McCoy (ID 76894) v. Aramark Correctional Services et al

Filing 55

MEMORANDUM AND ORDER ENTERED: Plaintiff's Motion to Amend 48 is granted in part and denied in part. It is granted in all respects except that the Kansas Department of Corrections is immune from suit and cannot be added as a defendant. Plaint iff's claim for injunctive relief is construed as one against Defendant Berry in her official capacity. The Clerk's Office is directed to redact paragraph 11 from page 4 of Doc. 48-3 and file it as Plaintiff's Third Amended Complaint. Signed by Magistrate Judge David J. Waxse on 06/14/17.Mailed to pro se party DeRon McCoy, Jr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DERON MCCOY, Jr.,
Plaintiff,
v.

Case No. 16-3027-DJW-CM

ARAMARK CORRECTIONAL SERVICES,
et al.,
Defendants.

MEMORANDUM AND ORDER
Before the Court is Plaintiff’s Motion to Amend (Doc. 48). This is Plaintiff’s third
attempt at amending his Complaint,1 which was filed in January 2016. His latest amendment
consists of (1) adding the Kansas Department of Corrections (“KDOC”) as a defendant, (2)
adding, in light of the Martinez Report,2 Defendant Dockendorff to his claim regarding
purchasing non-kosher food, (3) correcting the spelling of Defendant M. Gilly to M. Fellig.3
Only Defendant Patricia Berry responded to Plaintiff’s motion to amend (Doc. 54). Plaintiff did
not reply, and the time to do so has passed. For the reasons below, the Court grants in part and
denies in part Plaintiff’s motion.
Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings before trial.
It provides that the parties may amend a pleading once “as a matter of course” before trial if they

1

Doc. 1.

2

Doc. 48.

3

The correct spelling of the Rabbi’s name remains unclear to the Court. Plaintiff suggests that his name
should be spelled “Fellig”—or that’s how the Court perceives Plaintiff’s handwriting. Indeed, some of Plaintiff’s
exhibits show a signature that also looks like Fellig. But Plaintiff proceeds to use Gilly throughout his Third
Amended Complaint. And the Rabbi, who is represented by counsel, has not, as far as the Court can tell, disavowed
the spelling “Gilly” as reflected on the docket sheet. In fact, the Rabbi’s motion to dismiss expressly uses “Rabbi
M. Gilly.” To the extent Plaintiff has erred, the Rabbi is welcome to correct his name for the record by noticing the
Court.

do so within (A) 21 days after serving the pleading, or (B) “if the pleading is one to which a
responsive pleading is required,” 21 days after service of the responsive pleading or a motion
under Fed. R. Civ. P. 12(b), (e), or (f), whichever is earlier.4 Other amendments are allowed
“only with the opposing party’s written consent or the court’s leave.”5 Rule 15(a)(2) also
instructs that the court “should freely give leave when justice so requires.”6 The court’s decision
to grant leave to amend a complaint, after the permissive period, is within the trial court’s
discretion and will not be disturbed absent an abuse of that discretion.7 The court may deny leave
to amend upon a showing of “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.”8
Plaintiff seeks to add KDOC as a defendant in this case, seeking money damages and
injunctive relief for the department’s alleged violation(s) of the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”).9 Defendant Berry argues this amendment is futile
because the claims against KDOC are barred by sovereign immunity. The Court agrees. With
respect to money damages, the Eleventh Amendment, and the concept of sovereign immunity it
embodies, bars suit against states for money damages.10 A party’s capacity to sue or be sued in
federal court is determined by state law.11 Kansas law does not authorize KDOC to be sued.12

4

Fed. R. Civ. P. 15(a)(1).

5

Fed. R. Civ. P. 15(a)(2).

6

Id.; accord Foman v. Davis, 371 U.S. 178, 182 (1962).

7

Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006).

8

Id. (quoting Foman, 371 U.S. at 182).

9

42 U.S.C. §§ 2000cc, et seq.

10

Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Elephant Butte Irr.
Dist. of New Mexico v. Dep’t of Interior, 160 F.3d 602, 607 (10th Cir. 1998).
11

Fed. R. Civ. P. 17(b)(2).

