NONPRECEDENTIAL DISPOSITION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
Argued August 9, 2017
Decided August 21, 2017
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 14-2130
Appeal from the
ZACHARY M. MUTTER, United States District Court
Plaintiff-Appellant, for the Northern District of Illinois,
Eastern Division.
v.
No. 13 C 8580
WILLIAM RODRIGUEZ, et al.,
Defendants-Appellees. John W. Darrah,
Judge.
ORDER
Zachary Mutter filed suit against state officials after they expelled him from the
University of Illinois at Chicago (UIC) for brandishing a firearm. The district court
dismissed his complaint, partly under the Eleventh Amendment and partly for failure to
state a claim. Because the Eleventh Amendment bars the claims for damages and
Mutter’s claim for prospective relief is moot, we affirm the dismissal.
The complaint alleges the following events. Mutter, formerly a second-year
dentistry student at UIC, was walking home from the library with a friend in October
2013 when he saw a woman being “brutally attacked.” He was carrying concealed in a
holster his pistol, which was registered in Missouri, his home state. He had no Illinois
No. 14-2130 Page 2
firearm owner’s identification card or license to carry his gun in Illinois at the time of the
attack.
Mutter eventually drew his gun. He yelled at the attacker, who ran toward Mutter
and his friend. While advancing, the man was “shuffling in his pockets, swearing in a
menacing tone and furtively attempting to retrieve an unknown object from his jacket,
all the while yelling threatening, racially insensitive statements.” Mutter told the
attacker to stop. The man returned to the woman he had been attacking and they sped
off in a car, but the car later reappeared in Mutter’s path. The attacker left the car and
again threatened Mutter, repeating his “furtive movements in an attempt to retrieve an
unknown object from his pocket” and “racially charged epithets.” A car with four
“student patrol officers” then arrived. After Mutter, still armed, demanded their help,
the students “locked their vehicle’s doors and rolled up the windows.” As the student
patrollers looked on, Mutter aimed his gun again at the attacker. The man then retreated.
Mutter’s friend called 911 while Mutter went to his apartment to put his gun away.
After campus police arrived, the student patrol officers signed criminal
complaints against Mutter. They said that he had “plac[ed] their lives in jeopardy.” The
police arrested him and he was eventually charged with four counts of reckless conduct
with a firearm and two counts of aggravated unauthorized use of a firearm. Several
charges were later dismissed, and Mutter was acquitted of the remaining charges.
The disciplinary action that is the subject of this case—Mutter’s expulsion from
the dental school for brandishing his gun—commenced immediately after the incident.
William Rodriguez, UIC’s Associate Dean of Students, notified Mutter of his expulsion
hearing. At that hearing held late in October 2013, UIC presented a campus police officer
to describe the events. Mutter, represented by counsel, was not permitted to
cross-examine witnesses or testify, though the friend who had witnessed the attack
testified for him. After the hearing UIC expelled Mutter from the dentistry school for
drawing his gun, but it gave him “the opportunity to reinstate in 2015.”
Mutter filed this suit under 42 U.S.C. § 1983, invoking the Second, Fourth, and
Fourteenth Amendments, and state law. He alleged claims against UIC, the UIC Police
Department, the student patrol officers, Associate Dean Rodriguez, and Christopher
Kennedy, the Chairman of the Board of Trustees for the university. He sought
reinstatement to UIC and damages, but he sued the individual defendants in their
official capacities only.
No. 14-2130 Page 3
The district court dismissed Mutter’s complaint as barred in most part by the
Eleventh Amendment. Under Ex parte Young, 209 U.S. 123, 159–60 (1908), the judge
acknowledged, a plaintiff may bring a claim against a state official in his official capacity
for “prospective injunctive relief” to remedy an “ongoing violation of federal law.” But
the judge concluded that Mutter failed to state any plausible ongoing federal violation.
We agree with the judge that Mutter may not sue UIC or its police department.
