Xuejun Makhsous v. Pam Daye ( 2020 )

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 difficulties into constitu‐
tional claims. But Plaintiff has not succeeded. We therefore af‐
firm the district court’s decision granting summary judgment
to Defendant.
2 No. 20‐1624
I. BACKGROUND
Plaintiff 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
1It 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.