# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued February 27, 2018

Decided April 12, 2018

Before

DIANE P. WOOD, Chief Judge

WILLIAM J. BAUER, Circuit Judge

AMY C. BARRETT, Circuit Judge

No. 17

‐ 2607

ARNOLD G. PHILLIPS,

Plaintiff

‐ Appellant

,

v

.

ILLINOIS DEPARTMENT OF

FINANCIAL AND PROFESSIONAL

REGULATION, et al.,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 16 C 11157

Virginia M. Kendall,

J udge

.

O R D E R

An Illinois agency allegedly suspended Dr. Arnold Phillips’s medical license

without notice or a hearing. The agency later restored his license, but his medical

practice suffered in the interim. Phillips sued agency officials under 42 U.S.C. § 1983 for

violating his Fourteenth Amendment right to due process. Believing that Phillips had

sued the defendants in their official capacities only, the district court dismissed the

complaint as barred by the Eleventh Amendment. Because the judge should have given

Phillips a chance to clarify whether he was suing the defendants in their personal

capacities, we vacate the judgment and remand for further proceedings. NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 17

‐ 2607 Page 2

We are reviewing the dismissal of a complaint, and so we recite its allegations.

Dr. Phillips paid a fee in June 2014 to the Illinois Department of Financial and

Professional Regulation’s Division of Public Regulation to renew his medical license.

Over the next few months, Phillips noticed a decline in patient referrals. He contacted

the agency in December and learned that it had placed his license on “inactive status”

because he supposedly had not paid a past disciplinary fine. When Phillips told the

agency that he had received no notice that it planned to inactivate his license and no

chance to challenge that action, the agency reinstated his license. But the damage was

done. While his license was inactivated, his business and reputation suffered.

This suit came next. Phillips, pro se

, sued seven current and former agency

employees under section 1983 for inactivating his license without due process. He did

not specify in what capacity he was suing the defendants. He sought damages and

asked the court “to direct the[] agencies to try to not make a habit of their malfeasance.”

The defendants moved to dismiss the complaint. They argued primarily that the

section 1983 claim was brought against them only in their official capacities and was

barred by the Eleventh Amendment. In reply, Phillips advised that he “did not file for

monetary damages from the pockets of the individual [d]efendants.” He added that the

defendants “personally and/or in a supervisory capacity” inactivated his license. He

also said that he “did not file for personal monetary damages from each [d]efendant

when they were functioning in their official capacities as public servants.”

The district judge dismissed the suit with prejudice. She construed the complaint

as one against the defendants in their official capacities. Citing McDonough Associates,

Inc. v. Grunloh

, 722 F.3d 1043 (7th Cir. 2013), the judge explained that state employees

can be sued in their official capacities only for injunctive relief to remedy an ongoing

violation of federal law. Because Phillips’s license was reactivated, she reasoned, no

violation of federal law was ongoing, and so the Eleventh Amendment barred the suit.

The judge never granted Phillips an opportunity to amend his complaint.

On appeal, Phillips challenges the dismissal of his section 1983 claim. The parties

focus on Eleventh Amendment immunity, but the correct approach is to start with the

text of section 1983. Because the statute permits suits only against a “person,” not a

state, Eleventh Amendment immunity is not at play. See Will v. Mich. Dep’t of State

Police

, 491 U.S. 58, 66–67 (1989); Kolton v. Frerichs

, 869 F.3d 532, 535–36 (7th Cir. 2017). A

suit against a state official in his official capacity is a suit against the state, and so a

plaintiff may not bring a section 1983 claim against a state employee in her official

capacity. Will

, 491 U.S. at 71; Kolton

, 869 F.3d at 535. But a plaintiff may seek damagesNo. 17

‐ 2607 Page 3

under section 1983 from a state official sued in her personal capacity for denying the

plaintiff due process when revoking the plaintiff’s professional license. See Hafer v.

Melo

, 502 U.S. 21, 27 (1991); Rebirth Christian Acad. Daycare, Inc. v. Brizzi

, 835 F.3d 742,

750–51 (7th Cir. 2016).

The defendants argue that the judge correctly interpreted Phillips’s complaint as

an effort to bring a section 1983 suit against state employees in their official capacities.

We review that decision by examining two factors. First, we assess whether the plaintiff

specified the capacity in which he is suing the defendants. See Hill v. Shelander

, 924 F.2d

1370, 1372 (7th Cir. 1991). If he did not so specify, then we look at the relief that the

plaintiff seeks: when the plaintiff seeks injunctive relief, then he has brought an

official

‐ capacity suit; when the plaintiff seeks damages, then his case is a

personal

‐ capacity suit. Miller v. Smith

, 220 F.3d 491, 494 (7th Cir. 2000).

