Jimmie E. Small v. ELAINE E. CHAO , Secretary of the Department of Labor

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3166
J IMMIE E. S MALL ,
Plaintiff-Appellant,
v.
E LAINE E. C HAO , Secretary of the
Department of Labor, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02 C 3191—Jeanne E. Scott, Judge.
____________
A RGUED A PRIL 16, 2004—D ECIDED F EBRUARY 14, 2005
____________
Before E ASTERBROOK , R IPPLE , and W OOD , Circuit Judges.
W OOD , Circuit Judge. Jimmie Small’s case arises from
his effort to obtain paralegal training at government
expense. He sued federal, state, and local entities on a
variety of theories, none of which survived the district
court’s scrutiny. That court dismissed his claim against
the Secretary of Labor for lack of subject matter jurisdic-
tion, and it dismissed his claims against the remain-
ing defendants for failure to state a claim (principally
because he could not show that any of the defendants
was his employer). We affirm the district court’s judgment.

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2 No. 03-3166
1 The JTPA has since been superseded by the Workforce Invest-
ment Act of 1998, 29 U.S.C. § 2801, et seq. See 29 U.S.C. § 2940(b).
I
At the time of the events in question, Small lived in a
homeless shelter courtesy of defendant Two Rivers Regional
Council of Public Officials (Two Rivers). In order to remain
in the shelter, Small was required by the Illi-
nois Department of Commerce and Community Affairs
(IDCCA) to attend training and employment seminars.
Assisting him in this endeavor, Two Rivers sent Small
information about educational courses, including informa-
tion about a paralegal training course. This interested
Small. Taking advantage of the Job Training Partner-
ship Act (JTPA) 1 , he applied some time around September
1996 for money (through Carl Sandburg College, which
administered the JTPA courses) to allow him to enroll
in a paralegal course at Gem City College. Unfortunately
for him, Carl Sandburg College denied his application
because paralegal training is a high cost program, the
demand for paralegals is low, and Small could not demon-
strate that there was anyone waiting to hire him after
he completed his training.
Immediately after his application was denied, Small
filed internal complaints of discrimination with Two
Rivers and Carl Sandburg College. Apparently, however,
his complaints were misplaced or put on the back burner, as
it was not until 1999 that IDCCA considered them. At that
time, the West Central Work Force Development Council
(WCWDC) conducted a hearing into Small’s complaints.
Small alleges that the hearing officer threatened him with
reprisals if Small failed to accept an informal resolution of
his claims.
Convinced that the WCWDC and the IDCCA were
violating the law, Small filed a complaint with the U.S.
Department of Labor (Labor), claiming that Carl Sandburg

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No. 03-3166 3
College, Two Rivers, and the IDCCA had discriminated and
retaliated against him because of his status as an indigent
person. Labor investigated and found that there was
insufficient evidence to support Small’s claims. It found
instead that Carl Sandburg College’s stated reasons for
refusing to fund Small’s training—unreasonable cost, low
market demand, and lack of a concrete job prospect—were
legitimate and non-discriminatory. Small appealed Labor’s
finding to this court, which dismissed his attempt at review
for lack of jurisdiction. Small v. Chao, No. 01-3603 (unpub-
lished order, November 14, 2001) (7th Cir. 2001).
In July 2002, Small (proceeding pro se) filed the pres-
ent claims against Labor, Carl Sandburg College, Two
Rivers, the IDCCA, and the WCWDC. Small claimed that
the state and local defendants had discriminated against
him on the basis of sex, age, and religion, and that
Labor had retaliated against him for filing a claim when
it failed to initiate enforcement proceedings based upon
his earlier claim. Small styled his complaint as a Title
VII employment discrimination action. The state and
local defendants moved to dismiss for failure to state a
claim for the straightforward reason that Small had no
employment relationship, nor any potential employment
relationship, with any of them. Labor moved to dismiss for
lack of subject matter jurisdiction, arguing that the order
Small was attacking did not fall within any of the categories
of final orders that are reviewable in the court of appeals
pursuant to 29 U.S.C. § 1578, and that the decision not to
initiate enforcement actions was committed to agency
discretion for purposes of 5 U.S.C. § 701(a)(2). The district
court granted both motions and entered final judgment
against Small.

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4 No. 03-3166
II
A
We consider first the question whether the district
court had jurisdiction over Small’s claims against Labor. We
review de novo the agency’s motion under F ED . R. C IV . P.
12(b)(1) to dismiss the claims against it for lack of subject
matter jurisdiction. Sapperstein v. Hager, 188 F.3d 852, 855
(7th Cir. 1999). Small first filed a complaint with Labor in
2000, claiming, as he does in the present case, that Two
Rivers, Carl Sandburg College, IDCCA, and the WCWDC
had discriminated against him on account of his race, age,
sex, religion, disability, and that they had all retaliated
against him. As we have noted, Labor investigated and
found insufficient evidence to support Small’s claim; Small
appealed; and this court dismissed for lack of jurisdiction.
Small again asks us to review Labor’s decision, although
he has re-cast his complaint as one based on alleged
retaliation—namely, that Labor’s decision not to initiate
proceedings was done to retaliate against him for filing
a claim. Small maintains that his shift in theory has
substantive consequences: rather than presenting a
claim for administrative review, as he did before, he is
now asserting that Labor violated his civil rights. Any relief
Small seeks, however, requires an inquiry into why Labor
chose not to initiate enforcement proceedings on Small’s
behalf. Whether Small couches this inquiry in a claim for
administrative review or in a civil rights complaint, we do
not have jurisdiction to review this type of agency inaction.
See 5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821,
832 (1984); Aircraft Owners Pilots Ass’n v. Hinson, 102 F.3d
1421, 1426-27 (7th Cir. 1996); Arnow v. U.S. Nuclear
Regulatory Comm’n, 868 F.2d 223, 228-36 (7th Cir. 1989)
(dismissing for lack of jurisdiction petition for review of
agency’s refusal to initiate enforcement proceedings). We
note as well that even if Small could overcome the jurisdic-

