NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 29, 2013*
Decided August 30, 2013
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13‐1609
ELOUISE BRADLEY, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of
Wisconsin.
v.
No. 12‐C‐1244
WISCONSIN DEPARTMENT OF
CHILDREN AND FAMILIES, Rudolph T. Randa,
Defendant‐Appellee. Judge.
O R D E R
Elouise Bradley appeals from the dismissal of her lawsuit against the Wisconsin
Department of Children and Families. We affirm the judgment.
*
After examining the parties’ briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 13‐1609 Page 2
Bradley sued the Department in federal court after it revoked her license to
operate a childcare center. See WIS. STAT. §§ 48.65–48.66, 48.715. Bradley’s claims are
poorly defined, but she principally alleges that the Department’s stated reason for the
revocation—child abuse and neglect—is pretextual and that the Department actually
shut down her business because of her race and age. Her complaint might also be read
to claim that the Department defamed her and caused her to suffer emotional distress.
The Department moved to dismiss the lawsuit on three grounds. First, the
Department argued that, to the extent Bradley complains about administrative action
resulting in the revocation of her license, her exclusive remedy is a petition for judicial
review under the state’s Administrative Procedure Act. See WIS. STAT. §§ 48.72,
227.52–227.53; State ex rel. First Nat’l Bank of Wis. Rapids v. M & I Peoples Bank of Coloma,
263 N.W.2d 196, 200 (Wis. 1978). Second, the Department argued that Bradley’s claims,
if arising under state tort law, are barred by the Eleventh Amendment as well as
sovereign immunity. Lastly, the Department asserted that, if Bradley is claiming a
constitutional violation actionable under 42 U.S.C. § 1983, then her complaint fails to
state a claim for relief, see FED. R. CIV. P. 12(b)(6), because the Department is not a
“person” within the meaning of § 1983. In her response Bradley did not confront the
Department’s asserted defenses but requested a pretrial hearing and added that the
defendant had deprived her of a property right in her daycare license. The district court
granted the Department’s motion, though the court read Bradley’s complaint more
narrowly than the agency. The court understood Bradley to be complaining about
regulatory action taken by the Department, and that dispute, the court reasoned, is
beyond its subject‐matter jurisdiction. The court did not construe Bradley’s complaint to
include claims arising under state tort law, and reasoned that sovereign immunity bars
any claim that Bradley intended to raise under § 1983.
On appeal Bradley does not quarrel with the district court’s reading of her
complaint. Neither does she challenge the court’s rejection of her state‐law claim about
the Department’s regulatory action, and so we need not discuss the jurisdictional
limitation perceived by the district court. Bradley’s only argument in this court concerns
constitutional claims she intended to pursue under § 1983. The district court reasoned
that Bradley’s § 1983 theories are not actionable because the Department is entitled to
sovereign immunity, but that conclusion overlooks a more‐fundamental problem. As
the agency recognizes, the Department is not a person subject to liability under § 1983,
see Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Johnson v. Supreme Court of Ill.,
165 F.3d 1140, 1141 (7th Cir. 1999), and district courts always should address statutory
defenses under § 1983 before constitutional ones, Parker v. Franklin County Cmty. Sch.
No. 13‐1609 Page 3
Corp., 667 F.3d 910, 925 (7th Cir. 2012). Because the Wisconsin Department of Children
and Families is a state agency, see WIS. STAT. § 15.20, Bradley cannot pursue a § 1983 suit
against it.
AFFIRMED.