Washington v. Russell County Board of Education et al (JOINT ASSIGN)(MAG+)

Filing 48

MEMORANDUM OPINION and ORDER construing the 47 motion to leave to file amended complaint, motion to stay Magistrate Judge recommendation and memorandum of law in support as a motion for leave to file an amended complaint; GRANTING 47 MOTION fo r leave to file an amended complaint; further ORDERING as follows: (1) on or before 10/7/2016 plf shall file an amended complaint, as further set out in order; (2) the pending 9 , 11 , 12 , 15 , & 18 motions to dismiss are DENIED as moot; and (3) the 46 REPORT AND RECOMMENDATION of the Magistrate Judge is moot. Signed by Chief Judge William Keith Watkins on 9/22/16. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
LEE WASHINGTON,
Plaintiff,
v.
RUSSELL COUNTY BOARD OF
EDUCATION, et al.,
Defendants.

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CASE NO. 3:15-CV-942-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff’s pro se Motion for Leave to File Amended
Complaint, Motion to Stay Magistrate Recommendation and Memorandum of Law
in Support. (Doc. # 47.) The court will construe this document as a motion for leave
to file an amended complaint under Fed. R. Civ. P. 15(a). See Fed. R. Civ. P. 8(e);
see also Winthrop-Redin v. United States, 767 F.3d 1210, 1215 (11th Cir. 2014)
(requiring that “pro se filings” be “liberally construe[d]”).
The Eleventh Circuit has made clear that courts should refrain from
dismissing pro se complaints for failure to state a claim where a redrafted pleading
could plausibly cure the complaint’s deficiencies. “Where a more carefully drafted
complaint might state a claim, a [pro se] plaintiff must be given at least one chance
to amend the complaint before the district court dismisses the action with prejudice.”

Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991), overruled in part, Wagner v.
Daewoo Heavy Indus. Am. Corp., 314 F.3d 541 (11th Cir. 2002) (en banc).1 This
rule admits of only two exceptions: “(1) where the plaintiff has indicated that she
does not wish to amend her complaint; and (2) where a more carefully drafted
complaint could not state a claim and is, therefore, futile.” Carter v. HSBC Mortg.
Servs., Inc., 622 F. App’x 783, 786 (11th Cir. 2015).
Plaintiff has given no indication that he does not wish to amend his complaint.
Rather, the motion before the court today shows just the opposite. (Doc. # 47.)
Moreover, Plaintiff’s failure to file the motion until after the Magistrate Judge issued
his recommendation (Doc. # 46) does not warrant a denial of leave to amend. Cf.
Bank, 928 F.2d at 1112 (requiring that leave be granted “where the plaintiff does not
seek leave until after the district court renders final judgment . . . and even where the
plaintiff never seeks leave to amend in the district court, but instead appeals the
district court’s dismissal”) (citations omitted). Accordingly, Plaintiff’s motion for
leave to amend may only be denied if amendment would be futile. Carter, 622 F.
App’x at 786; see Foman v. Davis, 371 U.S. 178, 182 (1962).
Under the Bank standard, futility of amendment is a high bar. “Leave to
amend a complaint is futile when the complaint as amended would still be properly

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Although Wagner overruled the Bank standard as applied to plaintiffs represented by
counsel, the court explicitly declined to extend its ruling to pro se litigants. 314 F.3d at 542 n.1
(“We decide and intimate nothing about a party proceeding pro se.”).
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dismissed.” Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007). Where “the
issue of futility . . . is close,” the court must “err on the side of generosity to the” pro
se plaintiff. O’Halloran v. First Union Nat’l Bank of Fla., 350 F.3d 1197, 1206
(11th Cir. 2003); see Bettencourt v. Owens, 542 F. App’x 730, 735–36 (11th Cir.
2013) (“In deciding whether a more carefully drafted pro se complaint might state a
claim, i.e., whether an amendment would be futile, we have placed a heavy thumb
on the scale in favor of answering that question in the affirmative.”). Thus, futility
of amendment only justifies denial of leave to amend where “a more carefully
drafted complaint could [not] conceivably state a valid claim,” O’Halloran, 350 F.3d
at 1206, or where it is “scarcely possible” that the pro se plaintiff’s amended
complaint would state a legally cognizable claim, Silva v. Bieluch, 351 F.3d 1045,
1049 (11th Cir. 2003).
In light of this forgiving standard of review, Plaintiff must get his second bite
at the apple. To be sure, Plaintiff’s complaint is rife with pleading deficiencies. (See
Doc. # 46 at 8–29 (pointing out the complaint’s various flaws).) But the majority of
Plaintiff’s claims are at least colorable, albeit insufficiently pleaded. For example,
take Plaintiff’s claim of “Retaliation,” which the Magistrate Judge construed as
“alleg[ing] causes of action for retaliation in violation of Title VII of the Civil Rights
Act of 1964 and the Americans with Disabilities Act.” (Docs. # 1 ¶ 21; 46 at 13.)
As written, the complaint fails to allege the elements of the respective causes of
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action, and therefore fails to state a claim. (See Doc. # 46 at 13–18.) But, conversely,
nothing in the complaint shows that a valid claim could not “conceivably” be stated.
O’Halloran, 350 F.3d at 1206. It very well may be that Plaintiff “participated in an
activity protected by Title VII,” “suffered an adverse employment action,” and can
show “a causal connection between participation in the protected activity and the
adverse action.” Pipkins v. City of Temple Terrace, 267 F.3d 1197, 1201 (11th Cir.
2001) (setting out the elements of a cause of action for Title VII retaliation).
Looking at the face of the complaint, we simply do not know. And even if the
complaint toes the line of “scarce[ ] possib[ility],” Silvia, 351 F.3d at 1049, we must
“err on the side of generosity” and grant Plaintiff leave to amend. O’Halloran, 350
F.3d at 1206.
In sum, the flaws in Plaintiff’s complaint are largely factual, rather than legal,
in nature. (See generally Doc. # 1.) Given the Eleventh Circuit’s mandate that “pro
se filings” are to be “liberally construe[d],” Winthrop-Redin, 767 F.3d at 1215, and
the “heavy thumb on the scale in favor of” granting leave to amend rather than
dismissing with prejudice, Bettencourt, 542 F. App’x at 736, it cannot be said that
leave to amend should be denied as futile. Thus, because Plaintiff has actively
sought to amend his complaint, neither exception to the Banks rule applies here. See
Carter, 622 F. App’x at 786. Plaintiff therefore must be given a chance to cure his
complaint’s deficiencies. Accordingly, it is ORDERED that Plaintiff’s motion for
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leave to file an amended complaint (Doc. # 47) is GRANTED. It is further
ORDERED as follows:
1.

On or before October 7, 2016, Plaintiff shall file an amended complaint

that complies with the Middle District of Alabama’s Local Rule 15.1. See M.D. Ala.
LR 15.1 (“Any amendment to a pleading, document or other papers, whether filed
as a matter of course or upon a motion to amend, must, except by leave of court,
reproduce the entire pleading, document or other papers as amended, and may not
incorporate any prior pleading, document or other papers by reference.”);
2.

The pending motions to dismiss (Docs. # 9, 11, 12, 15, 18) are DENIED

as moot; and
3.

The recommendation of the Magistrate Judge (Doc. # 46) is moot.

DONE this 22nd day of September, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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