Barry J. Smith v. UNITED STATES OF AMERICA and STATE OF WISCONSIN

*
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. A PP. P. 34(a); CIR. R. 34(f).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 30, 2008 *
Decided November 6, 2008
Before
WILLIAM J. BAUER, Circuit Judge
JOHN L. COFFEY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 08‐2205
BARRY J. SMITH,
Plaintiff‐Appellant,
v.
UNITED STATES OF AMERICA and
STATE OF WISCONSIN,
Defendants‐Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 08‐C‐262
Rudolph T. Randa,
Chief 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
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
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐2205 Page 2
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 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, 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.

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