United States District Court, E.D. Wisconsin
XUEJUN MAKHSOUS, individually and for New Life of Crivitz LP, Plaintiff,
LINDA SEEMEYER, in her official capacity as Secretary of the Wisconsin Department of Health Services, Defendant.
DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO
William C. Griesbach, Chief Judge
Xuejun Makhsous, who is currently representing herself, filed
this action against Defendant Linda Seemeyer, in her official
capacity as the Secretary of the Wisconsin Department of
Health Services (DHS), alleging violations of the Fourteenth
Amendment. Defendant filed a motion to dismiss this action on
June 29, 2018. For the following reasons, the motion to
dismiss will be granted and the case dismissed.
is a Chinese national who operates two assisted living
facilities in Marinette County, Wisconsin. She asserts that
DHS carried out unnecessary inspections of her facility and
cited her for “petty violations.” As a result of
receiving the citations, she was not allowed to admit new
patients in the facilities, driving her to financial ruin.
Plaintiff asserts that she did not receive due process when
DHS deprived her of her property and that she was subject to
oppressive scrutiny that destroyed her business due to her
particular, Plaintiff claims DHS has deprived her and New
Life of Crivitz LP of their property interest by subjecting
them to a constant and arbitrary stream of investigations
without due process rights. ECF No. 26, ¶ 22. As to her
equal protection claim, Plaintiff alleges DHS and its agents
have run her out of Wisconsin by subjecting her to a level of
scrutiny that far exceeds anything that it imposed on
Caucasian-owned facilities. Id., ¶ 39.
Plaintiff requests that the court issue a declaration that
DHS has unconstitutionally deprived her of property without
affording her due process and that DHS has unconstitutionally
discriminated against her on the basis of her race; award
damages for the economic loss she suffered; enter judgment
for reasonable attorney's fees and costs incurred in
bringing this action; and grant Plaintiff such any other
relief the Court deems appropriate, including an order
forcing DHS to give her an impartial and fair hearing on
reinstating her license to run the facilities. Id.
at 14, 16.
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure challenges the sufficiency of the complaint
to state a claim upon which relief may be granted. In
evaluating a motion to dismiss, the court must view the
plaintiff's factual allegations and any inferences
reasonably drawn from them in a light most favorable to the
plaintiff. Yasak v. Retirement Bd. of the Policemen's
Annuity & Benefit Fund of Chi., 357 F.3d 677, 678
(7th Cir. 2004). The court is also obliged to construe a
plaintiff's pro se allegations liberally,
“however inartfully pleaded.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
maintains that she is suing Defendant Seemeyer in her
official capacity. It is well-settled that “[a]ctions
against individual defendants in their official capacities
are treated as suits brought against the government entity
itself.” Walker v. Sheahan, 526 F.3d 973, 977
(7th Cir. 2008) (citation omitted). Section 1983 does not
permit a plaintiff to bring a suit for monetary damages
against a state or its officials acting in their official
capacities. Will v. Mich. Dep't of State Police,
491 U.S. 58, 71 (1989). The Eleventh Amendment also bars
“actions in federal court against a state, state
agencies, or state officials acting in their official
capacities.” Peirick v. Ind. Univ.-Purdue Univ.
Indianapolis Athletics Dep't, 510 F.3d 681, 695 (7th
Cir. 2007). The Eleventh Amendment does not, however, bar
suits against state officials sued in their official
capacities for injunctive relief, and these suits are also
authorized by § 1983. See Power v. Summers, 226
F.3d 815, 819 (7th Cir. 2000); see also Ex parte
Young, 209 U.S. 123, 159-60 (1908). “A court
applying the Ex parte Young doctrine now ‘need
only conduct a straightforward inquiry into whether [the]
complaint alleges an ongoing violation of federal law and
seeks relief properly characterized as
prospective.'” Indiana Prot. & Advocacy
Servs. v. Indiana Family & Soc. Servs. Admin, 603
F.3d 365, 371 (7th Cir. 2010) (quoting Verizon Maryland
Inc. v. Pub. Servs. Comm'n of Maryland, 535 U.S.
635, 645 (2002)).
case, Plaintiff does not make any request for injunctive
relief. Her allegations are phrased in the past tense, and
the complaint does not contain any allegations of ongoing
federal law violations. In other words, Plaintiff's
complaint fails to allege any ongoing violations of her
constitutional rights. Because Plaintiff does not seek
prospective relief for ongoing violations but merely monetary
damages and declaratory relief for deprivations she has
already allegedly suffered, she cannot maintain a lawsuit
against Defendant Seemeyer in her official capacity.
Accordingly, Plaintiff's claims against Defendant
Seemeyer must be dismissed.
foregoing reasons, Defendant's motion to dismiss (ECF No.
30) is GRANTED. The Clerk is directed to
enter judgment accordingly.