Swoope v. Gary Community School Corporation et al
Filing
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OPINION AND ORDER DENYING 26 First MOTION to Amend 1 Complaint, filed by Dr David L Swoope, Jr. Signed by Magistrate Judge Andrew P Rodovich on 2/15/12. (kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DR. DAVID L. SWOOPE, JR.,
Plaintiff
v.
GARY COMMUNITY SCHOOL
CORPORATION; DR. MYRTLE
CAMPBELL, DR. CORDIA MOORE, in
their official and individual
capacities,
Defendants
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CIVIL NO. 2:10 cv 423
OPINION AND ORDER
This matter is before the court on the Verified Motion for
Leave to Amend Plaintiff’s Complaint [DE 26], filed by the
plaintiff, Dr. David L. Swoope, Jr., on May 16, 2011.
For the
following reasons, the motion is DENIED.
Background
The plaintiff, Dr. David L. Swoope, Jr., filed his complaint
on October 25, 2010, alleging various federal claims including
gender discrimination, retaliation, harassment, hostile work
environment, and deprivation of due process.
Swoope also raised
various state law claims including breach of contract, defamation, and tortious interference with his contract with Indiana
University Northwest ("IUN").
On December 27, 2010, two defen-
dants, Stanley Wigle, Dean of IUN’s School of Education, and
Professor Vernon Smith, answered the complaint and filed a motion
to dismiss.
The court entered an order granting Smith and
Wigle’s motion to dismiss on April 26, 2011.
In the April 26, 2011 Opinion and Order, the court first
addressed Swoope’s constitutional claim, arising under 42 U.S.C.
§1983, for deprivation of due process in issuing a failing grade.
The court explained that Swoope failed to assert that he had a
property interest in a passing grade.
He was not guaranteed, nor
was a specific promise made, that he would pass the class and was
entitled to graduate.
Moreover, even if Swoope could overcome
this hurdle, Smith and Wigle were immune from suit because the
actions giving rise to Swoope’s claim were performed when Swoope
and Wigle were acting in their official capacities.
Swoope also raised several state tort law claims, including
defamation and tortious interference with contract.
Because
Swoope did not comply with the notice requirements imposed by
Ind. Code §34-13-3-8, the court dismissed his claims against
Wigle and Smith arising under the ITCA.
Swoope’s final claim against Wigle and Smith was for breach
of contract.
In the April 26, 2011 Opinion and Order, the court
explained that Swoope failed to allege that a contract existed
between Wigle and Smith and himself.
Swoope did not identify any
contractual language or specific promise that IUN breached.
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The court granted the motion to dismiss and dismissed Wigle
and Smith from the case.
denied as premature.
Swoope appealed, but his appeal was
Swoope filed a motion to reconsider on May
10, 2011, which the court denied on July 13, 2011.
Swoope now
requests leave to file an amended complaint against Wigle and
Smith.
Discussion
Federal Rule of Civil Procedure 15(a)(1) provides that a
party may amend its pleading once as a matter of course within
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after
service of a responsive pleading or 21 days
after service of a motion under Rule 12(b),
(e), or (f), whichever is earlier.
After the 21 days has expired, "a party may amend the party's
pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so
requires."
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230,
9 L.Ed.2d. 222 (1962).
This Circuit has recognized that because the complaint
merely serves to put the defendant on notice, it should be freely
amended as the case develops, as long as amendments do not unfairly surprise or prejudice the defendant.
Jackson v. Rockford
Housing Authority, 213 F.3d 389, 390 (7th Cir. 2000).
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The deci-
sion of the court to deny leave to amend a complaint is an abuse
of discretion "only if 'no reasonable person could agree with the
decision.'" Winters v. Fru-Con, Inc., 498 F.3d 734, 741 (7th Cir.
2007)(quoting Butts v. Aurora Health Care, Inc., 387 F.3d 921,
925 (7th Cir. 2004)); Ajayi v. Aramark Business Services, 336
F.3d 520, 530 (7th Cir. 2003).
Amendments are freely allowed for electing a different
remedy than the one originally requested, and a party desiring to
change the demand for relief may do so under Rule 15(a).
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Wright & Miller, Federal Practice & Procedure §1474, at 547 (2d
ed. 1990).