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No. 03-3166 5
tional hurdle, his claim for money damages and injunctive
relief against Labor would fail because it does not fall into
any acknowledged waiver of the federal government’s
sovereign immunity. See generally Lane v. Peña, 518 U.S.
187, 192 (1996); Irwin v. Dep’t of Veterans Affairs, 498 U.S.
89, 95 (1990).
B
Small’s claims against the remaining defendants are
equally without merit. His complaint states at the out-
set that these claims are based on Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e-5(f) and 2000e-16(c),
and the Age Discrimination in Employment Act, 29 U.S.C.
§§ 626(c)(1) and 633a(c). Consistent with that theory, prior
to filing his suit in district court, Small filed a charge with
the EEOC outlining his claims of discrimination. At the
district court, the defendants filed motions to dismiss
because Small did not, and could not, allege an employment
or prospective employment relationship with any of them.
The district court granted the motions. We review de novo
the district court’s grant of a motion to dismiss for failure
to state a claim. Sanville v. McCaughtry, 266 F.3d 724, 732
(7th Cir. 2001).
While the district court’s dismissal was an appropri-
ate response to Small’s employment-related claims,
Small insists that his complaint can be read to state
a variety of other claims. He is correct. In reading his
complaint, one must also consider the possibility that he
has stated a claim under 42 U.S.C. § 1983. In Small’s
brief on appeal, he urges us to find not only that the
complaint states a claim under § 1983, but also under
42 U.S.C. § 1985; Bivens v. Six Unknown and Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971); 42 U.S.C. § 2000d; and Title IX of the Education
Amendments Act of 1972, 20 U.S.C. §§ 1681-1688 (1994).

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6 No. 03-3166
The law does not require Small to plead any legal theories,
see Thomson v. Washington, 362 F.3d 969, 970-71 (7th Cir.
2004), and particularly since he filed his complaint pro se,
he should not be held to the one incorrect theory he
did name. Instead, we should ask whether any set of
facts consistent with the complaint would give him a
right to recover, no matter what the legal theory. See FED .
R. C IV . P. 8(a); Wynn v. Southward, 251 F.3d 588, 592 (7th
Cir. 2001). We therefore consider whether his case should
go forward on any of these alternate grounds against the
remaining parties.
We start with IDCCA. Small cannot assert a § 1983 action
against IDCCA, for the simple reason that, as part of the
State of Illinois, it is not a “person” within the meaning of
§ 1983. See Will v. Michigan Dep’t of State Police, 491 U.S.
58, 71 (1989); Omosegbon v. Wells, 335 F.3d 668, 672-73
(7th Cir. 2003). Any possible claim under § 1985 is doomed
for the same reason. Id. On the face of Small’s complaint, it
is apparent that any other federal civil rights claims that he
might be able to state against IDCCA are barred by the
applicable two-year statute limitations. See Sanders v.
Venture Stores, Inc., 56 F.3d 771, 775 (7th Cir. 1995); 735
ILCS 5/13-202 (2002). (Although the statute of limitations
is ordinarily an affirmative defense that must be pleaded
under F ED . R. C IV . P. 8(c), a district court may dismiss
under Rule 12(b)(6) something that is indisputably time-
barred, as this is. See Perry v. Sullivan, 207 F.3d 379, 382
(7th Cir. 2000).) The last act that IDCCA took against
Small occurred on October 19, 1999, obviously more
than two years before July 2002 when Small filed his
complaint. Small finally suggests a Bivens action, but
that theory applies only to federal actors, and so is inap-
plicable to Small’s claims against the state defendants. See
Bivens, 403 U.S. 388.
Left are Small’s claims against Two Rivers, Carl
Sandburg College, and the WCWDC. Small raises these

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No. 03-3166 7
claims only against the organizations—not any individual
actors. To state a claim against a municipal or local entity,
“a complaint must allege that a constitutional depriva-
tion was caused by an official policy or custom.” Arlotta
v. Bradley Center, 349 F.3d 517, 521-22 (7th Cir. 2003).
A government entity is liable under § 1983 only when
an official policy or custom inflicts the injury of which
the plaintiff complains. Monell v. Dep’t of Soc. Serv. of
City of New York, 436 U.S. 658, 694 (1978); Henry v. Farmer
City State Bank, 808 F.2d 1228, 1237 (7th Cir. 1986).
Small’s complaint fails to allege that any official policy
caused his injuries; he says only that various individual
actors deprived him of his rights. Therefore, under Monell,
his claims against all three entities must fail. Monell also
bars any § 1985 claims against these defendants.
As with the state, any other possible federal civil
rights claims against these defendants are barred by the
statute of limitations. Sanders, 56 F.3d at 775. Bivens is as
inapplicable to local and municipal actors as it is to
the state. Nor can he succeed on a potential Title IX
claim. First, it would be barred by the statute of limitations.
In addition, only Carl Sandburg College is an educational
institution within the meaning of Title IX, but Small does
not claim that Carl Sandburg College discriminated against
him as a student, or that he was attempting to become a
student at Carl Sandburg College. Lastly, the district court
declined to exercise its supplemental jurisdiction over
whatever state law claims Small asserted or attempted to
assert. Small did not appeal from that dismissal.
III
Reading Small’s complaint as liberally as possible, we still
must conclude that Small has not stated a claim against
any of the state or local defendants. Moreover, as we have

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8 No. 03-3166
explained, the district court had no jurisdiction over his
claim against the federal defendant. We therefore AFFIRM
the judgment of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-14-05

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