248 F.3d 1158 (7th Cir. 2000), 99-2757, Mallett v. Wisconsin Division of Vocational Rehabilitation

Docket Nº:99-2757.
Citation:248 F.3d 1158
Party Name:Gregory C. MALLETT, Plaintiff-Appellant, v. WISCONSIN DIVISION OF VOCATIONAL REHABILITATION, et al. Defendants-Appellees
Case Date:November 22, 2000
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1158

248 F.3d 1158 (7th Cir. 2000)

Gregory C. MALLETT, Plaintiff-Appellant,



No. 99-2757.

United States Court of Appeals, Seventh Circuit

November 22, 2000

Submitted November 22, 2000 [*]

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA7 Rule 53 regarding use of unpublished opinions)

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 90-C-820. Rudolph T. Randa, Judge.

Before Hon. WILLIAM J. BAUER, Hon. MICHAEL S. KANNE, Hon. TERENCE T. EVANS, Circuit Judges.


Gregory Mallett sued the Wisconsin Division of Vocational Rehabilitation ("DVR") and its Administrator. Judy Norman-Nunnery, challenging the decision to close his file and discontinue college tuition assistance he had received under the Rehabilitation Act. See 29 U.S.C. § 701 et seq. After the district court dismissed his case, Mallett appealed and this court reversed and remanded, holding that Mallett could challenge whether the DVR's policy disfavoring graduate school tuition assistance violated his right to an "individualized written rehabilitation program" ("IWRP"). See Mallett v. Wisconsin Div. of Vocational Rehabiliation, 130 F.2d 1245, 1256-57 (7th Cir.1997). On remand, the district court granted summary judgment in favor of the defendants, holding that Norman-Nunnery was immune from suit and neither the DVR policy itself, nor the manner in which it was applied to Mallett violated the Act. Mallett now appeals from the grant of summary judgment, and we affirm.


Title I of the Rehabilitation Act is intended to assist states in operating a comprehensive program of vocational rehabilitation services for disabled individuals. 29 U.S.C. § 722(a). The Wisconsin legislature accepted the provisions of the Rehabilitation Act and designated the DVR as its rehabilitation services agency. Wis. Stat. § 47.02(1). Section 722 of the Act requires an IWRP that is developed jointly between the eligible individual and a vocational rehabilitation counselor.

On August 15, 1984, the DVR found Mallett eligible for DVR services as a result of injuries to his back and shoulder and several psychological disabilities discovered during his medical evaluations. During his eligibility period for rehabilitative services, Mallett first attended classes at the Milwaukee Area Technical College. In 1986, Mallett transferred to University of Wisconsin at Milwaukee. At both schools, Mallett consistently failed to meet the DVR requirement that he enroll in a minimum of twelve credit hours and earn a GPA of at least 2.0.

Around 1988. Mallett announced plans to attend law school and requested DVR tuition assistance for his plan. Burke questioned this plan in light of his past academic performance and his current GPA. According to her notes. Burke suggested to Mallett "that he must accept the possibility that he will not be admitted to law school and that he should think about employment possibilities with a bachelor's degree" but that he "simply refused to acknowledge the possibility that he will not be admitted." Burke also suggested that under DVR policy, he would not be eligible to receive funds for law school. Because of her doubts about Mallett's ability to even obtain an undergraduate degree and because Burke and Mallett could not agree on a plan for tuition assistance. Burke recommended that Mallett's file be closed on March 20, 1989.

Mallett then exercised his right to administrative appeals under the Act. See 29 U.S.C. § 722(d). Both a DVR supervisor and an impartial hearing officer agreed the file was properly closed. Finally, in response to a letter from Mallett, DVR Administrator Judy Norman-Nunnery declined to review the decision, finding it "consistent and equitable." After exhausting his administrative remedies, Mallett brought the underlying action. In the initial appeal before this court, we held that Mallett could make a § 1983 challenge to the DVR policy and, because Mallett had vacated his § 1983 action against the DVR in his 1992 Amended Complaint, we also confirmed that "Norman-Nunnery [was] the sole defendant for this [§ 1983] claim." Mallett, 130 F.3d at 1251.

On remand, the defendants filed motions for summary judgment, which the district court granted, holding that Norman-Nunnery was immune from suit and that the DVR policy of disfavoring graduate school assistance does not violate § 722 because it does not foreclose vocational counselors from creating an IWRP that includes graduate studies if the individual's strengths and capabilities support it. The district court also found that the DVR did not apply its policy to Mallett in such a way as to violate § 722. Mallett now appeals anew, claiming that the district court erred in finding the DVR policy did not violate § 1983. He also appeals the district court's consideration of documents attached to Mallett's complaint for purposes of the summary judgment motion and its denial of his post-judgment motion to file an Amended Complaint under Federal Rule of Civil Procedure 15(b). For the following reasons, we affirm.


Although we remanded the case with a finding that Norman-Nunnery was the sole defendant for the § 1983 claim, Mallett's Amended Complaint does not indicate whether he is suing Norman-Nunnery in her individual capacity or in her official capacity as Administrator of the DVR. If his claim is against Norman-Nunnery in her personal capacity, then the doctrine of qualified immunity governs. If, however, Mallett is suing her as Administrator of the DVR, the Eleventh Amendment controls. As discussed below, it makes little difference because Mallett's claim fails under either theory.

Mallett's § 1983 Claim against Norman-Nunnery in Her...

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