Case: 1:19-cv-07797 Document #: 30 Filed: 06/23/20 Page 1 of 18 PageID #:197
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Case No. 19-cv-7797
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`Judge Mary M. Rowland
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`BROTHELLA QUICK, et al.,
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`Plaintiffs,
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`v.
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`ILLINOIS DEPARTMENT OF
`FINANCIAL AND PROFESSIONAL
`REGULATION, et al.,
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`Defendants.
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`MEMORANDUM OPINION & ORDER
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`Plaintiffs seek a license to open a medical marijuana dispensary. Their
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`application for a license was denied and they brought suit against the Illinois
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`Department of Financial and Professional Regulation (“IDFPR”) and Brett Bender,
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`the head of the medical cannabis program for IDFPR. Before the Court is Defendants’
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`motion to dismiss. (Dkt. 8). For the reasons stated below, the motion [8] is granted as
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`to Defendant IDFPR and denied as to Defendant Bender.
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`BACKGROUND
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`Plaintiffs Brothella Quick, Crystal Anderson, and Maria Davis are three
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`entrepreneurs who applied for dispensary licenses under Illinois’ Compassionate Use
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`of Medical Cannabis Act, 410 ILCS 130/1 et seq. (the “Act”). The individual Plaintiffs
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`formed companies to hold the dispensary licenses: BQ Enterprises Inc., for Ms. Quick,
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`and Crystal Clear Compassionate Care Inc., for Ms. Anderson and Ms. Davis.
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`Plaintiffs’ briefing notes the relevant experience in the healthcare industry for each
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`1
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`Plaintiff. Each individual Plaintiff identifies as an African American woman, and
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`Plaintiffs assert that African American women were, as a group, “entirely excluded
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`from program [sic] when IDFPR awarded the licenses.” (Dkt. 15, 3).
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`According to Plaintiffs, the Act authorized up to 60 licenses for dispensaries,
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`and the Act obligated IDFPR to issue as many licenses as there are qualified
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`applicants. 410 ILCS 130/115(a). The Act states:
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`The [IDFPR] may not issue less than the 60 registrations if there are
`qualified applicants who have applied with the [IDFPR]. The
`organizations shall be geographically dispersed throughout the State to
`allow all registered qualifying patients reasonable proximity and access
`to a dispensing organization.
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`410 ILCS 130/155(a). The Act does not specify the process for geographically
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`distributing dispensary locations but authorized IDFPR to adopt rules and
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`procedures for applicants and for geographic diversity.
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`IDFPR created a plan to distribute 60 licenses among 43 districts. 68 Ill. Adm.
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`Code § 1290.20. More populous districts received multiple licenses, while other
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`districts received only one. Id. Pursuant to the newly promulgated rules, IDFPR
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`required applicants to pick one of these districts for each application. 68 Ill. Adm.
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`Code § 1290.50(a). Applicants were also required to prove that they controlled
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`compliant property in the specified district. 68 Ill. Adm. Code § 1290.60(a) (16-17, 19).
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`Defendants note that, pursuant to their rules, applicants could submit one
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`application per district and could submit separate applications for up to five districts.
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`68 Ill. Adm. Code § 1290.40(a)(3), (5), (6). If more than one separate application was
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`submitted, the applicant was required to pay the application fee for each submission
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`2
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`and comply with all other requirements for each submission. Id. Once an applicant
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`was selected to receive a license, they were further required to complete a registration
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`process. 68 Ill. Adm. Code § 1290.100. IDFPR rules allowed for a registered dispenser
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`to relocate to another location within the same district, if IDFRP approved the move.
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`68 Ill. Adm. Code § 1290.140(a).1
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`Applicants received a license in a specified district in one of two instances.
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`First, if the number of qualified applicants did not exceed the number of allocated
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`licenses, then each qualified applicant would receive a license. (Dkt 5 ¶¶ 28-29); 68
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`Ill. Adm. Code § 1290.40(a)(11). For those districts with more qualified applicants
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`than licenses, the IDFPR would hold a competition based on a points-scoring process.
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`Id.
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`Plaintiffs allege that they timely completed their applications before the
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`September 22, 2014 deadline, and their applications complied with all of the Act’s
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`requirements. (Dkt. 5 ¶ 36). IDFPR completed its scoring process and announced
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`licenses in 2016. Plaintiffs did not receive a license. (Id. at ¶¶ 5-6). Plaintiffs first
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`allege that the district and scoring process “proved problematic.” (Dkt. 15, 4). They
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`claim that there were many diverse applicants like Plaintiffs who did not receive a
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`license: “It is a matter of public record that IDFPR’s process resulted in almost all of
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`the licenses going to companies majority-owned by white men.” (Id.; Dkt. 5, ¶ 7).
