Siddique v. Laliberte et al

Filing 60

ORDER signed by Judge J.P. Stadtmueller on 10/1/2018 GRANTING in part and DENYING in part 56 Defendants' Motion to Dismiss the Fourth Amended Complaint. Plaintiff's claim for violation of Fourteenth Amendment due process rights is DISMISSED; Plaintiff's First Amendment retaliation claim is PERMITTED to proceed. See Order for further details. (cc: all counsel, via mail to Mohammad Samir Siddique) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MOHAMMAD SAMIR SIDDIQUE,
Plaintiff,

Case No. 15-CV-1-JPS

v.
DR. MICHAEL LALIBERTE, DAVID
STOCKTON, and RICHARD R.
THOMAS,

ORDER

Defendants.
In the first three years of this case’s life, it broadly alleged a campaign
by officials of the University of Wisconsin-Milwaukee (“UWM”) to
undermine students’ rights to self-governance. In June 2017, the Court
granted Defendants’ motion to dismiss the action on several grounds,
including failure to effectuate service, state-law immunity, and improper
joinder. UWM Student Assoc. v. Lovell, 266 F. Supp. 2d 1121 (E.D. Wis. 2017).
The Court of Appeals reversed in part, finding that the case should not have
been dismissed for misjoinder. UWM Student Assoc. v. Lovell, 888 F.3d 854,
864 (7th Cir. 2018). Instead, it instructed the Court to permit the students an
opportunity to elect which of their claims they wished to proceed on, with
the remainder to be dismissed. Id.
The Court gave the students that choice, directing them to file an
amended complaint asserting only one set of properly joined claims.
(Docket #53). In this, the fourth amended complaint, the only remaining
plaintiff is Mohammad Samir Siddique (“Siddique”), a former UWM
undergraduate, and the only remaining defendants are UWM officials

Page 1 of 18

Michael Laliberte (“Laliberte”), David Stockton (“Stockton”), and Richard
Thomas (“Thomas”). Siddique—who is proceeding pro se after the students’
former counsel was suspended from the practice of law—asserts two
claims. (Docket #55). First, he alleges that Defendants violated the First
Amendment by retaliating against him for criticizing Stockton and
advocating for increased student government power and autonomy. The
retaliation came in the form of rejecting Siddique’s application to serve on
the on the Board of Trustees (“BOT”), a student government body created
in 2013, as well as false accusations of misconduct and other stigmatization
in the UWM community. Second, he claims that by rejecting his application
for the BOT, Defendants deprived him of a property or liberty interest
without due process, in violation of the Fourteenth Amendment.
Defendants have moved to dismiss the fourth amended complaint.
(Docket #56). That motion is fully briefed and, for the reasons stated below,
it will be granted in part and denied in part.
1.

BACKGROUND
At UWM, there previously existed a student government body

known as the Student Association (“SA”).1 Siddique was a prominent

Student government within the University of Wisconsin system emanates
in large measure from Wis. Stat. § 36.09, which reads, in pertinent part:
1

The students of each institution or campus subject to the
responsibilities and powers of the board, the president, the
chancellor, and the faculty shall have primary responsibility for
advising the chancellor regarding the formulation and review of
policies concerning student life, services, and interests. Students in
consultation with the chancellor and subject to the final
confirmation of the board shall have the responsibility for the
disposition of those student fees which constitute substantial
support for campus student activities. The students of each
institution or campus shall have the right to organize themselves in

Page 2 of 18

member. According to him, the SA was quite independent from the
university administration in its decision-making, and UWM student-affairs
officials were aggravated by the gall of students to disagree with their
preferred policies. School administrators sought to undermine the SA by
invalidating the body’s spring 2013 election results with bogus allegations
of fraud—substantiated by an equally spurious “independent review” of
the election performed by a committee of officials and students from UWWhitewater. The UWM officials leading this effort included the chancellor
and the Board of Regents, as well as the three defendants in this case:
Laliberte, the Vice Chancellor for Student Affairs; Stockton, the Coordinator
for Student Government Relations; and Thomas, the Director of the UWM
Student Union.
The UW-Whitewater review panel concluded that Siddique and his
student government party, which controlled all or nearly all of the SA,
sought to perpetuate themselves in office at the expense of an open and fair
election. UWM administrators used the investigation as a pretext to nullify
the election results and create an interim student government body, led by
the BOT, over which they would be able to exercise greater control. As with
the SA, student positions on the BOT were paid. At a meeting with the
deposed SA leaders in May 2013 regarding the creation of the BOT, UWM
chancellor Michael Lovell and Laliberte pressured the SA to exclude

