DOE v. MCCAULEY et al
ORDER denying Plaintiff's 24 Motion for Leave to File Amended Complaint. See Order. Signed by Magistrate Judge Mark J. Dinsmore on 6/30/2017. (SWM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
ORDER ON PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT
This matter is before the Court on Plaintiff’s Motion for Leave to Amend Complaint.
[Dkt. 24.] For the following reasons, the Court DENIES Plaintiff’s Motion.
Plaintiff, a former inmate at the Indiana Women’s Prison, brought suit against Defendants
on December 16, 2016, alleging that Defendants denied her request to be taken to a healthcare
provider to obtain an abortion and otherwise obstructed her efforts to obtain the same. [Dkt. 1.]
Plaintiff alleges that Defendants’ actions violated her Eighth Amendment right against cruel and
unusual punishment and her Fourteenth Amendment right to lawfully terminate her pregnancy.
[Id.] Plaintiff seeks damages under 42 U.S.C § 1983. [Id. at 2.]
Plaintiff now seeks leave to file an amended complaint to allege additional claims for
injunctive and declaratory relief. [Dkt. 24-1 at 12-14.] Specifically, Plaintiff seeks to enjoin
enforcement of Directive #03-12, a policy at the Indiana Women’s Prison which “prohibits
scheduling an inmate to visit an abortion provider unless the inmate has pre-paid the costs of
transportation and security to the abortion provider.” [Id. at 12 (¶ 85).] Defendant opposes the
Motion, which is fully briefed and ripe for consideration. [Dkts. 24, 25, & 26.]
Federal Rule of Civil Procedure 15(a) provides that the “court should feely give leave” to
amend the pleadings “when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, “the district
court need not allow an amendment . . . when the amendment would be futile,” Bethany
Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 861 (7th Cir. 2001), such as where an added claim
“could not survive a . . . motion to dismiss,” Foster v. DeLuca, 545 F.3d 852, 584 (7th Cir. 2008)
(internal quotation omitted).
Defendants argue that Plaintiff’s proposed amended complaint would be futile because
Plaintiff lacks standing to bring her proposed claims for injunctive and declaratory relief.
Specifically, Defendants maintain that because Plaintiff is no longer incarcerated at the Indiana
Women’s Prison, she lacks standing to pursue injunctive relief as to the prison’s policy.
In reply, Plaintiff contends that her proposed claims falls under the “capable of repetition
yet evading review” exception to the standing doctrine because her claims are based on her prior
pregnancy. 1 [Dkt. 26 at 1.]
Plaintiff also argues that the Court should permit Plaintiff to amend her complaint and require a separate
briefing on the issues of standing and mootness. But a motion to amend pleadings is properly denied if the
new claim “could not survive a . . . motion to dismiss.” Foster, 545 F.3d at 584 (internal quotation
omitted). Perhaps most critically, Plaintiff does not dispute any of the facts that are material to deciding
this Motion—namely, Plaintiff’s status as a formerly-incarcerated individual—which otherwise presents
a wholly legal question. See Collier v. Caraway, No. 2:14-CV-00365-JMS-MJD, 2017 WL 347481, at *1
n.3 (S.D. Ind. Jan. 24, 2017). Plaintiff is not entitled to another crack at briefing these issues.
Justiciability is “the threshold question in every federal case, determining the power of
the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Under Article III of
the Constitution, federal courts have jurisdiction over “cases and controversies,” but before a
court can evaluate the merits of a case, it must first establish whether the parties have “standing
to sue.” Whitmore v. Arkansas, 495 U.S. 149, 154-55 (1990). Standing is the aspect of
justiciability that assesses whether the plaintiff has a personal stake in the outcome of the case.
Warth, 422 U.S. at 498. There are three requirements to establish standing: injury in fact,
causation, and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The
injury must be “(a) concrete and particularized and (b) actual or imminent.” Id. (internal
quotation and citations omitted). The causal connection must be “fairly traceable to the . . .
defendant[,]” and “it must be likely as opposed to merely speculative that the injury will be
redressed by a favorable decision” Id. (internal quotation and citations omitted). The plaintiff
bears the burden to establish all the elements of standing. Apex Digital v. Sears Roebuck & Co.,
572 F.3d 440, 443 (7th Cir. 2009).
Even if there is standing at the beginning of a case, the mootness doctrine requires that a
justiciable controversy exist at all stages throughout the litigation. See Arizonans for Official
English v. Arizona, 520 U.S. 43, 67 (1997). “Federal courts may not decide questions that cannot
affect the rights of litigants in the case before them.” Chafin v. Chafin, 568 U.S. 165, 172 (2013)
(internal quotation and citation omitted). Therefore, a case is moot if the plaintiff no longer has a
personal stake in the outcome of the case. Los Angeles v. Lyons, 461 U.S. 95, 101 (1983)
(internal quotation and citation omitted).