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`Second, Plaintiffs claim that IDFPR did not award all 60 licenses; it only issued
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`55. (Dkt. 5, ¶ 15). In four of the districts, no qualified applicants submitted
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`1 IDFPR amended this rule in 2019 to allow dispensers who had not yet registered to seek relocation.
`(Dkt. 9, 7).
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`3
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`information confirming control of compliant property, and for one of the districts,
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`there were fewer qualified applicants than allotted licenses. (Id.). Plaintiffs allege
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`that IDFPR’s failure to issue at least 57 licenses is a violation of the Act, because
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`there were at least two additional qualified applicants, the Plaintiffs, beyond the 55
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`that the IDFPR selected. (Dkt. 5 ¶ 16). IDFPR rules provide for such a scenario,
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`stating: “If the Division determines that a District has no qualified applicants or
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`fewer qualified applicants than authorized registrations, the Division shall post a
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`notification on the Division’s website detailing the dates of the next open application
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`period.” 68 Ill. Adm. Code § 1290.4(a)(13). Based on this rule, Plaintiffs waited for
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`IDFPR to announce a new application period. As of the date of Plaintiffs’ brief, IDFPR
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`had not yet posted a notification for how it intended to award the additional five
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`licenses.
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`In 2019, Illinois passed a law giving special rights to the holders of the 55
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`medical marijuana licenses. Each license holder would automatically receive two
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`additional licenses; one to sell recreational cannabis at the same location as the
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`medical dispensary, and one to open another recreational cannabis dispensary at a
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`site of their choosing. 410 ILCS 705/15-15, 15-20. The license holders had 60 days to
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`complete the necessary paperwork to receive this benefit. Afraid of missing this
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`additional benefit, both BQ Enterprises and Crystal Clear obtained property in a
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`district where there were no qualifying applications during the 2014 application
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`period. Plaintiffs then filed paperwork to change the address of their proposed
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`dispensaries on their 2014 application to new properties situated in one of the five
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`4
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`districts in which a dispensary has not been licensed. On November 6, 2019, IDFPR
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`issued a letter refusing to allow Plaintiffs to change the address on the grounds that
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`there was no open application period at that time. All parties acknowledge that this
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`letter was likely written by Defendant Bender. (Dkt. 16, 10).
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`Plaintiffs claim that IDFPR treated Plaintiffs differently than (at least) five
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`other applications who had received licenses.2 According to Plaintiffs, “[a]t least five
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`of those [55 original winning applications] became eligible for a dispensary license
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`only because IDFPR allowed them to change the address proposed dispensary
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`location.” (Dkt. 5 ¶ 7). Plaintiffs claim that at least three companies were allowed to
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`change to a new address within the district in which they applied, and two were
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`allowed to change to new districts. (Id. at ¶¶ 31-35). Notably, Plaintiffs claim that
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`IDFPR allowed these changes after the deadline for submission of the applications.
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`(Id.). The crux of Plaintiffs’ allegations is that IDFPR Plaintiffs are entitled to a
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`license because IDFPR was required to issue all 60 licenses.
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`Defendants contest whether Plaintiffs were indeed qualified applicants
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`entitled to a license, claiming that Plaintiffs did not comply with IDFPR’s stated
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`rules. IDFPR maintains that its rules did not permit Plaintiffs to change locations
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`without filing another application during an open application period. As noted above,
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`there has not been an open application period since the original 2014 period. And for
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`the 2014 application period, Plaintiffs did not file an application in the new district
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`2 Plaintiffs’ Complaint and brief often sounds in a denial of equal protection. In the joint status report
`Plaintiffs indicate they intend to file a motion to amend their Complaint to add additional Plaintiffs
`and an equal protection claim. (Dkt. 26, 2). Without objection, the Court grants Plaintiffs leave to
`amend their Complaint.
