COURT OF APPEALS DECISION DATED AND RELEASED JULY 30, 1996 |
NOTICE |
A party may file with the Supreme
Court a petition to review an adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2986
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
LIBBIE PESEK,
Plaintiff-Appellant,
v.
LINCOLN COUNTY,
LINCOLN COUNTY
GENERAL RELIEF AGENCY,
LINCOLN COUNTY
DEPARTMENT OF SOCIAL
SERVICES and WISCONSIN
COUNTY MUTUAL
INSURANCE CORPORATION,
Defendants-Respondents.
APPEAL from a judgment
and an order of the circuit court for Lincoln County: ROBERT A. KENNEDY, Judge.
Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Libbie Pesek appeals a summary judgment dismissing her
action against the Lincoln County Department of Social Services and its General
Relief Agency and requiring Pesek to pay $50 costs for filing a frivolous
motion to disqualify her opponents' attorney.
She also appeals an order denying a free transcript for this
appeal. We affirm the judgment and
order.
Pesek makes three claims
in her complaint. First, she alleges
that she asked a General Relief worker and other county employees whether there
was a program that provided funds for physical therapy as prescribed by her
doctor. The county workers told her
there was no such program or that they were unaware of such a program. Two months later, a General Relief supervisor
wrote Pesek offering to pay for some physical therapy. Pesek alleges that the delay in granting
physical therapy treatment caused her additional damage, stress and trauma.
Pesek's second claim,
under 42 U.S.C. 1983, alleges that General Relief officials failed to comply
with their duties set out in § 49.03(7), Stats.,
by denying her an application for benefits, failing to notify her in writing
that her application was denied and failing to notify her of her appeal
rights. Pesek seeks back payments of
the minimum monthly maintenance allowance from the date she first inquired
about benefits until she became ineligible for benefits, approximately eleven
months later.
Pesek's third claim
alleges that she endured pain, physical and mental stress and trauma when
General Relief officials refused to pay for orthopedic shoes prescribed by her
doctor. Following an administrative
review, the circuit court eventually ordered the agency to pay for the shoes. Pesek seeks compensation for the pain and
suffering she endured during the time the administrative review was pending.
Whether a complaint
states a claim is a question of law that we review without deference to the
trial court. First Nat'l Bank v.
Dickinson, 103 Wis.2d 428, 433, 308 N.W.2d 910, 912 (Ct. App.
1981). In reviewing a judgment
dismissing a complaint for failure to state a claim, we must accept the facts
pled in the complaint as true. Evans
v. Cameron, 121 Wis.2d 421, 426, 360 N.W.2d 25, 28 (1985). A complaint is legally insufficient only if
it is "quite clear that under no conditions can the plaintiff
recover." Morgan v.
Pennsylvania Gen. Ins. Co., 87 Wis.2d 723, 731, 275 N.W.2d 660, 664
(1979). A complaint under the Civil
Rights Act, however, requires more than a conclusory allegation. Cohen v. Illinois Inst. of Technology,
581 F.2d 658, 663 (7th Cir. 1978).
Rather, some particularized facts demonstrating a constitutional
deprivation are needed to sustain a cause of action under the Civil Rights
Act. Id.
Pesek's complaint fails
to state a claim for which relief could be granted. The complaint does not state any facts from which a finding could
be made that the Department of Social Services or the General Relief Agency
failed to perform any nondiscretionary duty.
See Envirologix Corp. v. City of Waukesha, 192
Wis.2d 277, 288, 531 N.W.2d 357, 363 (Ct. App. 1995). There is no cause of action for failure to notify a person of
benefits he or she could apply for. The
County's temporary failure to recognize Pesek's eligibility for a particular
program is not actionable. As the trial
court noted, Pesek, in effect, wants the County welfare officials to act as her
attorney actively pursuing benefits Pesek may be eligible to apply for.
Pesek argues that the
trial court improperly granted summary judgment because the County did not
present an affidavit relating to the first and third claims in her
complaint. The first step in deciding a
motion for summary judgment requires the court to review the complaint to
determine whether it states a claim for which relief can be granted. Green Spring Farms v. Kersten,
136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). Submission and examination of affidavits is only required if the
court concludes that the complaint states a claim for which relief can be
granted.
The trial court also
properly dismissed Pesek's second claim.
To the extent this claim relies on the allegation that County officials
violated Pesek's statutory rights, that claim is not cognizable under 42 U.S.C.
1983. To prevail on a civil rights
complaint, Pesek must allege a deprivation of "rights, privileges or
immunities secured by the constitution or laws of the United States." See Parratt v. Taylor,
451 U.S. 527, 535 (1981). The only
possible constitutional claim Pesek raises is a violation of her procedural due
process rights, notice of an opportunity to be heard. See Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950). Procedural
due process requires that the State afford an individual an opportunity to be
heard at a meaningful time and in a meaningful manner. Matthews v. Eldridge, 424 U.S.
319, 333 (1976). The procedures listed
in § 49.037, Stats., and
followed by Lincoln County in this case satisfy Pesek's due process
rights. On appeal, Pesek describes the
due process violation as a refusal to provide her with an application form, a
written decision and notification of her right to appeal. Pesek's argument on appeal that she was
denied an application form unfairly characterizes the facts as they are alleged
in her complaint. The complaint does
not state that County employees refused to give Pesek an application form upon
specific request. The right to a
written decision and to appeal a decision apply only after a written
application is filed. See
§ 49.037(3), Stats.
Pesek's third claim,
that she was damaged by delay in receiving her corrective shoes, does not state
a claim for which relief could be granted.
County officials followed the administrative procedure and, upon order
of the circuit court, paid for the shoes.
There is no cause of action for damages incurred during the pendency of
the administrative process.
The trial court properly
refused to grant Pesek's motion for free transcripts. Transcripts are not necessary to prosecute an appeal involving
summary judgment based on a deficient complaint. No questions of fact are submitted with this appeal. The trial court is not required to produce a
transcript of oral argument at taxpayers' expense to decide questions of law.
Finally, the court properly
penalized Pesek for filing a frivolous motion to disqualify her opponents'
attorney. Pesek challenged the
authority of the attorney for the County's liability insurer to appear in this
action. We conclude that even a pro se
litigant must recognize that a party has very little control over an opposing
party's choice of attorney and that attempts to disqualify an attorney may be
reasonably viewed as harassment.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.