# Quick v. Illinois Department of Financial and Professional Regulation

> District Court, N.D. Illinois · June 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10142969

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** June 23, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10142969

## How later opinions describe it (automated extraction)

- holding that Thompson’s principles apply to property interests

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

BROTHELLA QUICK, et al.,

Plaintiffs,
Case No. 19-cv-7797
v.
Judge Mary M. Rowland
ILLINOIS DEPARTMENT OF
FINANCIAL AND PROFESSIONAL
REGULATION, et al.,

Defendants.

MEMORANDUM OPINION & ORDER
Plaintiffs seek a license to open a medical marijuana dispensary. Their
application for a license was denied and they brought suit against the Illinois
Department of Financial and Professional Regulation (“IDFPR”) and Brett Bender,
the head of the medical cannabis program for IDFPR. Before the Court is Defendants’
motion to dismiss. (Dkt. 8). For the reasons stated below, the motion [8] is granted as
to Defendant IDFPR and denied as to Defendant Bender.
BACKGROUND
Plaintiffs Brothella Quick, Crystal Anderson, and Maria Davis are three
entrepreneurs who applied for dispensary licenses under Illinois’ Compassionate Use
of Medical Cannabis Act, 410 ILCS 130/1 et seq. (the “Act”). The individual Plaintiffs
formed companies to hold the dispensary licenses: BQ Enterprises Inc., for Ms. Quick,
and Crystal Clear Compassionate Care Inc., for Ms. Anderson and Ms. Davis.
Plaintiffs’ briefing notes the relevant experience in the healthcare industry for each
Plaintiff. Each individual Plaintiff identifies as an African American woman, and
Plaintiffs assert that African American women were, as a group, “entirely excluded
from program [sic] when IDFPR awarded the licenses.” (Dkt. 15, 3).

According to Plaintiffs, the Act authorized up to 60 licenses for dispensaries,
and the Act obligated IDFPR to issue as many licenses as there are qualified
applicants. 410 ILCS 130/115(a). The Act states:
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.

410 ILCS 130/155(a). The Act does not specify the process for geographically
distributing dispensary locations but authorized IDFPR to adopt rules and
procedures for applicants and for geographic diversity.
IDFPR created a plan to distribute 60 licenses among 43 districts. 68 Ill. Adm.
Code § 1290.20. More populous districts received multiple licenses, while other
districts received only one. Id. Pursuant to the newly promulgated rules, IDFPR
required applicants to pick one of these districts for each application. 68 Ill. Adm.
Code § 1290.50(a). Applicants were also required to prove that they controlled
compliant property in the specified district. 68 Ill. Adm. Code § 1290.60(a) (16-17, 19).
Defendants note that, pursuant to their rules, applicants could submit one
application per district and could submit separate applications for up to five districts.
68 Ill. Adm. Code § 1290.40(a)(3), (5), (6). If more than one separate application was
submitted, the applicant was required to pay the application fee for each submission
and comply with all other requirements for each submission. Id. Once an applicant
was selected to receive a license, they were further required to complete a registration
process. 68 Ill. Adm. Code § 1290.100. IDFPR rules allowed for a registered dispenser

to relocate to another location within the same district, if IDFRP approved the move.
68 Ill. Adm. Code § 1290.140(a).1
Applicants received a license in a specified district in one of two instances.
First, if the number of qualified applicants did not exceed the number of allocated
licenses, then each qualified applicant would receive a license. (Dkt 5 ¶¶ 28-29); 68
Ill. Adm. Code § 1290.40(a)(11). For those districts with more qualified applicants

than licenses, the IDFPR would hold a competition based on a points-scoring process.
Id.
Plaintiffs allege that they timely completed their applications before the
September 22, 2014 deadline, and their applications complied with all of the Act’s
requirements. (Dkt. 5 ¶ 36). IDFPR completed its scoring process and announced
licenses in 2016. Plaintiffs did not receive a license. (Id. at ¶¶ 5-6). Plaintiffs first
allege that the district and scoring process “proved problematic.” (Dkt. 15, 4). They

claim that there were many diverse applicants like Plaintiffs who did not receive a
license: “It is a matter of public record that IDFPR’s process resulted in almost all of
the licenses going to companies majority-owned by white men.” (Id.; Dkt. 5, ¶ 7).
Second, Plaintiffs claim that IDFPR did not award all 60 licenses; it only issued
55. (Dkt. 5, ¶ 15). In four of the districts, no qualified applicants submitted

