The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 25-2235
CHARLES P. GOLBERT, et al.,
Plaintiffs-Appellants,
v.
MARC D. SMITH, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:23-cv-00300 — Martha M. Pacold, Judge.
____________________
ARGUED MAY 21, 2026 — DECIDED SEPTEMBER 8, 2026
____________________
Before ROVNER, ST. EVE, and PRYOR, Circuit Judges.
ROVNER, Circuit Judge. In this appeal we must decide
whether the plaintiffs have stated a claim against state offi-
cials in their official capacities—which would be barred by the
Eleventh Amendment—or in their personal capacities, which
would not. We find the complaint asserts personal-capacity
claims not subject to Eleventh Amendment immunity and
therefore reverse the district court’s dismissal.
2 No. 25-2235
I.
The Illinois Department of Children and Family Services
(DCFS) holds custody over some of the children confined at
the Juvenile Temporary Detention Center (JTDC) in Chicago.
There is no dispute that there have been many instances in
which a judge has released those children from detention but,
because DCFS lacks placements, they remained at the facil-
ity. 1 Sometimes those unjustified detentions continue for
months, and in one case, for more than 300 days. This is not
an isolated problem. In 2021, for example, more than 80 chil-
dren remained detained after being released from court-or-
dered detention. There can be no doubt that detention with-
out cause violates the children’s due process rights, and that
the harms of unjustified imprisonment in a juvenile facility
are significant and troubling. The plaintiffs allege that the in-
dividual defendants were aware of this widespread problem,
had responsibility to ensure timely residential placements,
and yet failed to take the necessary and available steps to do
so. The defendants named in the complaint include both cur-
rent and former DCFS employees in various roles including
deputy directors, placement managers, and other administra-
tors. Those defendants responded to the complaint by filing a
motion to dismiss arguing that although the plaintiffs pled an
individual-capacity lawsuit premised on the defendants’ per-
sonal involvement in the deprivation of constitutional rights,
1 This case addresses a pure legal question: whether the plaintiffs sued
the individual defendants in their personal or official capacities. Never-
theless, in conveying the facts, we assume the truth of the facts set forth in
the well-pleaded complaint and construe all inferences in favor of the
plaintiffs who oppose the motion to dismiss. See Esco v. City of Chicago, 107
F.4th 673, 678 (7th Cir. 2024).
No. 25-2235 3
the claim was in fact “a Monell claim challenging the policies
and practices of a State agency,” and thus barred by the Elev-
enth Amendment. R. 16 at 1. They asserted, in the alternative,
qualified immunity—a defense available in personal-capacity
suits.
Because the question here is purely legal—whether Elev-
enth Amendment immunity applies—we need not catalog the
harms these children have suffered. We note only that all
were in DCFS care or custody because of abuse or neglect and
thus had been exposed to significant adverse childhood expe-
riences before their detentions were unjustifiably extended.
Charles Golbert, the Cook County Public Guardian,
brought this suit on behalf of nine minors, and a putative class
of those similarly situated, alleging violations of the Four-
teenth Amendment Due Process Clause, the Americans with
Disabilities Act (ADA), and the Rehabilitation Act. The plain-
tiffs asserted their due process claims against the twelve indi-
vidual defendants and pursued their ADA and Rehabilitation
Act claims against DCFS.
The district court permitted the plaintiffs to proceed on the
ADA and Rehabilitation Act claims against DCFS but dis-
missed the Fourteenth Amendment Due Process claims
against the individual defendants on Eleventh Amendment
immunity grounds, finding that the claims were actually
against the state and thus barred by the Eleventh Amend-
ment. The district court entered the dismissal as a final order,
concluding that the facts necessary for the due process claim
did not overlap with the other claims, resolution of the claims
against DCFS would have no bearing on the disposition of the
plaintiffs’ § 1983 claims, dismissal of the § 1983 claims was a
final judgment, and that therefore there was no reason to
4 No. 25-2235
delay the appeal. Because the district court “made clear that
it thought it was done with the case” and the dismissal was
“not based on a defect that could have been cured by amend-
ing the complaint,” the dismissal without prejudice on Elev-
enth Amendment grounds amounts to an appealable final
judgment. Nuñez v. Ind. Dep’t of Child Servs., 817 F.3d 1042,
1044 (7th Cir. 2016). The ADA and Rehabilitation Act claims
against DCFS remain pending in the district court.