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`5
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`and did not pay the separate application fee. (Dkt. 16, 9) (“They did not apply for, or
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`pay the application fee for, the districts they are now seeking years later, and there
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`has been no subsequent active application round at any time relevant to the
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`complaint.”). IDFPR additionally notes that the applicants identified by Plaintiffs
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`who were permitted to change locations were in the process of registering their
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`licenses. (Dkt. 9, 7). The IDFPR rules concerning license holders allowed relocation
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`during the registration process. Plaintiffs, on the other hand, did not yet have a
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`license and thus could not seek relocation under those rules.
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`Plaintiffs sue seeking administrative review of IDFPR’s November 2019
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`decision in Count I and bring a § 1983 procedural due process claim3 in Count II.
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`LEGAL STANDARD
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`A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to
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`state claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6); Gen. Elec.
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`Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). In ruling
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`on a motion to dismiss, the Court accepts as true all well-pleaded facts in the
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`Plaintiff’s complaint and must “construe the complaint in the ‘light most favorable to
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`the’ plaintiff.” Zahn v. N. Am. Power & Gas, LLC, 847 F.3d 875, 877 (7th Cir. 2017)
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`(quoting Bell v. City of Chi., 835 F.3d 736, 738 (7th Cir. 2016)). However, the Court
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`is not “obliged to accept as true legal conclusions or unsupported conclusions of fact.”
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`Hickey v. O’Bannon, 287 F.3d 656, 658 (7th Cir. 2002).
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`3 The Court assumes Plaintiffs are challenging a failure to provide procedural due process as opposed
`to substantive due process.
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`6
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`“To survive a motion to dismiss, a complaint must contain sufficient factual
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`allegations to state a claim for relief that is plausible on its face.” Ill. Bible Coll. Ass’n
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`v. Anderson, 870 F.3d 631, 636 (7th Cir. 2017), as amended (Oct. 5, 2017), cert denied
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`sub nom. Ill. Bible Coll. Ass’n v. Cross, 138 S. Ct. 1021 (2018). “A claim has facial
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`plausibility when the plaintiff pleads factual content that allows the court to draw
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`the reasonable inference that the defendant is liable for the misconduct alleged.”
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
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`544, 556 (2007)). “While a plaintiff need not plead ‘detailed factual allegations’ to
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`survive a motion to dismiss, she still must provide more than mere ‘labels and
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`conclusions or a formulaic recitation of the elements of a cause of action’ for her
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`complaint to be considered adequate….” Bell v. City of Chi., 835 F.3d 736, 738 (7th
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`Cir. 2016) (quoting Iqbal, 556 U.S. at 678).
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`DISCUSSION
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`Defendants moved to dismiss on several grounds: sovereign immunity for
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`IDFPR, qualified immunity for Bender, lack of a property interest in the license, and
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`that administrative review is not available. The Court shall address each argument
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`in turn.
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`1. Property Right
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`Defendants argue that Plaintiffs do not have a property right in a license.
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`“[T]he Fourteenth Amendment of the Constitution of the United States… provide[s]
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`that a person shall not be deprived of life, liberty, or property without due process of
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`law.” Dargis v. Sheahan, 526 F.3d 981, 989 (7th Cir. 2009) (citations omitted); see also
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`7
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`Residences at Riverbend Condominium Assoc. v. City of Chi., 5 F.Supp.3d 982, 985-
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`86 (N.D. Ill. 2013). “To determine whether due process requirements apply in the first
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`place” courts “must look to see if the interest is within the Fourteenth Amendment’s
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`protection of liberty and property.” Board of Regents of State Colleges v. Roth, 408
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`U.S. 564, 570-71, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Simply put, “the threshold
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`question in any due process challenge is whether a protected property or liberty
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`interest actually exists.” Citizens Health Corp v. Sebelius, 725 F.3d 687, 694 (7th Cir.
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`2013); see also Jackson v. City of Chicago, 363 Ill. Dec. 351, 368 975 N.Ed.2d 153, 170
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`(1st Dist. 2012) (“The threshold question in analyzing whether a procedure violates
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`due process is ‘whether a constitutionally protected liberty or property interest is at
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`stake.’”) (citation omitted).
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`Plaintiffs claim that Defendants violated their protected property interest in a
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`license. “A protected property interest is a legitimate claim of entitlement—not
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`defined by the Constitution—but ‘by existing rules or understandings that stem from
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`an independent source such as state law.’” Residences at Riverbend, 5 F.Supp.3d at
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`986 (citing Roth, 408 U.S. at 577); see also Chicago Teachers Union, Local No. 1 v.