1 IDFPR amended this rule in 2019 to allow dispensers who had not yet registered to seek relocation.
(Dkt. 9, 7).
information confirming control of compliant property, and for one of the districts,
there were fewer qualified applicants than allotted licenses. (Id.). Plaintiffs allege
that IDFPR’s failure to issue at least 57 licenses is a violation of the Act, because

there were at least two additional qualified applicants, the Plaintiffs, beyond the 55
that the IDFPR selected. (Dkt. 5 ¶ 16). IDFPR rules provide for such a scenario,
stating: “If the Division determines that a District has no qualified applicants or
fewer qualified applicants than authorized registrations, the Division shall post a
notification on the Division’s website detailing the dates of the next open application
period.” 68 Ill. Adm. Code § 1290.4(a)(13). Based on this rule, Plaintiffs waited for

IDFPR to announce a new application period. As of the date of Plaintiffs’ brief, IDFPR
had not yet posted a notification for how it intended to award the additional five
licenses.
In 2019, Illinois passed a law giving special rights to the holders of the 55
medical marijuana licenses. Each license holder would automatically receive two
additional licenses; one to sell recreational cannabis at the same location as the
medical dispensary, and one to open another recreational cannabis dispensary at a

site of their choosing. 410 ILCS 705/15-15, 15-20. The license holders had 60 days to
complete the necessary paperwork to receive this benefit. Afraid of missing this
additional benefit, both BQ Enterprises and Crystal Clear obtained property in a
district where there were no qualifying applications during the 2014 application
period. Plaintiffs then filed paperwork to change the address of their proposed
dispensaries on their 2014 application to new properties situated in one of the five
districts in which a dispensary has not been licensed. On November 6, 2019, IDFPR
issued a letter refusing to allow Plaintiffs to change the address on the grounds that
there was no open application period at that time. All parties acknowledge that this

letter was likely written by Defendant Bender. (Dkt. 16, 10).
Plaintiffs claim that IDFPR treated Plaintiffs differently than (at least) five
other applications who had received licenses.2 According to Plaintiffs, “[a]t least five
of those [55 original winning applications] became eligible for a dispensary license
only because IDFPR allowed them to change the address proposed dispensary
location.” (Dkt. 5 ¶ 7). Plaintiffs claim that at least three companies were allowed to

change to a new address within the district in which they applied, and two were
allowed to change to new districts. (Id. at ¶¶ 31-35). Notably, Plaintiffs claim that
IDFPR allowed these changes after the deadline for submission of the applications.
(Id.). The crux of Plaintiffs’ allegations is that IDFPR Plaintiffs are entitled to a
license because IDFPR was required to issue all 60 licenses.
Defendants contest whether Plaintiffs were indeed qualified applicants
entitled to a license, claiming that Plaintiffs did not comply with IDFPR’s stated

rules. IDFPR maintains that its rules did not permit Plaintiffs to change locations
without filing another application during an open application period. As noted above,
there has not been an open application period since the original 2014 period. And for
the 2014 application period, Plaintiffs did not file an application in the new district