After the district court granted the motion to dismiss, the
plaintiffs moved for reconsideration, which the district court
denied. We review de novo the grant of the motion to dismiss.
Wertymer v. Walmart, Inc., 142 F.4th 491, 494 (7th Cir. 2025).
II.
The individual defendants ask the court to dismiss the
claims on the grounds that they are, in reality, against the
state and thus barred by the Eleventh Amendment. The sole
question in this case, therefore, is whether the plaintiffs sued
the defendants for Fourteenth Amendment violations in
their official capacities or their personal capacities.
The Fourteenth Amendment, enforced through § 1983,
protects individuals from unconstitutional action taken by
government officers acting under color of state law. Mitchum
v. Foster, 407 U.S. 225, 242 (1972). The government violates a
child’s due process rights under the Fourteenth Amendment
when it takes a child into custody, and intentionally and with-
out justification places that child in danger. See DeShaney v.
Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199–200
(1989); K.H. through Murphy v. Morgan, 914 F.2d 846, 849 (7th
Cir. 1990). And there can be no doubt that detaining a child
without court authorization violates the child’s rights. The
No. 25-2235 5
plaintiffs can enforce their right to be free of government-
caused constitutional violations through 42 U.S.C. § 1983. At
the same time, however, the Eleventh Amendment protects
states from suit by granting immunity from private suits
against states and their entities without their consent. See
Nuñez, 817 F.3d at 1044. In balancing those various rights, the
Supreme Court has repeatedly clarified that neither the Elev-
enth Amendment nor the state sovereign immunity doctrine
prohibits personal-capacity suits pursuant to § 1983 that seek
money damages from the personal assets of state officials for
committing federal constitutional torts. Hafer v. Melo, 502 U.S.
21, 30–31 (1991). 2 We must decide, therefore, whether the
plaintiffs here have sued the defendants in their official or
personal capacities.
Official-capacity suits name a government official but are
in reality against the official’s office and thus against the gov-
ernmental entity itself. See Kentucky v. Graham, 473 U.S. 159,
165–66 (1985). As a result, if an official is sued in that capacity
in federal court and dies or leaves office, that official’s succes-
sor automatically assumes the role in the litigation. Hafer, 502
U.S. at 25 (citing Fed. R. Civ. P. 25(d)(1); Fed. R. App. P.
43(c)(1); S. Ct. R. 35.3). By contrast, a personal-capacity suit
(also called an individual-capacity suit) seeks to impose indi-
vidual liability on a government officer for actions taken
2 Sovereign immunity and Eleventh Amendment immunity are re-
lated concepts. Sovereign immunity is the broader, pre-constitutional
principle that a sovereign cannot be sued without its consent, rooted in
the structure of the original Constitution itself. The Eleventh Amendment,
by contrast, is a specific textual provision that confirmed and exemplified
that broader immunity in the context of federal court jurisdiction. See
Alden v. Maine, 527 U.S. 706, 712–13 (1999).
6 No. 25-2235
under color of state law. Graham, 473 U.S. at 165. In official-
capacity suits, any monetary award is paid by the govern-
mental entity, whereas in a personal-capacity suit, damages
awards “can be executed only against the official’s personal
assets.” Id. at 166. 3
Each type of suit presents a unique challenge for a plain-
tiff. To establish personal liability in a § 1983 action, a plaintiff
must demonstrate that the official, “acting under color of state
law, caused the deprivation of a federal right.” Id. In an offi-
cial-capacity suit, on the other hand, the government must be
the “’moving force’ behind the deprivation”—and conse-
quently must demonstrate that the governmental entity had a
policy or custom that caused the violation of federal law. Id.
(quoting Polk Cty. v. Dodson, 454 U.S. 312, 326 (1981)).
In addition, plaintiffs in these respective suits will face dif-
ferent challenges with respect to the possible defenses. In of-
ficial-capacity suits, the defendant can assert immunity under
the Eleventh Amendment, which immunizes non-consenting
states from suit in federal court. Seminole Tribe of Fla. v. Fla.,
517 U.S. 44, 54 (1996). However, the Eleventh Amendment
does not bar suits seeking prospective injunctive relief. Puerto
Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.