Phillips’s complaint does not fit neatly into this framework. He never specified in

what capacity he brought his section 1983 claim. And in his complaint he requests both

damages and an injunction “to direct the[] agencies to try to not make a habit of their

malfeasance.” The pleading could thus be construed as bringing either official

‐ capacity

or personal

‐ capacity claims. See Miller

, 220 F.3d at 494; Wynn v. Southward

, 251 F.3d 588,

592 (7th Cir. 2001) (interpreting pro se litigant’s suit for damages as against defendants

in personal capacity because it could not be sustained if brought in official capacity).

Phillips’s response to the defendants’ motion to dismiss was also ambiguous. He

said that he “did not file for monetary damages from the pockets of the individual

[d]efendants.” This suggests an official

‐ capacity suit. But he also said that the

defendants “personally, and/or in a supervisory capacity” inactivated his license, and in

two other passages, he wrote that he was not seeking damages from the defendants

“when they were functioning in their official capacities as public servants.” This

language points the other way.

Faced with ambiguity, the district judge should not have decided conclusively

that Phillips was suing the defendants only in their official capacities. She should have

granted Phillips an opportunity to amend his complaint and clarify the matter or to

limit his claims to personal

‐ capacity allegations. “Plaintiffs

... as a matter of course,

almost always get an opportunity to amend their complaints at least once.” Luevano v.

Wal

‐ Mart Stores, Inc.

, 722 F.3d 1014, 1024 (7th Cir. 2013). Neither the district judge nor

the defendants explain why Phillips should not have been allowed at least one chance

to amend his pleading and resolve the problem.No. 17

‐ 2607 Page 4

We are mindful that Phillips did not ask the district judge through a post

‐ judgment motion, such as one under Federal Rule of Civil Procedure 59(e), to reinstate

the case and grant him leave to amend his complaint to clarify the matter. See Gonzalez

‐

Koeneke v. West

, 791 F.3d 801, 807 (7th Cir. 2015) (plaintiff may seek to amend complaint

by filing a post

‐judgment motion); but see Richardson v. Oldham

, 12 F.3d 1373, 1377

(5th Cir. 1994) (“Filing a Rule 59 motion is not a prerequisite to taking an appeal.”). But

a remand is still appropriate for two reasons.

First, at this point Phillips has expressed unambiguously his desire to sue the

defendants only in their personal capacity. After filing opening and reply briefs, he

asked to file a sur

‐ reply brief. (We have taken that motion with the appeal.) In this

motion, he explained that he “has now realized that the District Court and the State

have misunderstood [his] claims as being only against Defendants in their official

capacities.”

Second, Phillips has been litigating pro se

. “[D]istrict courts have a special

responsibility

... to allow ample opportunity for amending the complaint.” Donald v.

Cook Cnty. Sheriff ʹ s Dep ʹ t

, 95 F.3d 548, 555 (7th Cir. 1996); see also Rush v. State Ark.

DWS

, 876 F.3d 1123, 1125–26 (8th Cir. 2017) (observing pro se plaintiffs are “normally”

given leave to amend their pleadings). When faced with a complaint from a pro se

litigant that was “unclear rather than patently without merit,” the judge should have

provided an opportunity to amend it, even if the litigant did not file the post

‐ trial

motions that courts ordinarily require. See Williams v. Wahner

, 731 F.3d 731, 734 (7th Cir.

2013). And this case may have merit. See Rebirth Christian Acad. Daycare, Inc.

, 835 F.3d

at 750–51 (7th Cir. 2016) (vacating dismissal of suit for damages against state employees

sued in their personal capacities for revoking license without due process). Dismissal

with prejudice and without an explanation of why Phillips did not deserve a chance to

resolve the ambiguity through an amended complaint was an abuse of discretion.

See Foster v. DeLuca

, 545 F.3d 582, 585 (7th Cir. 2008).

The appellees seek to defend the dismissal on the alternative ground that the

complaint does not adequately allege how each defendant was personally involved in

the decision to inactivate his license. Phillips can attempt to address this problem in an

amended complaint on remand. Alternatively the defendants may ask the district court

to order Phillips under Rule 12(e) to provide a more definite statement. See Chapman v.

Yellow Cab Coop., 875 F.3d 846, 848–49 (7th Cir. 2017). But before the case is halted for

good, Phillips is entitled to an opportunity to fix these problems.No. 17

‐ 2607 Page 5

For the foregoing reasons, we VACATE the judgment and REMAND for further

proceedings. We DENY the motion to file a sur

‐ reply brief as moot.