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Smith v. U.S.

United States Court of Appeals, Seventh Circuit
Nov 6, 2008
298 F. App'x 510 (7th Cir. 2008)

Opinion

No. 08-2205.

Submitted October 30, 2008.

The defendants were not served with process in the district court and are not participating in this appeal. After examining appellant's brief and the record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the appellant's brief and the record. See FED. R.APP. P. 34(a); CIR. R. 34(f).

Decided November 6, 2008.

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 08-C-262, Rudolph T. Randa, Chief Judge.

Barry J. Smith, Milwaukee, WI, for Plaintiff-Appellant.

Before WILLIAM J. BAUER, Circuit Judge, JOHN L. COFFEY, Circuit Judge MICHAEL S. KANNE, Circuit Judge.



ORDER

Barry Smith, a resident of Milwaukee, Wisconsin, was disqualified from running for alderman because of a prior conviction. Smith then tried to sue the United States and the State of Wisconsin for damages because, he says, the law that prohibits him from appearing on the ballot violates his rights under the Thirteenth, Fourteenth, and Fifteenth Amendments of the United States Constitution. Because Smith asked to proceed in forma pauperis, the district court screened his complaint before service of process. See 28 U.S.C. § 1915(a)(1), (e)(2)(b)(ii); Rome v. Shake, 196 F.3d 778, 783 (7th Cir. 1999). The court dismissed the suit on the grounds that Smith fails to state an actionable claim and, in any event, has sued the wrong parties.

We agree that Smith sued the wrong parties. The State of Wisconsin cannot be sued under 42 U.S.C. § 1983 — as Smith tries to do — both because a state is not a "person" for purposes of that statute, and because a suit against a state for money damages is barred by the Eleventh Amendment. See Will v. Mich. Dept. of State Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Porco v. Trs. of hid. Univ., 453 F.3d 390, 395 (7th Cir. 2006). And the United States is immune from suit unless it consents to be sued. See Hercules, Inc. v. United States, 516 U.S. 417, 422, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996); Parrott v. United States, 536 F.3d 629, 634 (7th Cir. 2008). Smith points to no statute where the United States has waived its immunity for these claims.

Instead, Smith purports to correct the defects in his complaint by attaching to his appellate brief a proposed amended complaint naming the City of Milwaukee as a defendant. Smith argues that he should be allowed him to amend his complaint, but he never tried to do so in the district court. We will not entertain arguments raised for the first time on appeal. In re Willett, 544 F.3d 787, 793 n. 5 (7th Cir. 2008); Domka v. Portage County, Wis., 523 F.3d 776, 784 (7th Cir. 2008). Nor may Smith amend his complaint on appeal. See Holman v. Indiana, 211 F.3d 399, 406 (7th Cir. 2000); Hamlin v. Vaudenherg, 95 F.3d 580, 583-84 (7th Cir. 1996).

Accordingly, the judgment of the district court is

AFFIRMED.


Summaries of

Smith v. U.S.

United States Court of Appeals, Seventh Circuit
Nov 6, 2008
298 F. App'x 510 (7th Cir. 2008)
Case details for

Smith v. U.S.

Case Details

Full title:Barry J. SMITH, Plaintiff-Appellant, v. UNITED STATES of America and State…

Court:United States Court of Appeals, Seventh Circuit

Date published: Nov 6, 2008

Citations

298 F. App'x 510 (7th Cir. 2008)

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