2

Therefore, KDOC is immune from suit for money damages. With respect to his claim of
injunctive relief against KDOC, the Tenth Circuit states that “[t]he only relief available to
[Plaintiff] under RLUIPA is declaratory and injunctive relief against defendants in their official
capacities.”13 Thus, the Court finds Plaintiff’s claim(s) for injunctive relief against KDOC are
also barred by sovereign immunity.
However, as Defendant Berry points out, Plaintiff has named a KDOC employee in her
official capacity—herself. Defendant Berry offers a lackluster defense, merely questioning
whether she is in a position to ensure injunctive relief is carried out.14 The Court appreciates her
candor, but respectfully disagrees with her position. For purposes of this motion, the Court finds
that she is in a position to ensure injunctive relief is carried out. Defendant Berry is a contract
compliance manager with the KDOC and oversees the contract with Defendant Aramark
Correctional Services. Two examples of the way Defendant Berry could effectuate injunctive
relief spring to mind: (1) because she oversees the contract(s) with Defendant Aramark, she
could alter, terminate, or enforce compliance with Aramark’s contracts should it (or KDOC) be
found liable for a RLUIPA violation; (2) similarly, she could also enforce RLUIPA compliance
with other food vendors. In other words, Defendant Berry is in a supervisory role, just perhaps
not the typical kind contemplated by the cases she cited. The Court therefore finds that

12

Grayson v. Kansas, No. CIV.A. 06-2375-KHV, 2007 WL 1259990, at *3 (D. Kan. Apr. 30, 2007)
(finding K.S.A. § 75-5203 does not authorize KDOC to sue or be sued).
13

Warner v. Patterson, 534 F. App’x 785, 788 (10th Cir. 2013) (citing Warner v. Patterson, 534 F. App’x
785, 788 (10th Cir. 2013) (“States, in accepting federal funding, do not consent to waive their sovereign immunity to
private suits for money damages under RLUIPA....”)).
14

See, e.g., Grayson v. Goetting, No. 15-CV-00198-NJR, 2015 WL 887800, at *4 (S.D. Ill. Feb. 27, 2015)
(“[T]he proper parties in a claim for injunctive relief include the supervisory government officials who would be
responsible for ensuring injunctive relief is carried out.”); Kay v. Friel, No. 2:06-CV-23 TS, 2007 WL 295556, at *4
(D. Utah Jan. 26, 2007) (dismissing RLUIPA injunctive relief claims when asserted against defendants who were
not able to provide the plaintiff the relief he sought).

3

Plaintiff’s claim for injunctive relief is not wholly futile, and the Court construes his claim for
injunctive relief as one properly asserted against Defendant Berry in her official capacity.
Defendant Berry also argues the Court should deny Plaintiff’s amendment because it is
untimely. She is correct that Plaintiff’s proposed amendment comes a year and four months after
the filing of this case, and she is correct that Plaintiff offers no explanation for the delay in
asserting this amendment. Berry also complains that Plaintiff’s latest attempt takes what
currently is a fifteen-page Second Amended Complaint and turns it into a sixty-four page Third
Amended Complaint, but notes that he goes into greater detail on his causes of actions against
Defendants. While the Court largely agrees with her sentiment regarding Plaintiff’s repeated
amendments, the Court will nevertheless permit the amendment. Plaintiff’s latest proposed
amendment comes approximately two months after KDOC filed its Martinez Report.15 Some of
the delay is because Interested Party KDOC requested and received two 60-day extensions of
time in filing the Martinez Report,16 which had been ordered on August 31, 2016.17 On these
facts, the Court declines to find undue delay. But Plaintiff is advised that further amendments
may be viewed with more skepticism.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion to Amend
(Doc. 48) is granted in part and denied in part. It is granted in all respects except that the Kansas
Department of Corrections is immune from suit and cannot be added as a defendant. Plaintiff’s
claim for injunctive relief is construed as one against Defendant Berry in her official capacity.
The Clerk’s Office is directed to redact paragraph 11 from page 4 of Doc. 48-3 and file it as
Plaintiff’s Third Amended Complaint.

15

Doc. 41.

16

Docs. 34 & 38.

17

Doc. 17.

4

Dated June 14, 2017, at Kansas City, Kansas.
s/ David J. Waxse
David J. Waxse
U.S. Magistrate Judge

5