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.
and did not pay the separate application fee. (Dkt. 16, 9) (“They did not apply for, or
pay the application fee for, the districts they are now seeking years later, and there
has been no subsequent active application round at any time relevant to the

complaint.”). IDFPR additionally notes that the applicants identified by Plaintiffs
who were permitted to change locations were in the process of registering their
licenses. (Dkt. 9, 7). The IDFPR rules concerning license holders allowed relocation
during the registration process. Plaintiffs, on the other hand, did not yet have a
license and thus could not seek relocation under those rules.
Plaintiffs sue seeking administrative review of IDFPR’s November 2019

decision in Count I and bring a § 1983 procedural due process claim3 in Count II.
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to
state claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6); Gen. Elec.
Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). In ruling
on a motion to dismiss, the Court accepts as true all well-pleaded facts in the
Plaintiff’s complaint and must “construe the complaint in the ‘light most favorable to

the’ plaintiff.” Zahn v. N. Am. Power & Gas, LLC, 847 F.3d 875, 877 (7th Cir. 2017)
(quoting Bell v. City of Chi., 835 F.3d 736, 738 (7th Cir. 2016)). However, the Court
is not “obliged to accept as true legal conclusions or unsupported conclusions of fact.”
Hickey v. O’Bannon, 287 F.3d 656, 658 (7th Cir. 2002).

3 The Court assumes Plaintiffs are challenging a failure to provide procedural due process as opposed
to substantive due process.
“To survive a motion to dismiss, a complaint must contain sufficient factual
allegations to state a claim for relief that is plausible on its face.” Ill. Bible Coll. Ass’n
v. Anderson, 870 F.3d 631, 636 (7th Cir. 2017), as amended (Oct. 5, 2017), cert denied

sub nom. Ill. Bible Coll. Ass’n v. Cross, 138 S. Ct. 1021 (2018). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007)). “While a plaintiff need not plead ‘detailed factual allegations’ to
survive a motion to dismiss, she still must provide more than mere ‘labels and

conclusions or a formulaic recitation of the elements of a cause of action’ for her
complaint to be considered adequate….” Bell v. City of Chi., 835 F.3d 736, 738 (7th
Cir. 2016) (quoting Iqbal, 556 U.S. at 678).
DISCUSSION
Defendants moved to dismiss on several grounds: sovereign immunity for
IDFPR, qualified immunity for Bender, lack of a property interest in the license, and
that administrative review is not available. The Court shall address each argument

in turn.
1. Property Right
Defendants argue that Plaintiffs do not have a property right in a license.
“[T]he Fourteenth Amendment of the Constitution of the United States… provide[s]
that a person shall not be deprived of life, liberty, or property without due process of
law.” Dargis v. Sheahan, 526 F.3d 981, 989 (7th Cir. 2009) (citations omitted); see also
Residences at Riverbend Condominium Assoc. v. City of Chi., 5 F.Supp.3d 982, 985-
86 (N.D. Ill. 2013). “To determine whether due process requirements apply in the first
place” courts “must look to see if the interest is within the Fourteenth Amendment’s

protection of liberty and property.” Board of Regents of State Colleges v. Roth, 408
U.S. 564, 570-71, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Simply put, “the threshold
question in any due process challenge is whether a protected property or liberty
interest actually exists.” Citizens Health Corp v. Sebelius, 725 F.3d 687, 694 (7th Cir.
2013); see also Jackson v. City of Chicago, 363 Ill. Dec. 351, 368 975 N.Ed.2d 153, 170
(1st Dist. 2012) (“The threshold question in analyzing whether a procedure violates

due process is ‘whether a constitutionally protected liberty or property interest is at
stake.’”) (citation omitted).
Plaintiffs claim that Defendants violated their protected property interest in a
license. “A protected property interest is a legitimate claim of entitlement—not
defined by the Constitution—but ‘by existing rules or understandings that stem from
an independent source such as state law.’” Residences at Riverbend, 5 F.Supp.3d at
986 (citing Roth, 408 U.S. at 577); see also Chicago Teachers Union, Local No. 1 v.