However, a motion to amend is more likely to be
denied if it takes place at a relatively late stage in the
proceedings. Aldridge v. Forest River, Inc., 635 F.3d 870, 876
(7th Cir. 2011); Winters, 498 F.3d at 741.
See also James v.
McCaw Cellular Communications, Inc., 988 F.2d 583 (5th Cir. 1993)
(holding that the district court did not abuse its discretion in
denying plaintiff’s motion to amend where motion filed almost 15
months after the original complaint, ten months after the joinder
deadline, five months after the deadline for amendments, and
three weeks after the defendant filed motion for summary judgment).
The plaintiff bears the burden to show some valid reason
for any delay in seeking to amend the complaint. Butts, 387 F.3d
at 921.
See also NL Industries, Inc. v. GHR Energy Corp., 940
4
F.2d 957 (5th Cir. 1991)(holding that the district court did not
abuse its discretion in denying a motion for leave to file second
amended complaint where plaintiff sought to amend its pleading
two years after it first brought defendant into litigation and
after defendant had requested summary judgment, and plaintiff
provided no good reason for not acting sooner).
Leave to amend properly may be denied at the district
court's discretion for "undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment, etc." Foman, 371 U.S. at 182, 83 S.Ct. at 230.
"The court
may deny a motion to amend based, at least in part, on the fact
that the motion to amend was filed after the final deadline set
by the court for the filing of amendments."
ing §779 (2007).
61A Am.Jur.2d Plead-
See Avatar Exploration, Inc. v. Chevron,
U.S.A., Inc., 933 F.2d 314 (5th Cir. 1991)(finding no abuse of
discretion where motion to amend filed after final deadline set
by court for filing of amendments and amendment of pleadings
under circumstances would provide no benefit to movants).
In addition, the court may deny leave because the amendment
is futile.
Bethany Phamacal Company, Inc. v. QVC, Inc., 241 F.3d
854, 861 (7th Cir. 2001).
Futility generally is measured by
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whether the amendment would survive a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), but if a summary judgment motion is pending, futility may be shown with reference to
the entire summary judgment record.
Peoples v. Sebring Capital
Corp., 209 F.R.D. 428, 430 (N.D. Ill. 2002).
Swoope did not amend his complaint within 21 days of serving
it or within 21 days of service of the defendants’ motion to
dismiss.
Instead, he waited until the court granted the defen-
dants’ motion to dismiss and pointed out the shortcomings of his
complaint.
"Under the amended version of Rule 15(a), [Swoope]
does not have the right to sit back, let the Court explain the
shortcomings of [his] Complaint, and then take a mulligan and
amend [his] Complaint."
Park v. Indiana Univ. Sch. Of Dentistry,
2011 U.S. Dist. LEXIS 50265, *5 (S.D. Ind. May 9, 2011).
Swoope
filed his complaint on October 25, 2010, and waited nearly seven
months, until after the court ruled on the defendants’ motion to
dismiss, to request leave to amend, without showing good cause
for his delay.
See Butts, 387 F.3d at 925 (explaining that the
moving party bears the burden to show some valid reason for
neglect and delay in seeking to amended the complaint).
Despite the defendants and the court pointing out the shortcomings of Swoope’s complaint, his proposed amended complaint
fails to cure all the deficiencies.
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To begin, Swoope has alleged
tort claims against the defendants, but he has not indicated in
his amended complaint that he submitted notice as required by the
ITCA.
The ITCA mandates that a claimant provide notice of the
loss he suffered to the governing body of a political subdivision
within 180 days of the event.
Ind. Code §34-13-3-8.
A state
educational institution is included in the definition of political subdivision.
Ind. Code §34-6-2-110(7).
The notice require-
ments apply not only to suits against political subdivisions but
also to suits against employees of political subdivisions.
Alexander v. City of South Bend, 256 F.Supp.2d 865, 875 (N.D.
Ind. 2003).
Swoope did not show in his initial complaint,
response to the defendants’ motion to dismiss, motion to reconsider, or in his amended complaint that he complied with the
ITCA’s notice requirements.
His repeated failure to address this
shortcoming is reason enough to deny his request to amend. Foman,
371 U.S. at 182, 83 S.Ct. at 230 (explaining that repeated failure to cure deficiencies is a ground upon which a motion to amend
may be denied).
