United States District Court, D. Kansas
CLARA R. FULLER, Plaintiff,
STATE OF KANSAS, DEPARTMENT OF CHILDREN & FAMILIES, STEPHANIE HENDERSON, LEWIS KIMSEY, LISA LOCKE, and SANDRA KIMMONS in their individual and official capacities, Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
matter comes before the court on the Kansas Department of
Children and Families' (“DCF”) Motion to
Review Magistrate Order of March 3, 2017. Doc. 34. DCF asks
the court to review United States Magistrate Judge James P.
O'Hara's Order granting, in part, plaintiff's
Motion to Amend Complaint (Doc. 31). For reasons explained
below, the court denies DCF's Motion.
filed her original Complaint on June 14, 2016. Doc. 1.
Plaintiff first moved to amend the Complaint on September 12,
2016. Doc. 18. The court denied the motion without prejudice.
Doc. 23. When it denied plaintiff's first motion to
amend, the court discussed the reason that DCF had opposed
plaintiff's motion. DCF asserted that plaintiff's
claims against it are barred by the Eleventh Amendment
because DCF is an arm of the state and thus immune from suit
in federal court. Doc. 23 at 5. The court agreed.
Id. But, the court also explained that the Eleventh
Amendment does not prohibit suits against state officials in
their official capacities. Id. And, because it
appeared from plaintiff's first motion to amend that she
planned to add state officials to her Complaint, the court
denied her motion without prejudice to refiling.
refiled her Motion to Amend the Complaint in February. Doc.
29. In her motion, plaintiff asked to add: (1) four
defendants in their individual and official capacities; (2)
“Carol Y” as a second plaintiff; and, (3) a claim
under “Title VII of the Civil Rights Act of
1964.” Doc. 29 at 1. Judge O'Hara granted
plaintiff's Motion in part. Doc. 31. The court granted
plaintiff leave to amend her Complaint except to the extent
she sought to add another plaintiff. Doc. 31 at 1. The court
explained: “plaintiff, as a pro se litigant, cannot
represent [Carol Y] in this matter.” Doc. 31 at 1-2.
The court instructed plaintiff to file her amended complaint
no later than March 10, 2017, and to title the pleading
“Amended Complaint.” Id. at 2. It also
instructed DCF to file any motion to dismiss within five days
of the filing of the amended complaint. Id.
filed her Amended Complaint on March 10, 2017. Doc. 33. The
Amended Complaint does not identify DCF as a defendant.
Instead, it identifies DCF employees Stephanie Henderson,
Lewis Kimsey, Lisa Locke, and Sandra Kimmons as defendants in
their individual and official capacities. Id. at 1.
Plaintiff also added a Title VII claim. Id. at 2.
DCF then filed this Motion to Review Judge O'Hara's
March 3, 2017 Order granting, in part, plaintiff's Motion
to Amend Complaint. Doc. 34.
makes two objections to Judge O'Hara's Order and
plaintiff's Amended Complaint. First, DCF contends that
no current defendant in the case can file a motion to dismiss
despite the court's instruction to file within five days
of the Order. Id. at 4. Second, DCF objects
“to the Magistrate [Judge] allowing Plaintiff to assert
an untimely Title VII claim.” Id. In its
motion to review, DCF asks the court to clarify that DCF is
no longer a party, and that plaintiff's Title VII claim
is barred as untimely.
72(a) provides that when a magistrate judge issues a written
order deciding a nondispositive motion, a party may assert
objections to the order within 14 days after service of a
copy of the challenged order. The district judge in the case
must consider timely objections, and “modify or set
aside any part of the order that is clearly erroneous or is
contrary to law.” Fed.R.Civ.P. 72(a).
DCF and Additional Defendants
first objection is better characterized as a request for
clarification. DCF contends it is no longer a defendant in
the case because plaintiff has not listed DCF in the Amended
Complaint. And, because plaintiff has not served any of the
additional defendants with the Amended Complaint, DCF claims
that it filed this Motion to Review out of caution. Doc. 34
at 4, 7. But plaintiff's Amended Complaint asserts claims
against DCF employees in their official capacities. These
claims are, in effect, a suit against DCF because “a
suit against a state official in his or her official capacity
is not a suit against the official but rather is a suit
against the official's office.” Will v. Mich.
Dep't of State Police, 491 U.S. 58, 71 (1989). So
plaintiff's decision to add four of DCF's employees
in their official and individual capacities did not eliminate
DCF as a party to this case. To the extent Eleventh Amendment
immunity bars claims against DCF or its officials in their
official capacities, defendants can raise the issue in a
motion to dismiss. DCF, Stephanie Henderson, Lewis Kimsey,
Lisa Locke, and Sandra Kimmons in their individual and
official capacities are codefendants in this case. DCF's
objection on this point does not require the court to modify
or set aside the March 3, 2017 Order.
Title VII Claim
also objects to the court's Order granting plaintiff
leave to amend her Complaint to include Title VII claims. DCF
asserts that when it reviewed plaintiff's renewed Motion
to Amend adding the Title VII claims, it assumed the court
“would deny the motion [because] it [could not] survive
a motion to dismiss.” Doc. 34 at 4. But Rule 15(a) of
the Federal Rules of Civil Procedure provides: “The
court should freely give leave [to amend the complaint] when
justice so requires.” This rule helps “safeguard
a plaintiff's opportunity to test her claims on the
merits.” Bauchman for Bauchman v. W. High
Sch., 132 F.3d 542, 559 (10th Cir. 1997). Indeed, the
court “may deny a motion for leave to amend as futile
when the proposed amended complaint would be subject to
dismissal.” Id. at 562. But DCF does not cite,
and the court does not find, any authority holding that the
court must deny a motion for leave to amend if the
proposed amended complaint would be subject to dismissal. DCF
contends plaintiff's Title VII claim is untimely, and she
cannot pursue it against individual employees. If true, DCF
can raise that issue simply in a motion to dismiss. The
Federal Rules instruct the court to “freely give
leave” to amend the complaint when justice so requires.
Fed.R.Civ.P. 15(a). The Order granting plaintiff's Motion
to Amend thus was not clearly erroneous or contrary to law.