Board of Educ. of City of Chi., 357 Ill.Dec. 520, 525, 963 N.E.2d. 918 (Ill. 2012) (“Of
course, the federal Constitution does not create property interests.”). “To maintain a
claim of property over a government-issued benefit, such as a license or permit, a
plaintiff must show she has ‘a legitimate claim of entitlement to it’ rather than a
‘unilateral expectation to it.’” Dyson v. City of Calumet City, 306 F.Supp.3d 1028, 1041
(N.D. Ill. 2018) (citing Bell v. City of Country Club Hills, 841 F.3d 713, 717 (7th Cir.
2016). More specifically, “where state law gives people a benefit and creates a system
of nondiscretionary rules governing revocation or renewal of that benefit, the
recipients have a secure and durable property right, a legitimate claim of

entitlement.” Chicago United Indus., Ltd. v. City of Chicago, 669 F.3d 847, 851 (7th
Cir. 2012); see also Khan v. Bland, 630 F.3d 519, 527 (7th Cir. 2010) (“A property
interest of constitutional magnitude exists only when the state’s discretion is ‘clearly
limited’ such that the plaintiff cannot be denied the interest ‘unless specific conditions
are met.’”).
Plaintiffs allege that they have a property interest in a license because they

are qualified applicants, they have compliant property in a district with an available
license, and they are the only party who meets that criteria for a district with an
available license. They argue that the Act’s mandatory language—IDFPR “may not
issue less than 60 registrations if there are qualified applicants”—is the type of
nondiscretionary system that creates a valid entitlement. See Kentucky Dep’t of Corr.
v. Thompson, 490 U.S. 454, 463, 109 S.Ct. 1904, 1910 (1989) (“the use of ‘explicitly
mandatory language,’ in connection with the establishment of ‘specified substantive

predicates’ to limit discretion, forces a conclusion that the State has created a liberty
interest”); Kim Contsr. Co v. Bd of Trustees of Vill. of Mundelein, 14 F.3d 1243 (7th
Cir. 1994) (holding that Thompson’s principles apply to property interests).
Defendants disagree, arguing that Plaintiffs ignore the rules promulgated under the
Act. Those rules require applicants to apply to separate districts, pay for each
application, and permit IDFPR to use a competitive scoring system when more than
one applicant applies for a license. 68 Ill. Adm. Code § 1290.40(a)(6).
The Court is persuaded that Plaintiffs have alleged a property interest in the

license. Defendants’ arguments are better suited for summary judgment. Accepting
Plaintiffs’ allegations as true and construing the facts in the light most favorable to
Plaintiffs as we must at this stage, Plaintiffs have sufficiently alleged a
nondiscretionary system providing for a valid entitlement. They have further alleged
that they have met all predicate requirements for a license: they hold compliant
property, they are qualified applicants, and there are no other qualified applicants

for their requested districts. At this early stage, Plaintiffs’ claim may proceed.
To state a procedural due process claim, plaintiffs must allege (1) the
deprivation of a protected interest, and (2) insufficient procedural protections in
effectuating that deprivation. Zumo v. City of Chi., 345 F.Supp.3d 995, 1005-06 (N.D.
Ill. 2018) (citing Michalowicz v. Vill. of Bedford Park, 528 F.3d 530, 534 (7th Cir.
2008)). Plaintiffs have alleged a protected property interest and that Defendants
denied them the protected interest in refusing to grant them a license and refusing

to allow them to change locations. They have further alleged insufficient procedural
protections and that IDFPR has refused to open a new application period for over five
years.
2. Sovereign Immunity
Plaintiffs’ Complaint brings two counts against both defendants, IDFPR and
Bender. Count I is for state law administrative review and Count II is for a violation
of due process under 42 U.S.C. § 1983. Both counts seek only injunctive relief.
Defendant IDFPR argues that it is immune from suit under the Eleventh
Amendment.