139, 146 (1993). In personal-capacity suits, on the other hand,
the individual-defendant officials can assert the defense of
qualified immunity—that is, that they reasonably relied on
3 As we discuss below, a state may decide to voluntarily indemnify its
employees, but this does not transform a suit against individual defend-
ants into a suit against the state. Benning v. Bd. of Regents of Regency Univs.,
928 F.2d 775, 778–79 (7th Cir. 1991).
No. 25-2235 7
existing statutory or constitutional law in acting as they did.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
With that background, we can summarize what a court
might look for as indicia of the two types of suits. An official-
capacity suit typically seeks prospective injunctive relief and
substitutes successors when officials leave office. A personal-
capacity suit seeks money damages from officials’ personal
assets. Here, however, the district court, sua sponte and with-
out briefing, applied a Fourth Circuit test used to determine
whether, under the statutory schemes of the Fair Labor Stand-
ards Act and the Telephone Consumer Protection Act, a claim
is brought against a state or an individual. Golbert v. Smith,
No. 23–CV–00300, 2025 WL 963914, at *4 (N.D. Ill. Mar. 31,
2025) (citing Cunningham v. Lester, 990 F.3d 361, 366 (4th Cir.
2021) and Martin v. Wood, 772 F.3d 192, 196 (4th Cir. 2014)).
(The district court refers to the Fourth Circuit test as the Cun-
ningham test, but we will refer to it as the Martin test, as sev-
eral Fourth Circuit opinions do.)
We need not enumerate these Martin test factors, because
the Fourth Circuit has held repeatedly that the Martin test is
inapplicable to federal constitutional claims brought pursu-
ant to § 1983, as is the one brought by the plaintiffs here. Ad-
ams v. Ferguson, 884 F.3d 219, 225–26 (4th Cir. 2018) (“We re-
fuse to apply to § 1983 claims [the Martin] factors, which we
articulated for use in considering claims under a very differ-
ent statute, and which would undermine the very purpose of
§ 1983.”); Gibbons v. Gibbs, 99 F.4th 211, 215 (4th Cir. 2024) (re-
fusing to apply the Martin factors to a § 1983 claim). The Su-
preme Court and the Fourth Circuit have confirmed that the
Eleventh Amendment and state sovereign immunity doctrine
pose no obstacle to suits seeking money damages for federal
8 No. 25-2235
constitutional torts from state officials sued individually for
their personal assets pursuant to § 1983. See Hafer, 502 U.S. at
30–31 (“The Eleventh Amendment does not erect a barrier
against suits to impose individual and personal liability on
state officials under § 1983.”) (cleaned up); Gibbons, 99 F.4th at
215 (“Neither the Eleventh Amendment nor the broader doc-
trine of state sovereign immunity it reflects forbids suits to
impose individual and personal liability on state officials un-
der 42 U.S.C. § 1983.”) (internal citation omitted). 4
The Martin test cannot apply to constitutional claims un-
der § 1983 because doing so would violate the very purpose
of § 1983 which is “to deter state actors from using the badge
of their authority to deprive individuals of their federally
guaranteed rights and to provide relief to victims if such de-
terrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992). Section
1983 authorizes “suits to redress deprivations of civil rights
by persons acting ‘under color of any [state] statute, ordi-
nance, regulation, custom, or usage.’” Hafer, 502 U.S. at 27
(quoting 42 U.S.C. § 1983). In other words, § 1983 allows
4 In addition to the Supreme Court, every federal circuit to consider
the issue has also concluded that the Eleventh Amendment does not pose
a barrier to suits against state actors in their personal capacity asking for
money damages from their personal assets. See, e.g., Mulero–Carrillo v. Ro-
man–Hernandez, 790 F.3d 99, 108–09 (1st Cir. 2015); State Emp. Bargaining
Agent Coal. v. Rowland, 718 F.3d 126, 137 (2d Cir. 2013); Sample v. Diecks,
885 F.2d 1099, 1112 (3d Cir. 1989); Goodman v. Harris Cty., 571 F.3d 388,
394–96 (5th Cir. 2009); Hardin v. Straub, 954 F.2d 1193, 1199 (6th Cir. 1992);
Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997), abrogated on other
grounds by S.A.A. v. Geisler, 127 F.4th 1133 (8th Cir. 2025); Pena v. Gardner,
976 F.2d 469, 472–73 (9th Cir. 1992); Pride v. Does, 997 F.2d 712, 715 (10th
Cir. 1993); Lundgren v. McDaniel, 814 F.2d 600, 603 (11th Cir. 1987).
