COLEY v. INDIANA DEPARTMENT OF CHILD SERVICES et al

Filing 79

ENTRY Discussing Motions to Amend. The motions to amend filed on June 5, 2015 [dkt 65] and June 12, 2015 [dkt 68] are each denied as moot. The motion to amend filed on July 8, 2015 [dkt 70] is granted. The following claims shall proceed: (1) The cl aim that defendants Kathleen Landrum, Mike Abell, and Hiwot Seifu violated Ms. Coley's rights to procedural and substantive due process when removing her children from her custody. (2) The claim that defendants Kathleen Landrum, Mike Abell, a nd Hiwot Seifu violated Ms. Coley's rights Fourth Amendment rights when removing her children from her custody without a court order. The defendants have already appeared in this action. They shall have through August 14, 2015, in which to fi le an answer to the Second Amended Complaint. Any party seeking additional time for discovery to file dispositive motions based on the rulings in this Entry shall have through August 14, 2015, in which to file a motion requesting such relief. The clerk shall file and docket the proposed amended complaint (dkt 70-1) as the Second Amended Complaint. Signed by Judge Jane Magnus-Stinson on 7/22/2015. Copy sent to Plaintiff via U.S. Mail. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BRITTANY COLEY,
Plaintiff,
v.
KATHLEEN LANDRUM Family Case
Manager,
MIKE ABELL Supervisor,
HIWOT SEIFU DCS Worker,
Defendants.

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No. 1:14-cv-00956-JMS-DML

Entry Discussing Motions to Amend
Plaintiff Brittany Coley filed motions to amend her complaint on June 5, 2015, June 12,
2015, and July 8, 2015. Because an amended complaint completely supersedes the original
complaint, and because it appears to be Ms. Coley’s intention that most recent motion to amend
reflect the relief she seeks through those motions, the motions to amend filed on June 5, 2015 [dkt
65], and June 12, 2015 [dkt 68] are denied as moot and the motion to amend filed on July 8, 2015,
is therefore under consideration.
I. The Motion to Amend
Through the motion to amend, Ms. Coley seeks to add a claim that defendants Kathleen
Landrum and Mike Abell violated her Fourth Amendment right to be free from unreasonable
search and seizure when they removed her children without a court order. The defendants have
objected to the motion arguing that it is untimely because the scheduling order of December 8,
2014, provided that any party wishing to amend its Complaint, Answer, or other pleading must file
a motion requesting permission to do so by April 17, 2015.
Generally, a motion for leave to amend a complaint is evaluated under Federal Rule
of Civil Procedure 15(a)(2). That rule provides that courts “should freely give leave

when justice so requires.” See also Soltys v. Costello, 520 F.3d 737, 742–43 (7th
Cir.2008) (discussing the standard). However, the rule is in some tension with the
rule that governs scheduling orders, Federal Rule of Civil Procedure 16. Under the
rule, district courts are generally required to issue scheduling orders in their cases
as soon as practicable. Fed.R.Civ.P. 16(b)(2). And courts are required in a
scheduling order to set a deadline for filing amended pleadings. Fed.R.Civ.P.
16(b)(3)(A).
Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th Cir. 2011). Because the motions to amend were
filed after the deadline set forth in the scheduling order of April 17, 2015, the Court applies the
heightened good-cause standard of Rule 16(b)(4) before considering whether the requirements of
Rule 15(a)(2) are satisfied. See id. “Rule 16(b)'s ‘good cause’ standard primarily considers the
diligence of the party seeking amendment.” Trustmark Ins. Co. v. Gen. & Cologne Life Re of Am.,
424 F.3d 542, 553 (7th Cir. 2005) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
609 (9th Cir. 1992)).
Ms. Coley argues that there is good cause for her delay in moving to amend the complaint
because “It was not until the court issued a subpoena for documents that the Plaintiff became more
aware as to the validity of her claim.” Ms. Coley received an order and a subpoena compelling the
production of certain documents on April 17, 2015. After receiving the documents related to her
claim, she filed a motion to amend and a proposed amended complaint on June 5, 2015. Because
Ms. Coley has shown diligence in moving to amend her complaint, she has shown good cause to
modify the pretrial schedule. Accordingly, the motion to amend [dkt 70] is granted. The clerk
shall file and docket the proposed amended complaint (dkt 70-1) as the Second Amended
Complaint.
II. Screening of the Second Amended Complaint
The second amended complaint is subject to the screening requirement of 28 U.S.C.
§ 1915(e)(2)(B). This statute allows the Court to dismiss a complaint or claim within a complaint

if it is frivolous or malicious, fails to state a claim for relief, or seeks monetary relief against a
defendant who is immune from such relief.
Based on this screening, the following claims shall proceed:


The claim that defendants Kathleen Landrum, Mike Abell, and Hiwot Seifu

violated Ms. Coley’s rights to procedural and substantive due process when removing her children
from her custody. The right implicated in this case is the Fourteenth Amendment right to due
process. The Fifth Amendment is not implicated by the plaintiff’s allegations, because the
defendants are state actors, not federal actors. Jackson v. Byrne, 738 F.2d 1443 (7th Cir. 1984).


The claim that defendants Kathleen Landrum, Mike Abell, and Hiwot Seifu

violated Ms. Coley’s rights Fourth Amendment rights when removing her children from her
custody without a court order.
Any claim against the Indiana Department of Child Services is dismissed because
Eleventh Amendment immunity bars suits against states and their agencies regardless of the relief
sought, whether damages or injunctive relief. Seminole Tribe of Florida v. Florida, 517 U.S. 44,
58 (1996); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 102 (1984). In
addition, states and their agencies are not Apersons@ subject to suit pursuant to 42 U.S.C. ' 1983
under the circumstances alleged in Burchett=s complaint. Will v. Michigan Department of State
Police, 491 U.S. 58 (1989).
III. Conclusion
The motions to amend filed on June 5, 2015 [dkt 65] and June 12, 2015 [dkt 68] are each
denied as moot. The motion to amend filed on July 8, 2015 [dkt 70] is granted.
The following claims shall proceed: (1) The claim that defendants Kathleen Landrum,
Mike Abell, and Hiwot Seifu violated Ms. Coley’s rights to procedural and substantive due process
when removing her children from her custody. (2) The claim that defendants Kathleen Landrum,

Mike Abell, and Hiwot Seifu violated Ms. Coley’s rights Fourth Amendment rights when
removing her children from her custody without a court order. The defendants have already
appeared in this action. They shall have through August 14, 2015, in which to file an answer to
the Second Amended Complaint.
Any party seeking additional time for discovery to file dispositive motions based on the
rulings in this Entry shall have through August 14, 2015, in which to file a motion requesting
such relief.
IT IS SO ORDERED.

07/22/2015
Date: _________________
Distribution:
BRITTANY COLEY
PO Box 88703
Indianapolis, IN 46208
All electronically registered counsel
Note to Clerk: Processing this document requires actions in addition to docketing and distribution.