a manner they determine and to select their representatives to
participate in institutional governance.
Id. § 36.09(5). Siddique and his fellow students have rallied under Section 36.09(5),
calling it a broad grant of authority and autonomy to students for self-governance.
Defendants, of course, disagree, noting that students’ rights are expressly curtailed
by the involvement and oversight of university administrators.

Page 3 of 18

Siddique from future participation in student government because of his
strong advocacy for student self-government rights.
In June 2013, despite this pressure from the administration, Siddique
applied for appointment to a position on the BOT. His application was
reviewed and rejected by Stockton and a UWM student, Anthony Dewees.
Siddique alleges that Stockton assessed whether applicants had a history of
supporting strong students’ rights, not whether they were qualified.
Siddique, who had been outspoken in his advocacy for students’ rights and
his criticism of Stockton personally, says he was rejected for these reasons
and not for his credentials.
In particular, Siddique alleges that during the 2012–2013 academic
year, he was a proponent for withdrawing the SA from a shared governance
committee at UWM because the committee sought to deprive students of
their self-government rights. After withdrawing from the shared
governance committee, the SA formed its own commission to advocate for
students’ rights, and Siddique served as the commission’s vice chair.
Additionally, Siddique served on other student government bodies and in
student political parties in which he advocated for more robust student selfgovernance, even in the face of university opposition. Finally, Siddique
sponsored and voted in favor of SA legislation in early 2013 which criticized
Stockton and accused him of unlawfully interfering in student government.
Siddique alleges that these were the impetus for his rejection from
the BOT. He believes that, but for Defendants’ ill will and decision to
categorically exclude him from the BOT for his prior advocacy, he would
have been selected, as he “was among the most qualified applicants based
on experience of effective service in the SA.” (Docket #55 at 8).

Page 4 of 18

In addition to his rejection from the BOT, Siddique details two other
episodes of retaliation by UWM officials. First, in late June 2013, the newly
constituted BOT held an orientation session. At the session, Stockton,
Laliberte, and other, unnamed individuals “falsely alleged that the
previous student government, the ‘old SA’ consisted of members who had
engaged in sexual harassment, racism, election fraud and attempted
murder by poisoning, and corruptly attempted to perpetuate themselves in
office.” Id. These false accusations were repeated in later meetings between
BOT leaders, Stockton, and Laliberte, including an allegation that Siddique
was an SA “enforcer” who threatened and intimidated those who opposed
it. Id.
Second, on April 15, 2014, Thomas sent an email to all student union
staff stating that the former SA’s officers worked to preserve their own
power at the expense of others and undermined the student government’s
system of checks and balances. Siddique alleges that it was easy to identify
this derogation with him, as he was within the small group of former SA
leaders and was publicly known to have advocated for an alternate SA
constitution. Siddique views the email as a confirmation that he was denied
the BOT position because of false allegations of corruption. This email,
along

with

the

June

2013

BOT

meeting

and

“other

similar

communications,” represents in Siddique’s mind Defendants unfairly
stigmatizing and deriding him for his non-appointment to the BOT. Id. at 9.
2.

LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of

complaints which fail to state a viable claim for relief. Fed. R. Civ. P.
12(b)(6). To state a viable claim, a complaint must provide “a short and
plain statement of the claim showing that the pleader is entitled to relief.”
Page 5 of 18

Fed. R. Civ. P. 8(a)(2). In other words, the complaint must give “fair notice
of what the. . .claim is and the grounds upon which it rests.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). The allegations must
“plausibly suggest that the plaintiff has a right to relief, raising that
possibility above a speculative level[.]” Kubiak v. City of Chi., 810 F.3d 476,
480 (7th Cir. 2016) (quotation omitted).
In reviewing the complaint, the Court is required to “accept as true
all of the well-pleaded facts in the complaint and draw all reasonable
inferences in favor of the plaintiff.” Id. at 480–81. However, a complaint that
offers “‘labels and conclusions’” or “‘a formulaic recitation of the elements
of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 555). The Court must identify allegations
“that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Id. at 679. The Court is further obliged to give
Siddique’s pro se allegations, “‘however inartfully pleaded,’” a liberal
construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).2
3.