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`Board of Educ. of City of Chi., 357 Ill.Dec. 520, 525, 963 N.E.2d. 918 (Ill. 2012) (“Of
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`course, the federal Constitution does not create property interests.”). “To maintain a
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`claim of property over a government-issued benefit, such as a license or permit, a
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`plaintiff must show she has ‘a legitimate claim of entitlement to it’ rather than a
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`‘unilateral expectation to it.’” Dyson v. City of Calumet City, 306 F.Supp.3d 1028, 1041
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`(N.D. Ill. 2018) (citing Bell v. City of Country Club Hills, 841 F.3d 713, 717 (7th Cir.
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`8
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`2016). More specifically, “where state law gives people a benefit and creates a system
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`of nondiscretionary rules governing revocation or renewal of that benefit, the
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`recipients have a secure and durable property right, a legitimate claim of
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`entitlement.” Chicago United Indus., Ltd. v. City of Chicago, 669 F.3d 847, 851 (7th
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`Cir. 2012); see also Khan v. Bland, 630 F.3d 519, 527 (7th Cir. 2010) (“A property
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`interest of constitutional magnitude exists only when the state’s discretion is ‘clearly
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`limited’ such that the plaintiff cannot be denied the interest ‘unless specific conditions
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`are met.’”).
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`Plaintiffs allege that they have a property interest in a license because they
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`are qualified applicants, they have compliant property in a district with an available
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`license, and they are the only party who meets that criteria for a district with an
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`available license. They argue that the Act’s mandatory language—IDFPR “may not
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`issue less than 60 registrations if there are qualified applicants”—is the type of
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`nondiscretionary system that creates a valid entitlement. See Kentucky Dep’t of Corr.
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`v. Thompson, 490 U.S. 454, 463, 109 S.Ct. 1904, 1910 (1989) (“the use of ‘explicitly
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`mandatory language,’ in connection with the establishment of ‘specified substantive
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`predicates’ to limit discretion, forces a conclusion that the State has created a liberty
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`interest”); Kim Contsr. Co v. Bd of Trustees of Vill. of Mundelein, 14 F.3d 1243 (7th
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`Cir. 1994) (holding that Thompson’s principles apply to property interests).
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`Defendants disagree, arguing that Plaintiffs ignore the rules promulgated under the
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`Act. Those rules require applicants to apply to separate districts, pay for each
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`9
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`application, and permit IDFPR to use a competitive scoring system when more than
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`one applicant applies for a license. 68 Ill. Adm. Code § 1290.40(a)(6).
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`The Court is persuaded that Plaintiffs have alleged a property interest in the
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`license. Defendants’ arguments are better suited for summary judgment. Accepting
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`Plaintiffs’ allegations as true and construing the facts in the light most favorable to
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`Plaintiffs as we must at this stage, Plaintiffs have sufficiently alleged a
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`nondiscretionary system providing for a valid entitlement. They have further alleged
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`that they have met all predicate requirements for a license: they hold compliant
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`property, they are qualified applicants, and there are no other qualified applicants
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`for their requested districts. At this early stage, Plaintiffs’ claim may proceed.
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`To state a procedural due process claim, plaintiffs must allege (1) the
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`deprivation of a protected interest, and (2) insufficient procedural protections in
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`effectuating that deprivation. Zumo v. City of Chi., 345 F.Supp.3d 995, 1005-06 (N.D.
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`Ill. 2018) (citing Michalowicz v. Vill. of Bedford Park, 528 F.3d 530, 534 (7th Cir.
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`2008)). Plaintiffs have alleged a protected property interest and that Defendants
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`denied them the protected interest in refusing to grant them a license and refusing
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`to allow them to change locations. They have further alleged insufficient procedural
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`protections and that IDFPR has refused to open a new application period for over five
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`years.
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`2. Sovereign Immunity
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`Plaintiffs’ Complaint brings two counts against both defendants, IDFPR and
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`Bender. Count I is for state law administrative review and Count II is for a violation
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`10
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`of due process under 42 U.S.C. § 1983. Both counts seek only injunctive relief.
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`Defendant IDFPR argues that it is immune from suit under the Eleventh
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`Amendment.
