Fuller v. State of Kansas, Department of Children & Families
MEMORANDUM AND ORDER denying 34 Motion for Review. Signed by District Judge Daniel D. Crabtree on 7/11/17. (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CLARA R. FULLER,
Case No. 16-cv-2415-DDC-JPO
STATE OF KANSAS, DEPARTMENT
OF CHILDREN & FAMILIES,
LEWIS KIMSEY, LISA LOCKE,
and SANDRA KIMMONS in their
individual and official capacities,
MEMORANDUM AND ORDER
This 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
Plaintiff 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.
Plaintiff 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.
Plaintiff 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.
DCF 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.
Rule 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).
A. DCF and Additional Defendants
DCF’s 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.
B. Title VII Claim
DCF 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.
DCF, in its Motion to Review, asserts that plaintiff has not served the four new
defendants with the Amended Complaint and, even if they had, would not have had time to
respond within the time allotted in the court’s March 3, 2017 Order. But plaintiff proceeds in
forma pauperis. Doc. 4. Federal Rule of Civil Procedure 4 provides that the court must order
that service be made by a United States marshal or deputy marshal or by a person specially
appointed by the court “if the plaintiff is authorized to proceed in forma pauperis.” So, the court
directs the Clerk of the Court to prepare and issue a summons, and the Marshals to serve this
new summons along with a copy of the Amended Complaint (Doc. 33) to the additional
defendants—Stephanie Henderson, Lewis Kimsey, Lisa Locke, and Sandra Kimmons—if they
have not done so yet. Once served, the defendants should file any responsive pleadings
according to the rules outlined in Federal Rule of Civil procedure 12(a).
IT IS THEREFORE ORDERED BY THE COURT THAT DCF’s Motion to Review
Magistrate Order of March 3, 2017 (Doc. 31), is denied.
IT IS FURTHER ORDERED THAT the court directs the Clerk of the Court to prepare
and issue a summons, and the Marshals to serve this new summons along with a copy of the
Amended Complaint (Doc. 33) to the additional defendants—Stephanie Henderson, Lewis
Kimsey, Lisa Locke, and Sandra Kimmons—if they have not done so. The Federal Rules will
govern the deadlines for responsive pleadings.
IT IS SO ORDERED.
Dated this 11th day of July, 2017, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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