DISCUSSION
While Siddique harbors a mistaken view of the reach of due process,

in view of the leniency afforded to pro se litigants, the Court concludes that
his First Amendment retaliation claim can proceed past the pleading phase.
It is clear that Siddique’s former counsel drafted the fourth amended
complaint, not Siddique himself. Siddique explains that the lawyer “would
otherwise [have] file[d] the instant pleading himself” but for his suspension.
(Docket #55 at 1 n.1). Surely counsel would not have filed a complaint drafted by
his client. Thus, it is strange to grant the present complaint, drafted by a lawyer,
the leniency afforded to pro se pleadings. Yet the rule speaks in terms of who filed
the document in question; it does not give the Court discretion to look behind the
filer for a ghostwriter.
2

Page 6 of 18

The Court will address each of Defendants’ arguments in turn, though not
in the order they present them.
3.1

Due Process Claim

At the outset, the Court can dismiss Siddique’s claim for violation of
his right to due process. The Fourteenth Amendment prohibits state
officials from depriving individuals of life, liberty, or property without due
process of law. Colon v. Schneider, 899 F.2d 660, 666 (7th Cir. 1990). Such a
claim requires the plaintiff to establish “(1) a cognizable liberty or property
interest; (2) the deprivation of that interest by some form of state action; and
(3) the failure to employ constitutionally adequate procedures.”
Dietchweiler by Dietchweiler v. Lucas, 827 F.3d 622, 627 (7th Cir. 2016).
Siddique’s claim fails on the first element, as he enjoyed no constitutionally
protected interest in appointment to the BOT.
To be entitled to due process, a plaintiff must have a liberty or
property interest at stake; not every deprivation rises to the level of a
constitutional concern. Protectible property interests “are not created by the
Constitution. Rather, they are created and their dimensions defined by an
independent source such as state statutes or rules entitling the citizen to
certain benefits.” Goss v. Lopez, 419 U.S. 565, 572–73 (1975). Further, when
examining these sources for qualifying interests, the Supreme Court has
instructed that “a person clearly must have more than an abstract need or
desire for [a benefit]. He must have more than a unilateral expectation of it.
He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents
v. Roth, 408 U.S. 564, 577 (1972).
Siddique’s qualifications for the BOT position do not equate with
entitlement. Even assuming he was the best candidate, it does not follow
that some state law or other authority guaranteed him the position he
Page 7 of 18

sought or so confined Stockton’s review that Stockton should have had no
choice but to hire him. Siddique identifies no such authority. The Seventh
Circuit has held that applicants for prospective employment nearly always
lack a protectible property interest in being hired. Moore v. Muncie Police &
Fire Merit Comm’n, 312 F.3d 322, 326–27 (7th Cir. 2002); Petru v. City of
Berwyn, 872 F.2d 1359, 1363 (7th Cir. 1989) (firefighter had no property
interest in promotion even though he was highest-ranked candidate).
Siddique’s unilateral belief that he was a superlative applicant is not
enough to invoke constitutional protections, as it does not rise to the level
of a “mutually explicit understanding” between the parties that he would
be selected. Crim v. Bd. of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 545 (7th
Cir. 1998).
Indeed, his interest in prospective employment is noticeably less
compelling than an interest in continued employment, which is the usual
factual scenario in due process cases. See Perry v. F.B.I., 781 F.2d 1294, 1300
(7th Cir. 1986); Omosegbon v. Wells, 335 F.3d 668, 674 (7th Cir. 2003). Even
individuals who are actually hired but are discharged during a
probationary period have a difficult time establishing the existence of a
property interest. See Farmer v. Lane, 864 F.2d 473, 479 (7th Cir. 1988). As
explained below, while UWM officials might contravene the First
Amendment by rejecting Siddique in retaliation for his speech, that does
not mean that he had a right to serve on the BOT in the first place. See O’Hare
Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 716–17 (1996) (“[A]lthough
a policeman ‘may have a constitutional right to talk politics. . .he has no
constitutional right to be a policeman[.]’”) (quoting McAuliffe v. Mayor of
New Bedford, 29 N.E. 517, 517 (Mass. 1892)).