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`a. IDFPR
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`In general, a state is immune from suits brought by individuals in federal
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`court. Ameritech Corp. v. McCann, 297 F.3d 582, 585 (7th Cir. 2002) (citing Edelman
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`v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.E.2d 662 (1974)). However, a
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`state’s sovereign immunity is not absolute. Id. “In some cases, a suit against a state
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`or its officials may proceed despite the Eleventh Amendment’s proscription.” Id. For
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`example, a “state may waive the protections of the amendment and consent to suit in
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`federal court, or Congress may use enforcement powers under the fourteenth
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`amendment to abrogate the states’ eleventh amendment immunity.” MSA Realty
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`Corp. v. Illinois, 990 F.2d 288, 291 (7th Cir. 1993).
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`Defendants argue that the § 1983 claim in Count II cannot be brought against
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`IDFPR. (Dkt. 9, 10; Dkt. 16, 1). Plaintiffs fail to respond. Count II requests relief
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`under § 1983. Section 1983 authorizes suits against a “person” who acts under color
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`of state law and deprives another person of his or her rights. 42 U.S.C. § 1983. “[A]s
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`a state agency protected by Eleventh Amendment sovereign immunity, the [IDFPR]
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`is not a ‘person’ who can deprive a party of its rights, privileges or immunities under
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`§ 1983.” Illinois Dunesland Preservation Society v. Illinois Dept. of Natural Resources,
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`461 F.Supp.2d 666, 670 (N.D. Ill. 2006) (citing Will v. Michigan Dept. of State Police,
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`491 U.S. 58, 65-66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (“We hold that neither a
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`11
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`State nor its officials acting in their official capacities are ‘persons’ under § 1983.”)).
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`Accordingly, Plaintiffs cannot bring a § 1983 claim against IDFPR, and IDFPR must
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`be dismissed from Count II, with prejudice. Dunesland, 462 F.Supp.2d at 671
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`(dismissing state agency from § 1983 suit because “there is no support for the
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`proposition that claims for injunctive relief may be brought under § 1983 against
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`state agencies”).
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`Whether IDFPR can be named in Count I, a claim brought under the
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`Administrative Review Law, is a bit trickier. Plaintiffs argue that they may bring a
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`claim for injunctive relief against a state agency under administrative review.
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`(Dkt.15, 12). Plaintiffs claim that there is “no Eleventh Amendment impediment to
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`federal courts issuing [injunctive] relief against a state agency,” and cite to Ex Parte
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`Young and Kroll in support. (Id. at 13). Defendants correctly point out that these
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`cases involve official capacity suits against state officials, not state agencies. The
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`Supreme Court has clarified that the Young “exception is narrow: It applies only to
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`prospective relief, does not permit judgments against state officers declaring that
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`they violated federal law in the past, and has no application in suits against the states
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`and their agencies, which are barred regardless of the relief sought.” Puerto Rico
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`Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684,
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`121 L.Ed.2d 604 (1993) (emphasis added) (internal citations omitted). Indeed, other
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`courts to have addressed the issue hold that individuals may not sue state agencies
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`for injunctive relief in federal court. See, e.g., Santiago v. New York State Dep’t of
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`Correctional Services, 945 F.2d 25, 32 (2d Cir. 1991) (dismissing state agency from
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`12
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`Case: 1:19-cv-07797 Document #: 30 Filed: 06/23/20 Page 13 of 18 PageID #:209
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`claim for injunction relying on Pennhurst State School and Hospital v. Halderman,
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`465 U.S. 89, 102 (1984) “a plaintiff seeking prospective relief from the state must
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`name as defendant a state official rather than the state or a state agency directly,
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`even though in reality the suit is against the state and any funds required to be
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`expended by an award of prospective relief will come from the state's treasury”);
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`Moore v. Louisiana Bd. of Elementary & Secondary Educ., 743 F.3d 959, 963 (5th Cir.
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`2014) (dismissing two state agencies from suit for injunctive relief relying on
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`Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996) and Puerto Rico Aqueduct &
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`Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) finding “[f]ederal courts
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`are without jurisdiction over suits against a state, a state agency, or a state official
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`in his official capacity unless that state has waived its sovereign immunity or
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`Congress has clearly abrogated it. … Despite this bar, a federal court may enjoin a
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`state official in his official capacity from taking future actions in furtherance of a
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`state law that offends federal law or the federal Constitution. … Only state officials,
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`not state agencies, may be enjoined.); and General Motors Corp. v. California State
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`Bd. of Equalization, 815 F.2d 1305, 1309 (9th Cir. 1987) (“The eleventh amendment
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`does not bar actions for injunctive relief against individual state officials, but it does
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`bar such action against the state or its agencies, absent their consent.”) (citing
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`Alabama v. Pugh, 438 U.S. 781, 57 L.Ed.2d 1114, 98 S.Ct. 3057 (per curiam)).