No. 25-2235 9
private litigants to sue state officials precisely because those
officials have taken action as part of their state duties. And
when
a state officer acts under a state law in a manner
violative of the Federal Constitution, he ‘comes
into conflict with the superior authority of that
Constitution, and he is in that case stripped of
his official or representative character and is
subjected in his person to the consequences of
his individual conduct. The State has no power
to impart to him any immunity from responsi-
bility to the supreme authority of the United
States.’
Scheuer v. Rhodes, 416 U.S. 232, 237 (1974) (quoting Ex parte
Young, 209 U.S. 123, 159–60 (1908)). In this way, an official-ca-
pacity claim under § 1983 “is best understood as a reference
to the capacity in which the state officer is sued, not the capac-
ity in which the officer inflicts the alleged injury.” Hafer, 502
U.S. at 26.
The Martin test, in contrast, presumes that if a government
official takes action pursuant to official duties (i.e., under
color of state law), this is an indication that the suit is against
the state and thus the state is protected by Eleventh Amend-
ment immunity. (The first Martin factor asks a court to con-
sider whether “the allegedly unlawful actions of the state of-
ficials [are] tied inextricably to their official duties.”). For pur-
poses of § 1983, however, a defendant’s personal capacity lia-
bility attaches precisely because the defendant acted pursuant
to state authority. But under the Martin factors, acting under
color of law is what insulates the defendant from suit. If the
Martin test applied to § 1983, there could be no viable § 1983
10 No. 25-2235
claims at all—an application of such a test would “absolutely
immunize state officials from personal liability for acts within
their authority and necessary to fulfilling governmental re-
sponsibilities.” Hafer, 502 U.S. at 28. The Fourth Circuit there-
fore has correctly refused to apply the Martin factors to § 1983,
and the district court therefore erred by applying it here.
To what indicia should the court have looked instead? Some-
times, a plaintiff explicitly states in the complaint that the de-
fendants are sued in their personal capacities, or that the
plaintiffs seek damages from the individual defendants’ “per-
sonal assets.” But there is no rigid requirement that a com-
plaint contains this precise language. Graham, 473 U.S. at 167
n.14; Orr v. Shicker, 147 F.4th 734, 739 (7th Cir. 2025). If the
complaint does not specify whether the suit is against officials
in a personal or official capacity, a court must evaluate the
complaint in its entirety, considering the alleged conduct and
the course of the proceedings. Orr, 147 F.4th at 739; Graham,
473 U.S. at 167 n.14; Hill v. Shelander, 924 F.2d 1370, 1373–74
(7th Cir. 1991). In doing so, we must consider whether the
claim, although labeled a personal-capacity claim, is substan-
tially against the state. Gerlach v. Rokita, 95 F.4th 493, 500–01
(7th Cir. 2024), cert. denied, 145 S. Ct. 1044 (2025). “A plaintiff
cannot circumvent the sovereign immunity enjoyed by states
and their employees in their official capacities simply by
pleading a cause of action against those same employees as
individuals.” Id.
As we consider the alleged conduct and the course of the
proceedings, we note that typically we can assume that a suit
seeking injunctive relief from official policies or customs is an
official-capacity suit, and a complaint alleging tortious con-
duct of an individual acting under color of state law, brings a
No. 25-2235 11
personal-capacity claim. Hill, 924 F.2d at 1373–74. Conse-
quently, we look first and foremost to the relief the plaintiffs
sought in their complaint. Because money damages can be re-
covered only in personal-capacity suits, a complaint seeking
only compensatory and punitive damages suggests an intent
to sue the officers in their personal capacities. See Hafer, 502
U.S. at 26–27; Wynn v. Southward, 251 F.3d 588, 592 (7th Cir.