Page 8 of 18

Siddique relies not only on his rosy view of his qualifications, but
also on Wis. Stat. § 36.09(5), which he believes entitles him to participation
in student government. (Docket #58 at 11). He is mistaken. The statute
broadly defines the rights of students to govern themselves subject to
permissible rules imposed by school administrators. See Wis. Stat. §
36.09(5); supra note 1. It says nothing of the BOT or applicants for BOT
appointments; in fact, it says nothing about individual students being
employed in any specific position within any body or group whatsoever.
Siddique recognizes this in his complaint, noting that the statute affords
rights to “the student body.” (Docket #55 at 3). Section 36.09(5) does not
give Siddique or any other particular student a constitutionally cognizable
entitlement to participate in a certain student government group. See Miller
v. Crystal Lake Park Dist., 47 F.3d 865, 867 (7th Cir. 1995) (“A ‘legitimate claim
of entitlement’ is one that is legally enforceable—one based on statutes or
regulations containing ‘explicitly mandatory language’ that links ‘specified
substantive predicates’ to prescribed outcomes.”) (quoting Kentucky Dep’t
of Corr. v. Thompson, 490 U.S. 454, 463 (1989)).
Nor has Siddique plausibly alleged the deprivation of a liberty
interest. In the employment context, a plaintiff may establish the
deprivation of a liberty interest by showing damage to his “good name,
reputation, honor, or integrity,” Wisconsin v. Constantineau, 400 U.S. 433, 437
(1971), but the alleged stigma “must take concrete forms and extend beyond
mere reputational interests,” Omosegbon, 335 F.3d at 675 (citing Paul v.
Davis, 424 U.S. 693, 711–12 (1976)). Thus, the plaintiff “must show that the
government distinctly altered his legal status in addition to tarnishing his
good name.” Roake v. Forest Preserve Dist. of Cook Cnty., 849 F.3d 342, 347
(7th Cir. 2017). Siddique cannot make this showing; by failing to hire him
Page 9 of 18

for the BOT position, Stockton did not alter Siddique’s existing legal status,
such as might occur if he was fired from a position he was presently
holding. Id. Siddique calls the failure to hire him a “loss of employment,”
(Docket #58 at 11), but the two are materially different. He had no job that
was taken from him, nor any entitlement to it.
Moreover, Siddique would have to prove more than that he was “not
[hired] in one particular job.” Perry v. Sindermann, 408 U.S. 593, 599 (1972).
Instead, the damage to his reputation must be so severe that “it becomes
virtually impossible for [him] to find employment in his chosen field,” for
at that point “the government has infringed upon that individual’s liberty
interest to pursue the occupation of his choice.” O’Gorman v. City of Chi., 777
F.3d 885, 891 (7th Cir. 2015). In this instance, Siddique complains that UWM
officials stigmatized him, but there is no rational inference from the
allegations that he was deprived of other employment opportunities at the
university. Certainly, it cannot be said that participation in the student
government was Siddique’s “occupation,” even if it was among his
extracurricular interests.
Having no constitutionally protected property or liberty interest at
stake, Siddique was entitled to no process at all before being denied the
BOT appointment. Consequently, this claim must be dismissed.3

Along with his opposition to Defendants’ motion, Siddique proposed the
filing of a fifth amended complaint in the event the Court found that it solved the
problems Defendants identified in the fourth. See (Docket #58-1). The fifth
amended complaint includes additional allegations about the lack of process
afforded before Siddique’s rejection from the BOT, but nothing in it suggests that
state law or a mutually explicit understanding between the parties gave him
something more than a unilateral hope of being hired. Nor does the fifth amended
complaint plausibly allege that his legal status was altered by Defendants’
disparagement. Allowing amendment would not insulate the claim against a
3