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`Plaintiffs correctly assert that the court in Petroff Trucking Co. v. Illinois Dep't
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`of Transp., No. CIV. 11-241-GPM, 2011 WL 6026108, at *4 (S.D. Ill. Dec. 2, 2011) held
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`that “the Eleventh Amendment does not preclude a suit for prospective relief against
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`13
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`a state, its agencies ….” With respect, the cases relied on by the Petroff court do not
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`support that proposition. Edelman v. Jordan, 415 U.S. 651, 663–64, 94 S.Ct. 1347, 39
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`L.Ed.2d 662 (1974)(lower court erred in holding Young allowed retroactive payments
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`characterized as “equitable restitution”); Ex parte Young, 209 U.S. 123, 159–60, 28
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`S.Ct. 441, 52 L.Ed. 714 (1908) (the exception to Eleventh Amendment immunity
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`carved out in Ex Parte Young is that state officials may be sued in their official
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`capacity for injunctive relief against violations of federal law; it does not allow for
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`suits against the state); Ameritech Corp. v. McCann, 297 F.3d 582, 585–86 (7th Cir.
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`2002) (suit only brought against the state official, not against the state); Luder v.
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`Endicott, 253 F.3d 1020, 1024–25 (7th Cir.2001) (injunctive relief under the FLSA
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`against the state not at issue, the court stated: “[t]he Eleventh Amendment is not
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`limited to damages judgments. It applies to injunctive suits, as well, against the
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`states.”).
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`In Benjamin v. Illinois Dep't of Fin. & Prof'l Regulation, 837 F. Supp. 2d 840,
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`852 (N.D. Ill. 2011), the court also held, that “[b]ecause the Eleventh Amendment
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`does not foreclose claims for injunctive relief (and plaintiff requests injunctive relief
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`here), plaintiff's Ethics Act claims based on plaintiff's request for injunctive relief
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`survive against IDFPR …” But again, with respect, there was no further analysis.
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`Contrary to Plaintiffs’ assertion, it is irrelevant whether administrative review
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`is equitable in nature given that the Ex Parte Young exception does not apply to state
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`agencies. Plaintiffs cannot seek an injunction against IDFPR in federal court whether
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`Case: 1:19-cv-07797 Document #: 30 Filed: 06/23/20 Page 15 of 18 PageID #:211
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`under § 1983 or administrative review. Accordingly, IDFPR is dismissed from this
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`suit.
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`b. Bender
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` A suit against state officials may proceed in the limited circumstances
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`identified by Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). “Under
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`Young, state officials may be sued in their official capacities for injunctive relief,
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`although they may not be sued for money damages.” MSA Realty, 990 F.2d at 291;
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`Dean Foods Co. v. Brancel, 187 F.3d 609, 613 (7th Cir. 1999) (“Under the longstanding
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`doctrine of Ex Parte Young, a private party can sue a state officer in his or her official
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`capacity to enjoin prospective action that would violate federal law.”). “In determining
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`whether the doctrine of Ex Parte Young avoids an Eleventh Amendment bar to suit,
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`a court need only conduct a straightforward inquiry into whether [the] complaint
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`alleges an ongoing violation of federal law and seeks relief properly characterized as
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`prospective.” Verizon Maryland, Inc. v. Public Service Comm. of Maryland, 535 U.S.
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`635, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) (citing Idaho v. Coeur d’Alene Tribe of
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`Idaho, 521 U.S. 261, 267-69, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997)).
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`Defendant Bender fits squarely within the Young exception. Bender is a state
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`official sued in his official capacity. (Dkt. 15, 15). Plaintiffs clarified that they do not
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`seek any damages from Bender in his official capacity, only injunctive relief. (Id.).
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`That Plaintiffs’ complaint alleges an ongoing violation of federal law—Defendants’
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`violation of due process—is beyond dispute. Plaintiffs’ requested relief is “properly
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`characterized as prospective.” Ameritech Corp., 297 F.3d at 587. Count I seeks a
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`Case: 1:19-cv-07797 Document #: 30 Filed: 06/23/20 Page 16 of 18 PageID #:212
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`declaration that Bender improperly refused to award Plaintiffs a license, and Count
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`II seeks an injunction prohibiting Bender from awarding any other applicant a license
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`for the Plaintiffs’ requested districts. Count I and Count II are thus properly
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`characterized as prospective and properly brought against Defendant Bender.
