# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 15, 2013 *

Decided March 19, 2013

Before

FRANK H. EASTERBROOK, Chief Judge

DANIEL A. MANION, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

No. 12

‐ 1493

RODERICK FLOWERS,

Plaintiff

‐ Appellant

,

v.

NOBLE WRAY, et al.,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Western District of

Wisconsin.

No. 10

‐ CV

‐ 00785

William M. Conley,

Chief Judge

.

O R D E R

Roderick Flowers appeals the district court’s grant of summary judgment to the City

of Madison, Wisconsin, and three of its officials on claims that they wrongfully revoked his

bar’s liquor license. He contends that they applied an unconstitutionally vague standard for

revocation, discriminated against him based on race, and denied him due process. We NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* 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 F ED

. R. A PP

. P.

34(a)(2)(C).No. 12

‐ 1493 Page 2

conclude that the revocation standard is adequate, no admissible evidence supports a race

claim, and Flowers received due process. Accordingly summary judgment was proper.

Flowers, who is black, was the sole member of a limited liability company that

owned R Place on Park, a bar in Madison. R Place opened in 2008 and served a mostly black

clientele. Because its capacity was small (47 patrons), people often gathered out front and in

the parking lot, and on occasion violent conflicts erupted. Flowers met with city officials in

2009 to address these disturbances. He requested a greater police presence at the R Place,

but the officials replied that he bore the primary responsibility for managing the crowds

there. The violence escalated in October 2010: A patron was stabbed in the wrist during a

fight at the bar, and the next night shots were fired outside of it. In response to these back

‐

to

‐ back armed clashes, the city attorney who prosecutes cases before Madison’s Alcohol

License Review Committee, Jennifer Zilavy, immediately contacted Flowers. She asked him

to close R Place at 11:00 pm rather than 2:00 am for the next two weeks, but Flowers refused,

explaining that he did most of his business after 11:00. He again requested more police

assistance in maintaining order.

Flowers’s refusal to close early did not sit well with the City. Zilavy responded by

imposing on R Place a “Chief of Police Security Plan” under § 38.07(13) of the Madison

General Ordinances. Among other things, the plan required Flowers to hire two armed

security guards and to procure uniforms for his employees. Zilavy described the plan in a

letter to Flowers, which begins by criticizing him for refusing to close early and instead

requesting additional assistance from police. “The City, more specifically the police

department, can’t run your business for you,” she admonished him. The security plan also

incorporated its conditions into an amended liquor license and explained that the new

license was “effective immediately.” Because Flowers had no warning of these changes, he

needed to close R Place for a few days to arrange for compliance. Flowers appealed the

imposition of the plan, but eventually he reached an agreement with the City and dropped

the appeal.

In Zilavy’s letter, she also informed Flowers that she would ask the City’s liquor

‐

license committee to revoke R Place’s liquor license. Three days later, Police Captain Joseph

Balles (one of the defendants here) filed a license

‐ revocation complaint with the committee

at Zilavy’s behest, charging that R Place was a “disorderly house.” See MGO § 38.10(1)(a).

The committee held five days of hearings over the course of a year. Flowers’s attorney

presented evidence to oppose revocation, including several citizens who testified to the

importance of R Place in their community. But the committee also learned that between

May 2009 and March 2011, police officers had responded to at least 17 reports of violence at

R Place—three involving gunshots and two involving knives—and that neighbors had

lodged over 200 noise and parking complaints. After considering this evidence, theNo. 12

‐ 1493 Page 3

committee voted seven

‐ to

‐ one to revoke, and its recommendation was accepted by

Madison’s Common Council.

In the midst of the revocation proceedings, Flowers sued the City and three of its

officials under 42 U.S.C. § 1983. Flowers designated the limited liability company that

owned R Place as plaintiff, but when the court allowed counsel for the LLC to withdraw

from the case, the court substituted Flowers as the plaintiff, pro se, and extended the

discovery schedule to reflect the change. After discovery closed, the defendants moved for

summary judgment, and Flowers timely responded. About five weeks later, Flowers moved

to amend the pretrial scheduling order to extend the time for discovery. He did not explain

what evidence he hoped to collect or why he had waited to file the motion. The court

granted summary judgment to the defendants the next day without explicitly discussing

Flowers’s motion.

On appeal Flowers develops four arguments that merit analysis. The first is that the

district court should have granted his motion to allow more time for discovery. Motions to

extend discovery deadlines in pretrial orders fall under Rule 16(b)(4), the disposition of

which we review for abuse of discretion. Alioto v. Town of Lisbon

, 651 F.3d 715, 720

(7th Cir. 2011). Flowers tells us that with additional time for discovery, he could have

obtained evidence that the City of Madison targets bars frequented by black patrons and,

consequently, few of these bars remain. He also stresses that during the months that the

court took to decide the lawyer’s motion to withdraw, the defendants prepared

interrogatories and collected evidence, while he was uncertain whether R Place would be

represented and, if not, whether he would be permitted to represent himself.

Although the district court did not explicitly discuss Flowers’s motion to extend

discovery, we can treat its grant of summary judgment to the defendants as a denial, see

Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994), and we conclude that this denial

was proper. Flowers, who neither told the district court what discovery he sought nor

explained why the previous extension was inadequate, did not demonstrate “good cause”

to extend discovery, as required by Rule 16(b)(4). Although he tells us why he wanted more

time for discovery, our task is to review whether, based on the reasons he gave the district

court, that court abused its discretion. Since Flowers had already received an extension,

waited more than a month after the deadline to ask for more time, and gave the court no

specific reasons for his request, the court did not abuse its discretion. See Brosted v. Unum

Life Ins. Co. of America

, 421 F.3d 459, 464 (7th Cir. 2005)

.