Page 10 of 18

3.2

First Amendment Retaliation

Siddique’s remaining claim is for retaliation against him for
engaging in constitutionally protected speech. To prevail on a First
Amendment retaliation claim, the plaintiff must show that “(1) he engaged
in activity protected by the First Amendment; (2) he suffered a deprivation
that would likely deter First Amendment activity in the future; and (3) the
First Amendment activity was ‘at least a motivating factor’ in the
defendant’s decision to take the retaliatory action.” Bridges v. Gilbert, 557
F.3d 541, 546 (7th Cir. 2009) (quoting Woodruff v. Mason, 542 F.3d 545, 551
(7th Cir. 2008)). Here, assuming Siddique’s allegations are true and taking
all reasonable inferences in his favor, it is clear that he engaged in protected
speech and that his speech was the predominant factor in Defendants’
decision-making.4
The parties’ dispute turns instead on the second factor: whether
Defendants did something in retaliation for Siddique’s speech that would
deter a reasonable person from future, similar speech. In his complaint,

future motion to dismiss on these grounds. As such, amendment would be futile,
and the Court will not allow it. Foman v. Davis, 371 U.S. 178, 181–82 (1962);
Crestview Vill. Apts. v. U.S. Dep’t Of Housing & Urban Dev., 383 F.3d 552, 558 (7th
Cir. 2004); Garcia v. City of Chi., 24 F.3d 966, 970 (7th Cir. 1994).
Siddique views his former position on the SA and his prospective position
on the BOT as employment. It is an open question whether he could be considered
an employee of the university and, if so, whether his speech as part of his duties
as an SA officer enjoys diminished constitutional protection for that reason. See
Comsys, Inc. v. Pacetti, 893 F.3d 468, 471 (7th Cir. 2018) (“[A] public employee
cannot use the First Amendment to block (or get damages for) a discharge that
follows things the worker said as part of the job.”) (citing Garcetti v. Ceballos, 547
U.S. 410, 422 (2006)). Defendants did not make this argument and the Court
declines to undertake that analysis without the benefit of adversarial
development, as it is unclear the extent to which the doctrine might apply to a
university student operating as a student government official.
4

Page 11 of 18

Siddique focuses on his rejection from the BOT as the primary adverse
action at issue. But woven throughout the allegations is another theory: that
Defendants’ derogatory statements chilled his free speech rights, separate
and apart from the BOT rejection. Under the lenient standard of review
applicable at this juncture, the Court finds that both theories can proceed.
3.2.1

Rejection from the BOT

An employer cannot retaliate against a person by refusing to hire
him for a position because of his protected speech. George v. Walker, 535 F.3d
535, 538 (7th Cir. 2009). Liberally construing Siddique’s allegations, it is no
stretch to infer that Stockton rejected his application to the BOT in
substantial part because of his advocacy for students’ rights, his
participation in the SA, and his attacks on Stockton personally. Defendants
think that Siddique’s examples of his protected speech, and their
connection to his rejection, are conclusory and speculative, but the Court
does not share that view. Siddique has offered more than “bare allegations
of malice” and has instead connected specific speech acts with ensuing
retaliatory actions, supporting an inference of improper motive. Harlow v.
Fitzgerald, 457 U.S. 800, 817 (1982). His allegations far exceed those in Dewey
v. University of New Hampshire, 694 F.2d 1, 3–4 (1st Cir. 1982), where a
university professor could not proceed on a claim that he was forced into
retirement in retaliation for unspecified conversations on matters of public
concern over the course of six years prior to his discharge. Considering that
this is a pro se submission, it easily crosses the plausibility threshold. Iqbal,
556 U.S. at 678; Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir. 1981)
(“Where the challenged complaint is one that has been prepared without
the benefit of legal expertise, it must be liberally construed to determine
whether it” states a viable claim for relief).
Page 12 of 18

Defendants maintain that Laliberte and Thomas cannot be sued
under this theory for a separate reason: they lacked personal involvement
in the decision to reject Siddique’s application. Alejo v. Heller, 328 F.3d 930,
936 (7th Cir. 2003) (“A plaintiff bringing a civil rights action must prove that
the defendant personally participated in or caused the unconstitutional
actions.”). But in view of the fact that they were high-level administrators
involved in student affairs, were intimately involved in the retaliatory
dismantling of the SA, and knew of and disliked Siddique’s advocacy, it
can be inferred that Stockton acted at their direction or with their
knowledge and consent. Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985);
Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). This is particularly true
for Laliberte, who was Stockton’s superior. Thus, this portion of the claim
may proceed against all Defendants for the present.
3.2.2

