Reif, Paul et al v. State of Wisconsin Department of Corrections et al

Filing 19

OPINION & ORDER granting 15 Motion for Partial Summary Judgment. Defendant State of Wisconsin Department of Corrections is DISMISSED from the case. Signed by District Judge James D. Peterson on 12/1/17. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

PAUL REIF and STEVEN BOEHM,
Plaintiffs,
v.

OPINION & ORDER

STATE OF WISCONSIN DEPARTMENT OF
CORRECTIONS and DENISE SYMDON,

16-cv-766-jdp

Defendants.
Plaintiffs Paul Reif and Steven Boehm worked for the Wisconsin Department of
Corrections (DOC) as absconder agents tasked with locating and apprehending parolees who
violated the terms of parole. Over the past two decades, they have advocated to allow absconder
agents to carry firearms on the job. They allege that defendants the DOC and Denise Symdon,
the administrator of the DOC Division of Community Corrections, disciplined them in
retaliation for their advocacy. They bring First Amendment claims under 42 U.S.C. § 1983
against the DOC and Symdon individually and in her official capacity. Dkt. 1. They seek
judgment “that the defendants’ retaliatory actions denied Reif and Boehm of their right to free
speech,” compensatory damages (including “reimbursement for all loss of wage and
unnecessary use of sick leave”), and punitive damages. Id. at 10.
Defendants move for partial summary judgment dismissing all claims against the DOC
and those against Symdon in her official capacity, arguing that only suits against state officials
in their individual capacity may be brought under § 1983. Dkt. 15. Defendants style their
motion as one for summary judgment, but they adduce no evidence and explain that the motion
concerns “a strictly legal issue,” Dkt. 16, at 2 n.1, that is, failure to state a claim, so it is properly

considered a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Smoke Shop,
LLC v. United States, 761 F.3d 779, 782 n.1 (7th Cir. 2014). Thus, the court will accept
plaintiffs’ factual allegations as true and draw all inferences from the facts in their favor. Zahn
v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). Plaintiffs must allege
sufficient facts to state a claim for relief that is plausible on its face. Id.
The Eleventh Amendment “bars actions in federal court against a state, state agencies,
or state officials acting in their official capacities” unless the state waives immunity, Congress
abrogates it, or the claim falls under the exception articulated by the Supreme Court in Ex Parte
Young, 209 U.S. 123 (1908). Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., 603
F.3d 365, 370–71 (7th Cir. 2010). Section 1983 allows for suits against “persons,” but “neither
a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). “Official-capacity suits against state officials
seeking prospective relief [i.e., injunctive relief against ongoing or anticipated violations] are
permitted by § 1983, and under Ex Parte Young, they are not barred by the Eleventh
Amendment.” Williams v. Wisconsin, 336 F.3d 576, 581 (7th Cir. 2003) (citations omitted).
Here, plaintiffs do not seek prospective relief, so their claims against the DOC and Symdon in
her official capacity are barred.
Plaintiffs argue that their claims for “future wage and benefits losses” are claims for
equitable relief that may be brought against state agencies and state officials in their official
capacity, citing Burkes v. Klauser, 185 Wis. 2d 308, 517 N.W.2d 503 (1994). Dkt. 17, at 2.
But Burkes makes clear that only claims for prospective equitable relief to end a continuing
violation of federal law—that is, injunctive relief—are allowed. 517 N.W.2d at 522; accord Green
v. Mansour, 474 U.S. 64, 68 (1985) (“Young also held that the Eleventh Amendment does not

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prevent federal courts from granting prospective injunctive relief to prevent a continuing
violation of federal law. We have refused to extend the reasoning of Young, however, to claims
for retrospective relief.” (citation omitted)). Plaintiffs do not allege a continuing violation of
federal law, nor do they explain how they intend to recover future wages—their complaint
concerns only past lost wages. Plaintiffs’ claims against the DOC and Symdon in her official
capacity are barred by § 1983, so the court will grant defendants’ motion.

ORDER
IT IS ORDERED that:
1. Defendants State of Wisconsin Department of Corrections and Denise Symdon’s
motion to dismiss claims against the State of Wisconsin Department of Corrections
and Denise Symdon in her official capacity, Dkt. 15, is GRANTED.
2. Defendant State of Wisconsin Department of Corrections is DISMISSED from the
case.
Entered December 1, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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