a. IDFPR
In general, a state is immune from suits brought by individuals in federal
court. Ameritech Corp. v. McCann, 297 F.3d 582, 585 (7th Cir. 2002) (citing Edelman
v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.E.2d 662 (1974)). However, a
state’s sovereign immunity is not absolute. Id. “In some cases, a suit against a state
or its officials may proceed despite the Eleventh Amendment’s proscription.” Id. For

example, a “state may waive the protections of the amendment and consent to suit in
federal court, or Congress may use enforcement powers under the fourteenth
amendment to abrogate the states’ eleventh amendment immunity.” MSA Realty
Corp. v. Illinois, 990 F.2d 288, 291 (7th Cir. 1993).
Defendants argue that the § 1983 claim in Count II cannot be brought against
IDFPR. (Dkt. 9, 10; Dkt. 16, 1). Plaintiffs fail to respond. Count II requests relief
under § 1983. Section 1983 authorizes suits against a “person” who acts under color

of state law and deprives another person of his or her rights. 42 U.S.C. § 1983. “[A]s
a state agency protected by Eleventh Amendment sovereign immunity, the [IDFPR]
is not a ‘person’ who can deprive a party of its rights, privileges or immunities under
§ 1983.” Illinois Dunesland Preservation Society v. Illinois Dept. of Natural Resources,
461 F.Supp.2d 666, 670 (N.D. Ill. 2006) (citing Will v. Michigan Dept. of State Police,
491 U.S. 58, 65-66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (“We hold that neither a
State nor its officials acting in their official capacities are ‘persons’ under § 1983.”)).
Accordingly, Plaintiffs cannot bring a § 1983 claim against IDFPR, and IDFPR must
be dismissed from Count II, with prejudice. Dunesland, 462 F.Supp.2d at 671

(dismissing state agency from § 1983 suit because “there is no support for the
proposition that claims for injunctive relief may be brought under § 1983 against
state agencies”).
Whether IDFPR can be named in Count I, a claim brought under the
Administrative Review Law, is a bit trickier. Plaintiffs argue that they may bring a
claim for injunctive relief against a state agency under administrative review.

(Dkt.15, 12). Plaintiffs claim that there is “no Eleventh Amendment impediment to
federal courts issuing [injunctive] relief against a state agency,” and cite to Ex Parte
Young and Kroll in support. (Id. at 13). Defendants correctly point out that these
cases involve official capacity suits against state officials, not state agencies. The
Supreme Court has clarified that the Young “exception is narrow: It applies only to
prospective relief, does not permit judgments against state officers declaring that
they violated federal law in the past, and has no application in suits against the states

and their agencies, which are barred regardless of the relief sought.” Puerto Rico
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684,
121 L.Ed.2d 604 (1993) (emphasis added) (internal citations omitted). Indeed, other
courts to have addressed the issue hold that individuals may not sue state agencies
for injunctive relief in federal court. See, e.g., Santiago v. New York State Dep’t of
Correctional Services, 945 F.2d 25, 32 (2d Cir. 1991) (dismissing state agency from
claim for injunction relying on Pennhurst State School and Hospital v. Halderman,
465 U.S. 89, 102 (1984) “a plaintiff seeking prospective relief from the state must
name as defendant a state official rather than the state or a state agency directly,

even though in reality the suit is against the state and any funds required to be
expended by an award of prospective relief will come from the state's treasury”);
Moore v. Louisiana Bd. of Elementary & Secondary Educ., 743 F.3d 959, 963 (5th Cir.
2014) (dismissing two state agencies from suit for injunctive relief relying on
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996) and Puerto Rico Aqueduct &
Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) finding “[f]ederal courts

are without jurisdiction over suits against a state, a state agency, or a state official
in his official capacity unless that state has waived its sovereign immunity or
Congress has clearly abrogated it. … Despite this bar, a federal court may enjoin a
state official in his official capacity from taking future actions in furtherance of a
state law that offends federal law or the federal Constitution. … Only state officials,
not state agencies, may be enjoined.); and General Motors Corp. v. California State
Bd. of Equalization, 815 F.2d 1305, 1309 (9th Cir. 1987) (“The eleventh amendment