Stigmatization in the Student Community

Siddique’s second retaliation theory is that Defendants viciously
defamed him in retaliation for his speech. Here, Siddique points to Stockton
and Laliberte’s salacious allegations at the June 2013 BOT meeting and after,
and Thomas’ derogatory statements in his April 2014 email. Normally
retaliatory speech is actionable “only in situations of threat, coercion, or
intimidation that punishment, sanction, or adverse regulatory action will
immediately follow.” Novoselsky v. Brown, 822 F.3d 342, 356 (7th Cir. 2016).
Siddique does not allege that he was threatened with punishment, only
demeaned and slandered, rendering him a pariah in the student
government community.
Isolated instances of public ridicule will not amount to actionable
retaliatory harassment unless they are egregious enough to deter a person
of ordinary firmness from exercising his right to speak. For example, in
Page 13 of 18

Hutchins v. Clarke, 661 F.3d 947, 956–57 (7th Cir. 2011), the Seventh Circuit
found that former Milwaukee County Sheriff David Clarke’s statements on
a radio show about a deputy who had criticized him did not amount to
retaliation. In that case, Clarke publicly accused his employee of being a
slacker and falsely suggested that the deputy had been disciplined for
sexual harassment. Id. The Court of Appeals observed that Clarke’s
statements did not threaten punishment, and that “[e]ven if some
‘harassment and ridicule’ might be retaliatory speech under § 1983, Sheriff
Clark[e]’s statements did not rise to that level.” Id. at 956–57 (quotation
omitted). After all, courts must balance the plaintiff’s right to speak without
fear of retaliation against the defendant’s own right to free speech. Id. at
956; see also Novoselsky, 822 F.3d at 356 (“Unconstitutional retaliation by a
public official requires more than criticism or even condemnation.”). That
said, sufficiently humiliating or opprobrious statements will sustain a
retaliation claim, such as in Bloch v. Ribar, 156 F.3d 673, 679–80 (6th Cir.
1998), where a sheriff disclosed intimate details of a rape over the radio to
embarrass the victim. See Hutchins, 661 F.3d at 957.
Here, the complaint alleges that Defendants falsely accused Siddique
of sexual harassment, attempted murder, corruption, and fraud. These
appear to have been isolated, though humiliating, comments. Yet, given the
applicable standard of review, the Court finds that the claim deserves
further development in discovery. See Chapman v. Yellow Cab Coop., 875 F.3d
846, 848 (7th Cir. 2017) (emphasizing generosity afforded to pro se litigants
when evaluating a motion to dismiss). Elaboration as to what precisely was
said and when will allow a more fulsome assessment of whether the
comments were sufficiently egregious to amount to actionable retaliation.

Page 14 of 18

Similarly, the Court finds that Defendants’ retaliatory speech might
be actionable under a theory that it amounted to a “campaign of petty
harassments.” Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982). In her
concurrence in Hutchins, Judge Williams noted that the Seventh Circuit has
long recognized that retaliation can occur in the absence of a threat and in
the absence of a single reproachful comment. Hutchins, 661 F.3d at 958
(Williams, J., concurring). Where an employer makes his employee’s life
miserable through a long course of petty indignities, diminished work
assignments, or false accusations of misconduct, a retaliation claim may lie.
Id. (citing DeGuiseppe v. Vill. of Bellwood, 68 F.3d 187, 192 (7th Cir. 1995)).
Those precedents might support Siddique’s retaliation claim even if the
individual speech acts are not so offensive as to satisfy Hutchins. Again,
further development in discovery is warranted to flesh out the facts for a
comparison against the pertinent legal standards.
For the reasons stated above, the Court will deny Defendants’
motion to dismiss Siddique’s First Amendment retaliation claim.
3.3

Remaining Arguments

The Court has determined that Siddique’s First Amendment
retaliation claim has plausible merit. Because of this, the Court must now
address Defendants’ other, more generalized arguments for dismissing
Siddique’s suit. None of them hold water.
First, as in their prior motions to dismiss, Defendants contend that
the fourth amended complaint is not short and plain, as Rule 8 requires.
(Docket #57 at 7–9); Fed. R. Civ. P. 8(a)(2) (a complaint must include “a short
and plain statement of the claim showing that the pleader is entitled to
relief”). While prior complaints were inscrutable tomes, the present

