Smith, Barry v. United States

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 October 30, 2008* Decided November 6, 2008 Amended November 13, 2008

Before

WILLIAM J. BAUER, Circuit Judge

JOHN L. COFFEY, Circuit Judge

MICHAEL S. KANNE, Circuit Judge No. 08‐2205

BARRY J. SMITH, Appeal from the United States District Plaintiff‐Appellant, Court for the Eastern District of Wisconsin. v. No. 08‐C‐262 UNITED STATES OF AMERICA and STATE OF WISCONSIN, Rudolph T. Randa, Defendants‐Appellees. Judge.

O R D E R

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

* 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).

No. 08‐2205 Page 2

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); Rowe 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 (1989); Porco v. Trs. of Ind. 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 (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 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, No. 07‐1850, 2008 WL 4182649, at *4 n.5 (7th Cir., Sept. 12, 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. Vaudenberg, 95 F.3d 580, 583‐84 (7th Cir. 1996).

Accordingly, the judgment of the district court is

AFFIRMED.