Antonia M. Gonzalez-Nunez v. Wisconsin Department of Health Services

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 11, 2024 *
Decided September 16, 2024
Before
DIANE S. SYKES, Chief Judge
MICHAEL B. BRENNAN, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 24-1158
ANTONIA M. GONZALEZ-NUNEZ,
Plaintiff-Appellant,
v.
WISCONSIN DEPARTMENT OF
HEALTH SERVICES,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 24-C-0077
Lynn Adelman,
Judge.
O R D E R
Antonia Gonzalez-Nunez sued the Wisconsin Department of Health Services
under 42 U.S.C. § 1983. The district judge correctly dismissed her suit for failure to state
a claim against a “person” under § 1983; thus we affirm.
* We have agreed to decide the case without oral argument because the appeal is
frivolous. FED. R. A PP. P. 34(a)(2)(A).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 24-1158 Page 2
Gonzalez-Nunez alleged that she was not receiving prescriptions to treat her
chronic pain and filed this suit to find out if the Department was to blame. The district
judge granted her motion to proceed in forma pauperis and screened her suit under
28 U.S.C. § 1915(e)(2)(B)(ii). He then explained that Gonzalez-Nunez could not use a
federal suit to investigate possible claims. In any case, because the Department was not
a “person” for the purposes of § 1983, the judge concluded that any amendment against
the Department would be futile and dismissed the suit with prejudice.
On appeal, Gonzalez-Nunez contends that the Department is to blame for her
difficulty in securing her pain medication, among other accusations, but she does not
meaningfully address the district judge’s reasoning that the suit fails because the
Department is not a “person” who can be sued under § 1983. We are mindful of
Gonzalez-Nunez’s pro se status, see Atkins v. Gilbert, 52 F.4th 359, 361 (7th Cir. 2022)
(citing Anderson v. Hardman, 241 F.3d 544, 545–46 (7th Cir. 2001)), but she is still required
to comply with Rule 28(a) of the Federal Rules of Appellate Procedure by challenging
the district judge’s analysis. Anderson, 241 F.3d at 545–46; FED. R. A PP. P. 28(a). Because
she has not, we could dismiss her appeal. Id. Still, we prefer to decide cases on the
merits when we can, Boutros v. Avis Rent A Car Sys., LLC, 802 F.3d 918, 924 (7th Cir.
2015), and we can do so here. A plaintiff may invoke § 1983 only against a “person.” 42
U.S.C. § 1983. But a state is not a “person” under § 1983, and the department of a state is
equivalent to the state and therefore not a “person.” Will v. Michigan Dep’t of State Police,
491 U.S. 58, 64 (1989). Thus, the district judge rightly ruled that Gonzalez-Nunez cannot
use § 1983 to sue the Department.
We conclude with the matter of sanctions. Gonzalez-Nunez filed this appeal,
which we consider frivolous, before we warned her in Gonzalez-Nunez v. Verser, 2024
WL 1635255, at *1 (7th Cir. Apr. 16, 2024), that frivolous appeals may result in sanctions,
including fines, that, if unpaid, may result in a filing bar. See Support Sys. Int’l, Inc. v.
Mack, 45 F.3d 185, 186 (7th Cir. 1995). Because this appeal preceded that warning, we
decline to impose sanctions now, but we remind Gonzalez-Nunez that our warning
about filing frivolous appeals in the future remains in full force, and includes the
possibility of monetary fines (that if unpaid may lead to a filing bar) or other sanctions.
AFFIRMED

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