It would be futile to allow Swoope to amend his
complaint only to have it dismissed for the same shortcoming.
In his proposed amended complaint, Swoope alleges that he
had an implied contract with IUN, but he did not attach any
contract or identify any language from a contract or specific
promise made.
In the April 26, 2011, Opinion and Order, the
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court explained to Swoope that an implied contract is insufficient to give rise to a breach of contract claim against a
university for failing a student. "Absent evidence of such a
specific promise, the court will not participate in secondguessing the professional judgment of the University faculty on
academic matters".
Bissessur v. Indiana University Board of
Trustees, 581 F.3d 599, 602 (7th Cir. 2009) (affirming dismissal
for failure to state a claim for breach of an implied contract
against Indiana University).
Swoope continues to allege that
there was an implied contract, but he has failed to address the
court’s holding that an implied agreement is insufficient to give
rise to a breach of contract claim against the university.
Swoope’s amended complaint does not correct this shortcoming and
does not point to any specific promise that he was entitled to a
passing grade and degree.
Again, allowing Swoope to amend his
complaint would prove futile as the same shortcoming would result
in a subsequent dismissal.
Swoope also alleges that he was deprived of due process when
he received a failing grade in the course practicum.
"Plaintiff
must prove two elements in order to successfully advance his
individual capacity claims under 42 U.S.C. §1983: (1) that the
defendants were acting under color of state law; and (2) that the
conduct of the defendants deprived the plaintiff of a federal
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right."
Boyce v. Fairman, 24 F.Supp.2d 880, 885 (N.D. Ill. 1998)
(citing Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68
L.Ed.2d 420 (1981)).
The Eleventh Amendment bars claims against
states for monetary damages, including suits against a state
employee acting in his official capacity.
See Parker v. Franklin
County Community School Corp., 2012 WL 266870, *13 (7th Cir. Jan.
31, 2012).
To overcome this, a plaintiff may sue the officials
in their individual capacities.
To establish a claim against an
official in his individual capacity, the plaintiff must allege
that the defendant was personally involved in the deprivation of
his constitutional rights.
Boyce, 24 F.Supp.2d at 885.
"[A]n
official meets the 'personal involvement' requirement when [he]
acts or fails to act 'with a deliberate or reckless disregard of
plaintiff's rights or if the conduct causing the constitutional
deprivation occurs at [his] direction or with [his] knowledge or
consent.'" Boyce, 24 F.Supp.2d at 885 (citing Gossmeyer v.
McDonald, 128 F.3d 481, 494 (7th Cir. 1997)).
Swoope’s proposed amendment does not establish a constitutionally protected liberty or property interest to give rise to a
claim under 42 U.S.C. §1983.
The court previously explained that
Swoope cannot assert a property interest in a passing grade
absent proof of a contract entitling him to a diploma or continued enrollment at the university.
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Williams v. Wendler, 530 F.3d
584, 589 (7th Cir. 2008).
Swoope has not pointed to a contract
or specific agreement that entitled him to continued enrollment
at IUN or a passing grade in the practicum.
See Bissessur, 581
F.3d at 602 (affirming dismissal for failure to state a claim
against university for breach of implied contract because there
plaintiff could not point to a specific promise or terms).
Rather, he has continued to proceed on the theory of implied
contract.
The court already has explained that such reliance is
improper and cannot be the basis of a due process claim because
it does not establish a property interest.
For this reason,
Swoope has failed to state a claim under 42 U.S.C. §1983 against
Wigle and Smith in his proposed amended complaint.
Swoope failed to request leave in a timely manner and did
not cure the deficiencies identified in Wigle and Smith’s motion
to dismiss, the court’s opinion and order granting the motion to
dismiss, or the court’s opinion and order denying Swoope’s motion
to reconsider.
pleading.
It would be futile to permit Swoope to amend his
Swoope’s proposed amended complaint could not survive
a motion to dismiss.
_______________
Based on the foregoing, the Verified Motion for Leave to
Amend Plaintiff’s Complaint [DE 26] filed by the plaintiff, Dr.
David L. Swoope, Jr., on May 16, 2011, is DENIED.
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ENTERED this 15th day of February, 2012
s/ ANDREW P. RODOVICH
United States Magistrate Judge
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