The Eleventh Amendment “usually bars actions in federal court against a state, state
agencies, or state officials acting in their official capacities.” Peirick v. Indiana
Univ.–Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681, 695 (7th Cir. 2007). It does
not bar suits against state officials if they are sued in their official capacities for
“prospective equitable relief” to remedy “ongoing violations of federal law,” id. (citing
Ex parte Young, 209 U.S. at 159–60), or in their individual capacities for damages under
42 U.S.C. § 1983, see Kroll v. Bd. of Trs. of the Univ. of Ill., 934 F.2d 904, 907 (7th Cir. 1991).
But UIC and its police department are not state officials and thus are not “suable
persons” under the § 1983 statute or under the doctrine of Ex parte Young. See Thomas
v. Illinois, 697 F.3d 612, 613 (7th Cir. 2012); Peirick, 510 F.3d at 694–95; Kaimowitz v. Bd. of
Trs. of the Univ. of Ill., 951 F.2d 765, 767 (7th Cir. 1992). (Mutter incorrectly calls the UIC
Police a division of the Chicago Police Department, but as the appellees have pointed
out, it is a division of the university under Illinois law. See 110 ILL. COMP. STAT. § 305/7(a)
(setting forth University of Illinois trustees’ control over university police department);
see id. § 320/1 (establishing UIC as branch of University of Illinois)).
Mutter also has no permissible claims against the individual defendants—the
student patrol officers, Rodriguez, and Kennedy. Mutter sues them in only their official
capacities, so his only possible remedy against them is prospective relief—the
reinstatement that he seeks—but only if necessary to prevent “ongoing violations of
federal law.” See Peirick, 510 F.3d at 695; Kroll, 934 F.2d at 907. Mutter does not contend
that he faces any ongoing violations of federal law from the student patrol officers, so the
Eleventh Amendment blocks his claims against them. See Peirick, 510 F.3d at 695. He does
argue that Rodriguez and Kennedy are violating federal law by not reinstating him, but
as we are about to explain, that claim is moot.
Mutter’s complaint alleges that UIC expelled him in 2013 but granted him the
“opportunity to reinstate in 2015.” Thus as was true in a similar case, the expulsion was
“only for two years, and the two years are up, so that there is, at least as far as the record
discloses, no obstacle to his being readmitted.” See Osteen v. Henley, 13 F.3d 221, 223 (7th
Cir. 1993). That renders the case moot. See id. Rodriguez and Kennedy are no longer
No. 14-2130 Page 4
denying Mutter’s asserted “right” to apply for readmission because by his own account
he is and has been eligible to reinstate without court involvement. See id.; see also Ozinga
v. Price, 855 F.3d 730, 734–35 (7th Cir. 2017) (noting that for a complaint requesting
prospective relief, when the “complained-of defect” is removed, the case should be
dismissed as moot); Vinson v. Vermilion County, 776 F.3d 924, 929 (7th Cir. 2015) (noting
that a complaint can plead itself “out of court” by including facts that establish an
“impenetrable defense” to claims).
Mutter replies that his case is not moot because he is “on the hook” to the Air
Force for the tuition it paid on his behalf (he received a scholarship as part of his
membership in the reserves). But even if true, that fact does not negate mootness because
as we have already observed, Mutter sues Rodriguez and Kennedy in their official
capacities, so damages are unavailable to him. See Quern v. Jordan, 440 U.S. 332, 338–42
(1979); Kroll, 934 F.2d at 907–08 (explaining the difference between an
individual-capacity suit for damages and official-capacity suit for state officials).
We end with a technical note. In dismissing this suit as barred by the Eleventh
Amendment, the district court treated the dismissal as jurisdictional. But a dismissal
based on that amendment is on the merits and therefore with prejudice. See Indiana Prot.
& Advocacy Servs. v. Indiana Family & Soc. Servs. Admin., 603 F.3d 365, 370 (7th Cir. 2010).
We thus modify the judgment as follows: The damages claims and all claims against UIC
and the UIC Police are dismissed with prejudice, and the remaining claims for
reinstatement are dismissed as moot. As modified, the judgment is
AFFIRMED.