Roderick Flowers v. Noble Wray

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NONPRECEDENTIAL DISPOSITION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 FED. R. A PP. P.
34(a)(2)(C).

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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, the

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No. 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 Traffic

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No. 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/AlcoholViolationEnforcement‐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 offered

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No. 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.

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