Next, Flowers maintains that the term“disorderly house” in Madison’s ordinance, see

MGO § 38.10(1)(a), is unconstitutionally vague and invites arbitrary enforcement. In

support he points to a report from the Ad Hoc Committee on Alcohol Licensing and TrafficNo. 12

‐ 1493 Page 4

Stops of African Americans, a document that Madison’s Equal Opportunities Commission

prepared in 1997. The report criticized the ordinance’s “disorderly house” provision

because the City might enforce it in a racially discriminatory way.

A municipal law is unconstitutionally vague if it fails to make clear what is

prohibited and lacks standards that guard against arbitrary enforcement. Hegwood v. City of

Eau Claire

, 676 F.3d 600, 603 (7th Cir. 2012). Although Madison’s ordinance itself does not

define “disorderly house,” the City has published guidance on the term, explaining that

“fights,

. . . noise, batteries,

. . . weapons violations,

. . . or other disturbances” are

indications of a disorderly house. See Enforcement of Alcohol Violations Against Licensed

Establishments § 1(f), available at http://www.cityofmadison.com

/clerk/documents/Alcoh olViolationEnforcement

‐ LongVerison.pdf (last accessed

Mar. 4, 2013). Furthermore, in Hedgwood we upheld, against a similar challenge for

vagueness, Wisconsin’s nearly identical “disorderly house” standard for revoking liquor

licenses. Id. at 604. Because R Place was the scene of violent clashes comparable to those that

occurred at the bar in Hedgwood

, Madison did not apply an unconstitutionally vague

standard of “disorderly house” to R Place.

The third contention Flowers raises on appeal is an equal

‐ protection challenge to the

revocation of R Place’s liquor license. He argues that the evidence he submitted, including

the 1997 report, shows that the defendants targeted R Place because of its association with

black patrons rather than because of its disorderliness. Bars in Madison facing the same

disturbances as R Place—but catering to a mostly white crowd—have not had their liquor

licenses revoked, he asserts.

For his equal

‐ protection claim to survive summary judgment, Flowers needed either

to present a direct case that race motivated the revocation of the liquor license or to employ

the indirect method endorsed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See

Parvati Corp. v. City of Oak Forest

, No. 12

‐ 1954, slip op. at 5–6 (7th Cir. Mar. 1, 2013). Under

the latter approach, to establish a prima facie case of race discrimination, Flowers needed to

present evidence (1) that he or his bar’s patrons, see id. at 5, belong to a protected class and

(2) that a similarly situated bar frequented or owned by white people has been treated more

favorably than R Place. See Radentz v. Marion Cnty.

, 640 F.3d 754, 757 (7th Cir. 2011); Brown

v. Budz

, 398 F.3d 904, 916 (7th Cir. 2005). Flowers, however, neither presented admissible

evidence to support a direct case of race discrimination nor established a prima facie case

using the McDonnell Douglas method. He submitted newspaper articles that accuse the City

of discriminating against black

‐ owned and black

‐ patronized bars, but newspaper articles

offered for the truth of what they report are inadmissible hearsay. Eisenstadt v. Centel Corp.

,

113 F.3d 738, 742 (7th Cir. 1997). He also furnished police reports of violent incidents at

various Madison bars, including one he focuses on called Wiggie’s, but he has never offeredNo. 12

‐ 1493 Page 5

evidence that any one of these bars is white

‐ owned or patronized, experienced similar levels

of violence and complaints, and yet was treated more favorably than R Place. Because no

reasonable fact

‐ finder could have found on the district court’s record that the plaintiff met

his burden on this issue, summary judgment was appropriate. Srail v. Village of Lisle, Ill.

, 588

F.3d 940, 945 (7th Cir. 2009).

Flowers’ last appellate argument is that the defendants denied him due process by

issuing—without first granting him notice or a hearing—the security plan that amended

R Place’s liquor license, effective immediately. Because Flowers was not notified of the new

requirements before they went into effect, he was unprepared for them, he explains, and

had to close the bar for a few days, resulting in revenue loss. He also points out that the

Wisconsin Supreme Court recently held (on state

‐ law grounds) that, when renewing a

liquor license, a municipality may not change the description of the bar’s premises without

the licensee’s consent. See Wisconsin Dolls, LLC v. Town of Dell Prairie

, 815 N.W.2d 690, 698

(Wis. 2012). He derives from this case a property interest in his liquor license.

Even if under Wisconsin law Flowers had a property interest in the liquor license, he

is incorrect that when Madison amended it he was deprived of property without due

process. A post

‐ deprivation remedy can satisfy due process when the deprivation results

from “quick action” that the state had to take to solve an urgent problem. Parratt v. Taylor,

451 U.S. 527, 539 (1981); see Belcher v. Norton

, 497 F.3d 742, 750 (7th Cir. 2007). Here, after

Flowers refused to curtail late

‐ hour operations, Madison imposed the security plan to

respond to the ongoing, armed violence at R Place. Flowers could immediately appeal the

imposition of the plan and argue that it was unjustified. He did so, but he eventually

dropped the appeal when he and the City agreed to the plan’s terms. The availability of this

post

‐ deprivation remedy satisfies due process.

AFFIRMED.