good morning ladies and gentlemen our first case for this morning is arnold philips against the illinois department of financial national regulation and mr philip for attorney good morning you're o dash c v dash one one one five seven was which was filed in the district court in december seventh two thousand and sixteen was dismissed on july fourteenth twenty seventeen with prejudice on the basis of state immunity my focus here is on the immunity issue from three perspectives number one number two and number three number one individual capacity and i cite the supreme court case relatively recent april twenty fifth twenty seventeen lewis the clark which says that a forty t official capacity which of course oh well i'll come to that but i have to say that in my response to defendant's motion to to phyllis d dismiss i even brought it with me if you would like to see what it's there that's fine but ok the second case under individual capacity is the murphy v smith and full case that was decided to weeks december twenty first after i filed my complaint in district court and in that case there is a clear very clear analysis of what illinois sovereign immunity means for individual employee just ask palls and and i just would like to bring forward three one two three items and murphy in the murphy court section to see number one a claims against the state a claim against a state official or employees against is a claim against the state when number one there are no allegations that an agent or employee of the state acted beyond the scope of his or her duty alleged to have been breached was not all to the put to the public generally independent of state employment while the duties owed to the public  and very strong going and wrongfully and they were generally independent of the fact of state employment and the public public is holding truthful  accurate information regarding licensed health care professionals and that's in two to five years i'll see us sixty now at what point didn't you say though that you were not looking for monetary damages from previous case against the state very similar to this one the zero eight dash c v dash zero seven three zero nine and when a notice of appeal was a font that was funneled the mediation service of the seventh circuit came in to the situation and the case was settled and a check was issued to me from the state of illinois and it it  damages from the state but you could from the individuals and their individual capacity but in fact in many instances both state and municipalities and counties indemnified the individuals if they do make a payment and trustees of the university of illinois as well as rodriguez v plymouth ambulance service all three of those are seventh circuit cases and  i did not use the word capacity attached to each individual but i defined state employees as individuals with specificity  is individuals each with their name each with their locus of employment each with a timeframe related remove all of my name and my wife since from the national practitioners data bank and the medical index of the illinois secretary of state have not been affected so the state and made the assertion made by the defendants that my license has been put to active status is fallacious that has not ok that's it thank you very much thank you don you're on i have just a little bit response to our motion to dismiss dr philips make clear that he was suing the state for money damages well he says a couple of things isn't it thank you as you know i would agree with you he doesn't as a lawyer might have done say i am suing these individuals in their individual capacity and we wouldn't be here if he had but he does seem to have said some things that make it look the judge have because he was pro se given him a chance to clarify i don't think that this complaint is about mislabeling official versus individual capacity that the substance of complaint was that the department inactivated his license but there is a monetary dimension to that and he has just now said and we have to take the facts as he alleges them that the problem has not been solved and so there would be a potential injunction to get his name removed from these various lists a couple points about well first his the theory of his recovery was the department did something wrong the individuals were supervisors who didn't correct it or something and then and his response he makes it clear he's not going after the individuals you know the pockets of the individuals or whatever as for an ongoing violation he he alleged that his license was placed back on active status and that is the prospect of belief he was seeking was the reactivation of his license so well he says says something said certainly make it look like an official capacity suit and there we have the question whether it should have gone forward you know to see of the kind of corrective measures that he's seeking that we don't know when the facts are not developed yet so we have to assume that they are not that this is not correct at a minimum you would have to go to summary judgment to do a little bit of discovery but he also says that the defendants and i believe this is a quote personally and or in a supervisory capacity in activated his license and then he says he's not seeking damages from them quote when they were functioning in their official capacities as public servants so you know what does that mean sure it's confusing but i think the complaint is clear and it is it's respons amend and i said i don't think the district court was required to respond to to to ask him after our motion to dismiss told him was barred by the limit amendment he he was  our motion dismissed explained the deficiencies in the complaint he chose to go forward i he did also move to supplement his pleadings at one point but he didn't add any allegations so that you know you say the district judge wasn't required to ask but i can think of a number of instances in which particularly in the post twamley it ball world we've said you know you shouldn't just throw something out the door on the first try typically those are construed liberally to encompass the rule fifteen no i understand that and maybe that would have worked but there's no rule that once the district court has he he was steadfast in his i read the motion to dismiss and i think the district court did also that he was not suing these individuals in their individual capacity and we have to take him as word and i don't think that liberal construction can save him from the theory that he's pursuing he just realized too late that this is in the theory that he can pursue in federal court it wasn't really too late because he still could have filed an amended complaint and his complaint is not a model of clarity but it does have some portions of it that do seem to suggest he is doing these people in their individual capacity there are there portions read in isolation that you know if maybe but reading it as a whole he's complained that the department did this the department inactivated his license and these people these supervisors these current and past supervisors  collectively just failed to correct this problem i don't think we can parse out from that and a claim against any one of the individuals so i'm not going to disagree with you if you're ruling on a complaint thinking you know what in the long run you're not going to win so we're just going to throw it out anyway right now we don't do that you know we wait and see if there's the requisite individual involvement we wait to see what discovery turns out i don't think the district court erred based on what he said what she was given to decide that this complaint was based on the other amendment an appeal he hasn't offered and it's not really the eleventh memon anyway you know  against michigan state police not a person not a person which could make a difference but on appeal he hasn't offered any any corrections and i have nothing to respond to what he could what he could bring up that's not your job of course right and if if the district court is involved in is required now too ask every time are you sure that you understand this and are you sure you don't want to bring any more into you know all that just record has to say is i find this complaint inadequate that i'm for the following reason but i'm going to give you one chance to amend and they do that all the time in pro se cases to supplement i think he gave up everything that he had in the district court to show merit to his complaint and it just unfortunately the theory was barred i think he just didn't understand that he couldn't su the official capacity and so he didn't understand what he needed to do to a man's to clarify that he was only pursuing that individual capacity claims i agree that's that's likely but labels labels wouldn't sink his claim it would be the substance of the allegations in the district court could could reading the whole complaint aside did an individual cause the tort individual deactivate that license wrongly  and that just wasn't in the she couldn't decide that on the merits right because it wasn't summary judgment she had to just decide taking his allegations as true is it possible that an individual is responsible for the tort and individual or a little more research on the front and he would have been given discovery to to figure out who the john doe was and that happens all the time too so i don't think was out of options i i think the district court did the best she could with  court view this soon see on t v johnson case the court would not worship over substance and that was in nineteen ninety eight the other matter is and this is something that i don't know when i'm really asking the court this much ability right to a man and that's my question is that is that correct in the end that's why i didn't file you have a feeling actually you know it's i'll just say it's more complicated than that people do file motions to reconsider in which they suggest they would like to amend that yes yes well i i i would be pleased to have the one opportunity to to him and thank you all right thank you very much thanks to