Makhsous v. Daye, No. 20-1624 (7th Cir. 2020)

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Justia Opinion Summary

Makhsous owned three Wisconsin residential care facilities. In 2015, the Wisconsin Department of Health Services (DHS) found that two of Makhsous’s facilities did not comply with Wisconsin law. Daye is the supervisor of the Aging and Disability Resource Center (ADRC) of Marinette County, which makes recommendations to individuals who inquire about residential care facilities. It does not place individuals in care facilities, monitor care facilities, or issue citations or sanctions to care facilities. In 2016, the ADRC began publishing a “facility directory” for potential residents. Under Wisconsin’s ADRC Operational Practice Guidelines, the directory cannot include facilities that have been found in violation of law.

Makhsous filed suit, alleging that Daye violated the Due Process and Equal Protection Clauses by failing to include Makhsous’s facilities in the ADRC directory and refusing to refer individuals to her facilities. The Seventh Circuit affirmed summary judgment in favor of Daye. Makhsous did not show that Daye harmed a constitutionally protected property interest or discriminated against her. The ADRC directory did not include Makhsous’s facilities because they were found deficient by DHS and because Makhsous failed to ask the ADRC to include them. Makhsous had no rebuttal evidence showing that Daye failed to include her facilities in the directory because of her race.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 20 1624 XUEJUN MAKHSOUS, Plaintiff Appellant, v. PAM DAYE, Defendant Appellee. ____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 18 C 587 — William C. Griesbach, Judge. ____________________ SUBMITTED OCTOBER 27, 2020 — DECIDED NOVEMBER 20, 2020 ____________________ Before SYKES, Chief Judge, and KANNE and ST. EVE, Circuit Judges. KANNE, Circuit Judge. This is a case of a disgruntled entre preneur trying to spin her business di culties into constitu tional claims. But Plainti has not succeeded. We therefore af firm the district court’s decision granting summary judgment to Defendant. 2 No. 20 1624 I. BACKGROUND Plainti Xuejun Makhsous once owned three residential care facilities in Wisconsin. In 2015, the Wisconsin Depart ment of Health Services (“DHS”) found that two of Makhsous’s facilities did not comply with Wisconsin law. Defendant Pam Daye is the supervisor of the Aging and Disability Resource Center of Marinette County, Wisconsin (“ADRC”). The ADRC makes recommendations to individu als who inquire about residential care facilities. It does not place individuals in care facilities, monitor care facilities, or issue citations or sanctions to care facilities. In 2016, the ADRC began publishing a “facility directory” for potential residents to peruse. Under Wisconsin’s ADRC Operational Practice Guidelines, the directory cannot include facilities that have been found in violation of state, federal, or municipal law —such as Makhsous’s. Acting pro se, Makhsous filed this suit in 2018 alleging that Daye violated the Fourteenth Amendment’s Due Process and Equal Protection Clauses by failing to include Makhsous’s fa cilities in the ADRC directory and refusing to refer individu als to her facilities. The district court granted summary judg ment to Daye because Makhsous did not show that Daye harmed a constitutionally protected property interest or dis criminated against her. Now represented by counsel, Makhsous appeals that decision. II. ANALYSIS We review the district court’s order granting summary judgment de novo. Flexible Steel Lacing Co. v. Conveyor Accesso ries, Inc., 955 F.3d 632, 643 (7th Cir. 2020) (citing Ga. Pac. Con sumer Prods. LP v. Kimberly Clark Corp., 647 F.3d 723, 727 (7th No. 20 1624 3 Cir. 2011)). “Summary judgment is appropriate when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “We draw ‘all justifiable inferences’ in the fa vor of the nonmoving party.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)) (citing AutoZone, Inc. v. Strick, 543 F.3d 923, 929 (7th Cir. 2008)). A. Due Process For Makhsous to succeed on her due process claim, she must establish that Daye deprived her of a constitutionally protected property interest. Kowalski v. Boliker, 893 F.3d 987, 1000 (7th Cir. 2018). A property interest is a right created by “existing rules or understandings that stem from an inde pendent source such as state law.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). For an interest to be constitu tionally protected, a plaintiff must have “a legitimate claim of entitlement to it” rather than “a unilateral expectation of it.” Id. Here, Makhsous asserts that under Wisconsin Statute § 46.283 and the ADRC’s 2016 contract with DHS, she had a protected property interest in the ADRC listing her facilities in the directory. But neither source establishes such an inter est. First, § 46.283 provides for the creation and operation of resource centers like the ADRC. It does not confer any prop erty rights to individuals. Second, the contract between the ADRC and DHS does not include Makhsous as a party. And Makhsous has not pointed to any part of the contract that grants her a property interest. Makhsous’s desire to be in cluded in the directory or referred to by the ADRC, without 4 No. 20 1624 more, is thus a mere “unilateral expectation” and insufficient to support a due process claim. Id. B. Equal Protection To succeed on her class of one equal protection claim, Makhsous must establish that Daye discriminated against her with no rational basis for doing so. Miller v. City of Monona, 784 F.3d 1113, 1120 (7th Cir. 2015). “Normally, a class of one plaintiff will show an absence of rational basis by identifying some comparator—that is, some similarly situated person who was treated differently.” Fares Pawn, LLC v. Ind. Dep’t of Fin. Insts., 755 F.3d 839, 845 (7th Cir. 2014). In this case, Makhsous argues that Daye discriminated against her based on her race by refusing to refer individuals to her facilities and by failing to include her facilities in the ADRC facility directory.1 These arguments do not hold water. The first proffered reason is wholly baseless: Makhsous has put forth no evidence showing that Daye failed to “refer” individuals to her facilities. Instead, the record shows that Daye had no duty to refer individuals to, or place individuals in, Makhsous’s facilities. And, for that matter, she did not “re fer” anyone to any facilities; she only made recommendations in response to inquiries. So the only possible question is whether any evidence shows that Daye excluded Makhsous’s facilities from the ADRC directory based on Makhsous’s race. But none does. To 1 It is unclear whether Makhsous has also argued that DHS’s investi gation of her facilities supports an equal protection claim against Daye. If she has, the district court was correct that this is a frivolous argument be cause Daye had nothing to do with DHS’s investigations. No. 20 1624 5 the contrary, the evidence makes clear that the ADRC direc tory did not include Makhsous’s facilities because they were found deficient by DHS and because Makhsous failed to ask the ADRC to include them. And Makhsous marshalled no re buttal evidence showing that Daye failed to include her facil ities in the directory because of her race. Makhsous’s equal protection claims thus cannot survive summary judgment. III. CONCLUSION We AFFIRM the decision of the district court granting summary judgment to Defendant.
Primary Holding
Seventh Circuit rejects Due Process and Equal Protection claims based on a state agency's failure to include residential care facilities in a consumer directory after those facilities were found to be in violation of law.

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