2001) (the plaintiff’s “request for punitive damages suggests
an intent to sue the officers in their individual capacities”);
Miller v. Smith, 220 F.3d 491, 494 (7th Cir. 2000) (a suit for pu-
nitive damages indicates that it is one against officers in their
personal capacities); Hill, 924 F.2d at 1374 (concluding that the
suit must be one of individual capacity because of, among
other things, the request for punitive damages which can only
be recovered against a government actor in an individual-ca-
pacity suit).
Here, the complaint requests compensatory and punitive
damages and no injunctive relief. See R. 1 at 3, 31. Neverthe-
less, the district court concluded that the plaintiffs’ “stated ob-
jective” is to deter further violations of the due process rights
of children in DCFS care. It is true that plaintiffs’ complaint
expressed a desire that their lawsuit will deter similar miscon-
duct and “prevent more children from suffering wrongful in-
carceration.” R. 1 at 3. But such a desire does not convert a
personal-capacity suit into an official-capacity suit. Imagine a
lawsuit in which a person injured by her neighbor’s cracked
sidewalk seeks compensation in the form of money damages.
She might also wish that a large sum of compensatory and
punitive damages will cause enough financial pain to the
neighbors that it encourages them to repair the sidewalk so
that no one else is harmed. But that desire does not turn the
suit for money damages into one for injunctive relief. The
12 No. 25-2235
money damages are enforceable by court order; behavioral
changes are not. If a court were to award the compensatory
and punitive damages in this case, that order could be en-
forced by the court. Any policy changes that DCFS happened
to make to avoid future payments would not be. Put another
way, if the defendants offered to settle for the full amount of
requested damages while refusing to alter any policies or
practices, this lawsuit would end. That is a definitive sign that
this is a suit brought against the officials in their personal ca-
pacity for money damages, even if the plaintiffs also have a
personal desire that policies within the state change.
Indeed, the deterrent effect of a § 1983 lawsuit is baked
into the very essence of the claim. Section 1983 “was intended
not only to provide compensation to the victims of past
abuses, but to serve as a deterrent against future constitu-
tional deprivations.” Owen v. City of Indep., Mo., 445 U.S. 622,
651 (1980); see also, Wyatt, 504 U.S. at 161 (Section 1983 exists
to “deter state actors from using the badge of their authority
to deprive individuals of their federally guaranteed rights
and to provide relief to victims if such deterrence fails.”). In
this way, the desire for deterrence is not a sign of an official-
capacities suit, but rather a sign that § 1983 is operating ex-
actly as intended in allowing the plaintiffs to sue the defend-
ants in their personal capacity.
Moreover, an indirect effect on state coffers also does not
convert a personal-capacity § 1983 claim into an official-ca-
pacity one. As we noted, a state might voluntarily decide to
indemnify its officials so that the state employees do not actu-
ally pay the costs of monetary awards in personal-capacity
suits. But such indemnification—even though it might mean
that the funds for payment of the damages ultimately come
No. 25-2235 13
from the state coffers—is not, on its own, indicative of an of-
ficial-capacity suit. Lewis v. Clarke, 581 U.S. 155, 165–66 (2017);
Stoner v. Wis. Dep't of Agric., Trade & Consumer Prot., 50 F.3d
481, 482–83 (7th Cir. 1995). As the Supreme Court in Lewis ex-
plained, “[t]he critical inquiry is who may be legally bound
by the court’s adverse judgment, not who will ultimately pick
up the tab.” 581 U.S. at 165. Likewise, defendants might make
changes that reduce their liability for future money damages
(like hiring more staff or building new facilities), and those
changes might cost the state money, but this would not be at
the behest of the plaintiffs’ complaint or by order of any court
granting relief in this case. The plaintiffs have asked only for
compensatory and punitive damages—thus indicating an in-
tention to sue the defendants in their personal capacities.
A second decisive indicator of a personal-capacity suit is
the fact that the plaintiffs sued both current and former DCFS
employees. The Federal Rules of Civil Procedure, as well as
the rules of this court and the Supreme Court, provide that if
an official is sued in an official capacity in federal court and
dies or leaves office, the successor automatically assumes the
role in the litigation. Hafer, 502 U.S. at 25 (citing Fed. R. Civ.
