record. See FED. R. A PP. P. 34(a)(2)(C).
No. 10-2765 Page 2
cream social. His complaint and its attachments disclose that Thomas was turned away
after he failed to persuade the employee that his status as a “Level B” patient did not
disqualify him from participating in the event, and although nothing at all was said about
race, Thomas insists that the denial was motivated by racial animus. Thomas attributed the
same animus to administrators—also named as defendants—who resolved his grievance by
concluding that the employee had simply made a mistake about the eligibility criteria. The
district court screened the complaint and dismissed it for failure to state a claim. See FED.
R. C IV. P. 12(b)(6). We affirm the judgment.
In dismissing the complaint, the district court concluded that Thomas had not
satisfied the minimal pleading burden of Rule 8(a)(2) of the Federal Rules of Civil
Procedure. Citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009), the court reasoned that
the complaint is speculative and does not permit even a plausible inference that race
motivated the employee’s action. Thomas does not contest this conclusion on appeal, and
that is reason enough to affirm the judgment. See United States v. Blagojevich, 612 F.3d 558,
560 (7th Cir. 2010); Landstrom v. Ill. Dep’t of Children & Family Servs., 892 F.2d 670, 678 (7th
Cir. 1990).
We have said in another context that “the concept of equal protection is trivialized
when it is used to subject every decision made by a state or local government to
constitutional review by federal courts.” Ind. State Teachers Ass’n v. Bd. of Sch. Comm’rs of the
City of Indianapolis, 101 F.3d 1179, 1181 (7th Cir. 1996); see also Sherwin Manor Nursing Ctr. v.
McCauliffe, 37 F.3d 1216, 1221 (7th Cir. 1994). That proposition encapsulates this case. This
appeal is frivolous, and we warned Thomas when he was last before us that he risked
sanctions under Federal Rule of Appellate Procedure 38 if he persisted in pursuing
frivolous litigation. Thomas v. Van Hollen, No. 10-2100, 2010 WL 2993982 (7th Cir. July 23,
2010). We renew that warning here and trust he will heed it in the future.
AFFIRMED.