Page 15 of 18

complaint is only twelve pages long. (Docket #55). Thus, its length does not
raise Rule 8 concerns.
Further, the Court rejects Defendants’ claim that the complaint is
unintelligible. They say that Siddique does not identify which Defendants
performed which acts, or which Defendants are sued under which theory,
but the Court’s factual recitation and its discussion herein demonstrate that
this is untrue. At a minimum, under its obligation to liberally construe pro
se submissions, Erickson, 551 U.S. at 94, the Court was able to make out
enough of the story to find that this claim can proceed past the pleading
stage. Moreover, Siddique has withdrawn his vague allegation seeking a
declaratory judgment for “the UWM administration’s use of official
influence” to bar him from student government, which was one of
Defendants’ primary sticking points. (Docket #58 at 3).
Second, though Siddique does not specify whether he brings claims
against Defendants in their individual or official capacities, this is not a fatal
flaw, contrary to Defendants’ assertion. (Docket #57 at 19–20). In Section
1983 actions, the presumption is that a claim is brought against a state
official in his individual capacity if not specified, as the Eleventh
Amendment bars damages claims against state officials sued in their official
capacities. Brokaw v. Mercer Cnty., 235 F.3d 1000, 1009 (7th Cir. 2000). The
allegations here bear out this conclusion. Unlike prior complaints, Siddique
does not seek injunctive relief, so there is no reason to consider this an
official-capacity suit. See Hill v. Shelander, 924 F.2d 1370, 1374 (7th Cir. 1991);
Ameritech Corp. v. McCahn, 297 F.3d 582, 586 (7th Cir. 2002).
Third, Defendants seek dismissal on the basis of qualified immunity.
(Docket #57 at 20–22). Qualified immunity protects government officials
“from liability for civil damages insofar as their conduct does not violate
Page 16 of 18

clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow, 457 U.S. at 818. To surmount the
defense, Siddique must show: (1) that the facts as alleged amount to a
violation of a constitutional right; and (2) the right at issue was clearly
established at the time of Defendants’ misconduct. Pearson v. Callahan, 555
U.S. 223, 232 (2009). Both elements are satisfied by the allegations of the
fourth amended complaint for purposes of Siddique’s First Amendment
claim. As detailed above, he has alleged conduct that amounts to unlawful
retaliation for his protected speech, and longstanding appellate precedent
prohibits officials from refusing to hire a person because of his protected
speech or from making sufficiently humiliating comments about him.
Further, it must be remembered that qualified immunity is disfavored as a
reason for dismissal at the pleading stage. See Jacobs v. City of Chi., 215 F.3d
758, 765 n.3 (7th Cir. 2000). The defense may be raised again at summary
judgment if the facts support it.
Finally, Defendants offer a one-paragraph assertion that Siddique
lacks standing to sue because he has no legally protected interest in
participation on the BOT. (Docket #57 at 18–19). Whether he has standing
to bring a due process claim is irrelevant, as that claim lacks legal merit in
any event. See supra Part 3.1. For purposes of his First Amendment claim,
however, Siddique enjoys standing to redress violations of his
constitutional rights even if his damages ultimately are nominal. Kyle v.
Patterson, 196 F.3d 695, 697 (7th Cir. 1999). Put simply, while Siddique had
no due process entitlement to the BOT position, he had a right not to be
rejected in retaliation for his protected speech. Perry, 408 U.S. at 597
(“[E]ven though a person has no ‘right’ to a valuable governmental benefit
and even though the government may deny him the benefit for any number
Page 17 of 18

of reasons, there are some reasons upon which the government may not
rely. It may not deny a benefit to a person on a basis that infringes his
constitutionally protected interests—especially, his interest in freedom of
speech.”).
4.

CONCLUSION
While Siddique’s due process claim falters on threshold legal

requirements, he has offered sufficient factual allegations to support his
claim for retaliation for his protected speech under the First Amendment.
That claim may proceed, and the Court will contemporaneously set a
scheduling conference in order to provide the parties with the timeline for
the expeditious conclusion of this case.
Accordingly,
IT IS ORDERED that Defendants’ motion to dismiss the fourth
amended complaint (Docket #56) be and the same is hereby GRANTED in
part and DENIED in part as stated herein.
Dated at Milwaukee, Wisconsin, this 1st day of October, 2018.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

Page 18 of 18