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`3. Qualified Immunity
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`Defendants next argue that Bender is entitled to qualified immunity. Both
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`parties agree that Bender would only be entitled to qualified immunity for damages
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`in his individual capacity, not for claims of official capacity injunctive or declaratory
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`relief. It is unclear whether Plaintiffs intend to sue Bender both in his official capacity
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`and in his individual capacity. Regardless, at this stage in the litigation, the Court
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`declines to find that qualified immunity warrants dismissal.
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`Qualified immunity protects officials from civil liability stemming from
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`discretionary functions, but only if their conduct does not violate clearly established
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`statutory or constitutional rights of which a reasonable person would have known.
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`Siliven v. Ind. Dep’t of Child. Servs., 635 F.3d 921, 925-26 (7th Cir. 2011) (citing
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`Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172, L.Ed.2d 565 (2009)). The
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`Seventh Circuit has noted that “a complaint is generally not dismissed under Rule
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`12(b)(6) on qualified immunity grounds.” Alvarado v. Litscher, 267 F.3d 648, 651 (7th
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`Cir. 2001) (noting that immunity defense depends on facts that plaintiffs need not
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`plead in anticipation of the defense).
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`To survive a motion to dismiss in the face of a qualified immunity defense, the
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`Complaint must plausibly allege that Bender violated Plaintiffs clearly established
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`Case: 1:19-cv-07797 Document #: 30 Filed: 06/23/20 Page 17 of 18 PageID #:213
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`rights by denying them a license. Again, the Court is not only required to take the
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`facts alleged in the Complaint as true, but also to draw all reasonable inferences in
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`Plaintiffs’ favor. The Court has already determined that Plaintiffs have alleged a
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`deprivation of a constitutional right. Accordingly, the Court finds that Plaintiffs have
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`satisfied this standard. Because the Court cannot find at this stage that Bender’s
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`conduct was protected by the doctrine of qualified immunity, the motion to dismiss
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`on that basis is denied.
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`4. Administrative Review
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`
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`Finally, Defendants argue that the administrative review claim in Count I is
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`not available. Generally, administrative review is only available when the relevant
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`section of a statute expressly adopts the Administrative Review Law for that
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`particular section. See Bd. of Educ. of Woodland Community Consol. School Dist. 10
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`v. Ill. State Charter School Comm’n, 2016 IL App (1st) 151372, ¶ 38. Defendants claim
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`that the Act only allows for administrative review of Section 130, which concerns
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`disciplinary actions for those who hold a license. (Dkt. 9, 12). Plaintiffs counter that
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`the Section 130 provides for administrative review of much more. Section 130 states:
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`“[IDFPR] may revoke, suspend, place on probation, reprimand, refuse to issue or
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`renew, or take any other disciplinary or non-disciplinary action as [IDFPR] may deem
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`proper…. All final administrative decisions of [IDFPR] are subject to judicial review
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`under the Administrative Review Law and its rules.” 410 ILCS 130/130(n) (emphasis
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`added).
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`Case: 1:19-cv-07797 Document #: 30 Filed: 06/23/20 Page 18 of 18 PageID #:214
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`
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`In City of Chicago v. Int’ll Coll. of Surgeons, 522 U.S. 156, 164 (1997), the
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`Supreme Court addressed whether a federal court had jurisdiction over claims arising
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`under Illinois’ Administrative Review Law. The Court determined that federal courts
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`have supplemental jurisdiction over administrative review claims when the agency’s
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`action gives rise to constitutional claims over which there is original jurisdiction. See
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`Petroff Truck Co. v. Ill. Dep’t of Transp., No. CIV 11-241-GPM, 2011 WL 6026108, at
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`*1 (S.D. Ill. Dec. 2, 2011) (finding supplemental jurisdiction over administrative
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`review claim). This is precisely the situation here.
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`The Court is accordingly persuaded that administrative review is available in
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`this case. Bender’s motion to dismiss on this basis is denied.
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`CONCLUSION
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`For the reasons stated herein, Defendants motion to dismiss [8] is granted in
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`part and denied in part. Defendant IDFPR is dismissed from this suit, Bender’s
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` E
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` N T E R:
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`MARY M. ROWLAND
`United States District Judge
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`18
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`motion to dismiss is denied.
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`Dated: June 23, 2020
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