does not bar actions for injunctive relief against individual state officials, but it does
bar such action against the state or its agencies, absent their consent.”) (citing
Alabama v. Pugh, 438 U.S. 781, 57 L.Ed.2d 1114, 98 S.Ct. 3057 (per curiam)).
Plaintiffs correctly assert that the court in Petroff Trucking Co. v. Illinois Dep't
of Transp., No. CIV. 11-241-GPM, 2011 WL 6026108, at *4 (S.D. Ill. Dec. 2, 2011) held
that “the Eleventh Amendment does not preclude a suit for prospective relief against
a state, its agencies ….” With respect, the cases relied on by the Petroff court do not
support that proposition. Edelman v. Jordan, 415 U.S. 651, 663–64, 94 S.Ct. 1347, 39
L.Ed.2d 662 (1974)(lower court erred in holding Young allowed retroactive payments

characterized as “equitable restitution”); Ex parte Young, 209 U.S. 123, 159–60, 28
S.Ct. 441, 52 L.Ed. 714 (1908) (the exception to Eleventh Amendment immunity
carved out in Ex Parte Young is that state officials may be sued in their official
capacity for injunctive relief against violations of federal law; it does not allow for
suits against the state); Ameritech Corp. v. McCann, 297 F.3d 582, 585–86 (7th Cir.
2002) (suit only brought against the state official, not against the state); Luder v.

Endicott, 253 F.3d 1020, 1024–25 (7th Cir.2001) (injunctive relief under the FLSA
against the state not at issue, the court stated: “[t]he Eleventh Amendment is not
limited to damages judgments. It applies to injunctive suits, as well, against the
states.”).
In Benjamin v. Illinois Dep't of Fin. & Prof'l Regulation, 837 F. Supp. 2d 840,
852 (N.D. Ill. 2011), the court also held, that “[b]ecause the Eleventh Amendment
does not foreclose claims for injunctive relief (and plaintiff requests injunctive relief

here), plaintiff's Ethics Act claims based on plaintiff's request for injunctive relief
survive against IDFPR …” But again, with respect, there was no further analysis.
Contrary to Plaintiffs’ assertion, it is irrelevant whether administrative review
is equitable in nature given that the Ex Parte Young exception does not apply to state
agencies. Plaintiffs cannot seek an injunction against IDFPR in federal court whether
under § 1983 or administrative review. Accordingly, IDFPR is dismissed from this
suit.
b. Bender

A suit against state officials may proceed in the limited circumstances
identified by Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). “Under
Young, state officials may be sued in their official capacities for injunctive relief,
although they may not be sued for money damages.” MSA Realty, 990 F.2d at 291;
Dean Foods Co. v. Brancel, 187 F.3d 609, 613 (7th Cir. 1999) (“Under the longstanding
doctrine of Ex Parte Young, a private party can sue a state officer in his or her official

capacity to enjoin prospective action that would violate federal law.”). “In determining
whether the doctrine of Ex Parte Young avoids an Eleventh Amendment bar to suit,
a court need only conduct a straightforward inquiry into whether [the] complaint
alleges an ongoing violation of federal law and seeks relief properly characterized as
prospective.” Verizon Maryland, Inc. v. Public Service Comm. of Maryland, 535 U.S.
635, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) (citing Idaho v. Coeur d’Alene Tribe of
Idaho, 521 U.S. 261, 267-69, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997)).