However, cases involving pregnancy are subject to an exception to the typical standing
and mootness requirements. Pregnancy can happen at any time and is likely to come to term
before a trial can be completed. Roe v. Wade, 410 U.S. 113, 125 (1973). Because the termination
of a pregnancy would typically render the case moot, and “pregnancy litigation seldom [would]
survive much beyond the trial stage, . . . appellate review [would] be effectively denied” under
the traditional mootness analysis. Id. The Supreme Court has therefore concluded that
pregnancy is a “justification for a conclusion of nonmootness.” Id. Pregnancy is the paradigmatic
case of an ephemeral phenomenon that is “capable of repetition yet evading review”; without the
exception, cases based on pregnancy would be regularly become moot before they could be
Although the “capable of repetition yet evading review” exception applies in the
pregnancy context, the same standard does not apply to cases claiming injury from incarceration.
See Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011). Instead, “[p]ast exposure to illegal
conduct does not in itself show a present case or controversy regarding injunctive relief if . . .
unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488,
495-96 (1974). After being released, a former inmate must demonstrate a “realistic possibility
that [s]he [would] again be incarcerated in the same state facility and therefore be subject to the
actions” complained of in order to pursue a claim for injunctive or declaratory relief relating to
the incarceration. Maddox, 655 F.3d at 716. Thus, a former inmate may not seek injunctive
relief on the basis of a mere possibility that she could be charged with another crime. Id. at 497.
Plaintiff directs the Court to Loertscher v. Schimel in support of her contention that the
“capable of repetition yet evading review” exception may stretch into the incarceration context.
2015 WL 5749827, No. 14-cv-870-jdp, at *8 (W.D. Wis. Sept. 30, 2015). In Loertscher, the
court applied the exception to allow a formerly-incarcerated pregnant woman to pursue a claim
to enjoin Wisconsin Act 292, which authorized state child welfare authorities to treat a fetus as a
child if the mother’s use of controlled substances posed harm to the fetus. The child welfare
authorities became concerned that the plaintiff was using drugs and initiated legal proceedings to
protect the plaintiff’s unborn child. After the plaintiff refused to comply with certain orders, the
plaintiff was detained. Although all state proceedings were eventually terminated and the
plaintiff was unable to make any showing that she might again be arrested because of “the
number of contingent events that would have to occur, in sequence,” the district court determined
that the case was not moot. Id. at *9. Specifically, the court held that the situation fell within the
“capable of repetition yet evading review” exception because pregnancy was an “absolute
precondition for a proceeding under Act 292.” Id. at *11. Had the plaintiff “not been pregnant,
none of the legal proceedings in [the] case would have happened.” Id.
Loertscher stands for the proposition that the “capable of repetition yet evading review”
exception may apply more broadly where a plaintiff’s pregnancy and incarceration are
inextricably linked—that is, where the latter could not have happened without the former. But in
this case, the pregnancy and incarceration are not connected. Directive #03-12, at issue in this
case, requires the woman to be both pregnant and an inmate at the facility before it applies.
Plaintiff’s pregnancy and incarceration are separate, independent preconditions to the
applicability of the policy. Thus, one may be an inmate at the Indiana Women’s Prison without
being pregnant—unlike in Loertscher where the plaintiff could not have been subject to arrest
under Wisconsin Act 292 without first being pregnant. As Plaintiff’s incarceration was in no way
connected to her pregnancy, Loertscher provides no basis for deviating from the traditional
standing analysis in this case.
Plaintiff’s reliance on the “capable of repetition yet evading review” exception addresses
the effect of pregnancy on her standing to seek injunctive relief, but it does not address the effect
of her status as an unincarcerated person. That exception allows the Court to assume that the
issue of pregnancy may arise at any time, such that claims related thereto may be brought
whether a plaintiff is actually pregnant or not. But, under binding Seventh Circuit precedent, it
does not allow the Court to assume that the issue of imprisonment may similarly arise at any
time. Instead, under Maddox, Plaintiff must demonstrate a “realistic possibility” that she could be
incarcerated under the same circumstances. Plaintiff makes no argument that that there is a
reasonable possibility that she will return to Indiana Women’s Prison. Plaintiff therefore lacks
standing under Article III of the Constitution to pursue her proposed injunctive and declaratory
claims, rendering her proposed amendment futile.
For the foregoing reasons, the Court DENIES Plaintiff’s Motion for Leave to File an
Amended Complaint. [Dkt. 24.]
Dated: 30 JUN 2017
Service will be made electronically
on all ECF-registered counsel of record via
email generated by the court’s ECF system.
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