P. 25(d)(1); Fed. R. App. P. 43(c)(1); S. Ct. R. 35.3). The plain-
tiffs here named several defendants who had left their roles
with DCFS prior to the filing of the complaint and therefore
could be sued only in their personal capacities. Moreover, the
defendants have not moved to substitute the current position
holders, indicating their understanding that they were sued
in their personal capacities. See, e.g., Duckworth v. Franzen, 780
F.2d 645, 650 (7th Cir. 1985) (concluding that if the state attor-
ney general’s office had thought the suit was against the de-
fendants in their official capacities they would have moved
the court to substitute their successors in office as defendants
14 No. 25-2235
in their place), abrogated on other grounds as noted in Haley v.
Gross, 86 F.3d 630 (7th Cir. 1996); see also Graham, 473 U.S. at
166 n.11 (“In an official-capacity action in federal court, death
or replacement of the named official will result in automatic
substitution of the official’s successor in office.”).
In assessing personal-versus-official-capacity lawsuits,
courts also look to allegations of personal involvement by the
individual defendants in constitutional violations and the ab-
sence of references to governmental policies or customs. Hill,
924 F.2d at 1374 (concluding that the suit must be a personal-
capacity suit because of, among other things, the allegations
involving the officials individual actions and lack of allusion
to an official policy or custom); Wynn, 251 F.3d at 592 (finding
that a suit was a personal-capacity suit where the plaintiff did
not allege that an official policy or custom violated his consti-
tutional rights but rather complained about the unconstitu-
tional acts of two officials and asked for punitive damages);
Miller, 220 F.3d at 494 (Noting that the plaintiff filed suit
against officers for their individual torts—never espousing a
custom or policy by the governmental entity); Conner v. Rein-
hard, 847 F.2d 384, 394 n.8 (7th Cir. 1988) (explaining that the
plaintiff did not assert that the defendants followed a policy
or custom of the governmental entity which is a necessary
showing in an official-capacity suit).
The complaint alleges that the individual defendants re-
ceived ongoing warnings about the problem of children being
incarcerated in the JTDC after receiving orders for their re-
lease and received notice during their tenure of every wrong-
fully incarcerated child in DCFS custody or care. The plain-
tiffs further alleged that these defendants had decision-mak-
ing authority and responsibility to provide appropriate
No. 25-2235 15
placements for children in DCFS care, yet knowingly and per-
sonally failed to exercise that authority and fulfill those du-
ties.
Finally, plaintiffs contend that the defendants assert the
defense of qualified immunity—a defense not available in of-
ficial-capacity suits—and therefore must have interpreted the
complaint as alleging personal-capacity claims. See, e.g.,
Brokaw v. Mercer Cty., 235 F.3d 1000, 1009 (7th Cir. 2000) (hold-
ing that because the defendants asserted a defense of quali-
fied immunity thus treating the suit as a personal-capacity
claim, the court would too). The defendants, however, as-
serted this defense in the alternative and arguments made in
the alternative are not concessions to the opposing party’s
framing of the issues.
In challenges to personal-capacity suits, the Supreme
Court has acknowledged that “imposing personal liability on
state officers may hamper their performance of public duties.
But such concerns are properly addressed within the frame-
work of our personal immunity jurisprudence.” Hafer, 502
U.S. at 31. Consequently, the district court erred in holding
that the Eleventh Amendment barred this suit for money
damages against individual defendants. We therefore reverse
the order dismissing this case. Because the district court did
not reach the questions of whether the plaintiffs failed to state
a claim and the question of qualified immunity, the better
course is to remand to allow the district court to make a de-
termination on these issues in the first instance, particularly
because there may be fact questions regarding the extent to
which the defendants were personally involved in placement
decisions. See City of Austin v. Reagan Nat'l Advert. of Austin,
LLC, 596 U.S. 61, 77 (2022); Davis v. Allen, 112 F.4th 487, 494
16 No. 25-2235
(7th Cir. 2024). For these reasons we REVERSE and REMAND
for further proceedings consistent with this opinion.