Defendant Bender fits squarely within the Young exception. Bender is a state
official sued in his official capacity. (Dkt. 15, 15). Plaintiffs clarified that they do not
seek any damages from Bender in his official capacity, only injunctive relief. (Id.).
That Plaintiffs’ complaint alleges an ongoing violation of federal law—Defendants’
violation of due process—is beyond dispute. Plaintiffs’ requested relief is “properly
characterized as prospective.” Ameritech Corp., 297 F.3d at 587. Count I seeks a
declaration that Bender improperly refused to award Plaintiffs a license, and Count
II seeks an injunction prohibiting Bender from awarding any other applicant a license
for the Plaintiffs’ requested districts. Count I and Count II are thus properly

characterized as prospective and properly brought against Defendant Bender.
3. Qualified Immunity
Defendants next argue that Bender is entitled to qualified immunity. Both
parties agree that Bender would only be entitled to qualified immunity for damages
in his individual capacity, not for claims of official capacity injunctive or declaratory
relief. It is unclear whether Plaintiffs intend to sue Bender both in his official capacity

and in his individual capacity. Regardless, at this stage in the litigation, the Court
declines to find that qualified immunity warrants dismissal.
Qualified immunity protects officials from civil liability stemming from
discretionary functions, but only if their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.
Siliven v. Ind. Dep’t of Child. Servs., 635 F.3d 921, 925-26 (7th Cir. 2011) (citing
Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172, L.Ed.2d 565 (2009)). The

Seventh Circuit has noted that “a complaint is generally not dismissed under Rule
12(b)(6) on qualified immunity grounds.” Alvarado v. Litscher, 267 F.3d 648, 651 (7th
Cir. 2001) (noting that immunity defense depends on facts that plaintiffs need not
plead in anticipation of the defense).
To survive a motion to dismiss in the face of a qualified immunity defense, the
Complaint must plausibly allege that Bender violated Plaintiffs clearly established
rights by denying them a license. Again, the Court is not only required to take the
facts alleged in the Complaint as true, but also to draw all reasonable inferences in
Plaintiffs’ favor. The Court has already determined that Plaintiffs have alleged a

deprivation of a constitutional right. Accordingly, the Court finds that Plaintiffs have
satisfied this standard. Because the Court cannot find at this stage that Bender’s
conduct was protected by the doctrine of qualified immunity, the motion to dismiss
on that basis is denied.
4. Administrative Review
Finally, Defendants argue that the administrative review claim in Count I is

not available. Generally, administrative review is only available when the relevant
section of a statute expressly adopts the Administrative Review Law for that
particular section. See Bd. of Educ. of Woodland Community Consol. School Dist. 10
v. Ill. State Charter School Comm’n, 2016 IL App (1st) 151372, ¶ 38. Defendants claim
that the Act only allows for administrative review of Section 130, which concerns
disciplinary actions for those who hold a license. (Dkt. 9, 12). Plaintiffs counter that
the Section 130 provides for administrative review of much more. Section 130 states:

“[IDFPR] may revoke, suspend, place on probation, reprimand, refuse to issue or
renew, or take any other disciplinary or non-disciplinary action as [IDFPR] may deem
proper…. All final administrative decisions of [IDFPR] are subject to judicial review
under the Administrative Review Law and its rules.” 410 ILCS 130/130(n) (emphasis
added).
In City of Chicago v. Intl Coll. of Surgeons, 522 U.S. 156, 164 (1997), the
Supreme Court addressed whether a federal court had jurisdiction over claims arising
under Illinois’ Administrative Review Law. The Court determined that federal courts
have supplemental jurisdiction over administrative review claims when the agency’s
action gives rise to constitutional claims over which there is original jurisdiction. See
Petroff Truck Co. v. Ill. Dep’t of Transp., No. CIV 11-241-GPM, 2011 WL 6026108, at
*1 (S.D. Ill. Dec. 2, 2011) (finding supplemental jurisdiction over administrative
review claim). This is precisely the situation here.
The Court is accordingly persuaded that administrative review is available in
this case. Bender’s motion to dismiss on this basis is denied.
CONCLUSION
For the reasons stated herein, Defendants motion to dismiss [8] is granted in
part and denied in part. Defendant IDFPR is dismissed from this suit, Bender’s
motion to dismiss is denied.

ENTER:
Dated: June 23, 2020 Mass VY bu L/
“MARYM.ROWLAND
United States District Judge

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10142969. Public record. Not legal advice.