Opinion
CIVIL ACTION NO: 09-4129, SECTION: R (1).
November 30, 2009
ORDER
Before the Court is plaintiff Leonor Encalarde's Motion to Appeal Magistrate Judge Decision to District Court. ( See R. Doc. 24.) The Court, having reviewed de novo Encalarde's complaint (R. Doc. 1-3), her motion for leave to amend (R. Doc. 13), her motion for leave to correct her motion for leave to amend (R. Doc. 16), the record, the applicable law, the Magistrate Judge's report and recommendation (R. Doc. 22), and Encalarde's motion to appeal, hereby APPROVES the report and recommendation and adopts it as its opinion.
In addition to the reasons given in the report and recommendation, the Court finds it particularly relevant that although Encalarde has filed five separate briefs concerning her proposed amended complaint ( see R. Docs. 13, 16, 21, 24, 28), not one asserts that her failure to timely raise claims against Kyle Wedberg, Gary Woods, William Garibaldi and Bonnie Johnson was a mistake, either of law or fact. See Fed.R.Civ.P. 15(c)(1)(C)(ii). Nor do the briefs address why these particular proposed defendants knew or should have known that the action would have been brought against them but for the mistake. Id. Encalarde did not identify any of the proposed defendants by name in her original complaint, and she does not maintain that she was unable to do so at the time it was filed.
In fact, Encalarde's briefs appear to have studiously avoided these issues by selectively quoting and applying the requirements of Rule 15(c). ( See, e.g., R. Docs. 13 at 2, 21 at 3, 24 at 6, 28 at 1.) Encalarde focuses on whether the proposed defendants knew this action was pending, but she entirely ignores the second prong of Rule 15(c)(1)(C), which requires that a proposed defendant must have "known that the action would have been brought against it, but for a mistake concerning the proper party's identity." Fed.R.Civ.P. 15(c)(1)(C)(ii). The Court infers from Encalarde's silence that the decision to file suit against only the New Orleans Center for Creative Arts/Riverfront ("NOCCA") was intentional and not a mistake. See Sanders-Burns v. City of Plano, 578 F.3d 279, 289 (5th Cir. 2009) (inquiring whether plaintiff is "merely attempting a strategic change by amending her complaint").
The Court recognizes the fundamental principle that § 1983 actions may not be brought directly against the State. See, e.g., Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989). But this is not dispositive of whether Encalarde made a mere "mistake concerning the proper party's identity" by filing suit against NOCCA and not its officials. Fed.R.Civ.P. 15(c)(1)(C)(ii). Encalarde's original complaint may, for example, reflect a strategic decision to treat NOCCA as a "local government unit[]" that is subject to suit for monetary, declaratory, or injunctive relief. Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 690 (1978); see also Crane v. State of Tex., 759 F.2d 412, 421 (5th Cir. 1985) (county in Texas is "person" within meaning of § 1983 and subject to money damages); Nichols v. McKelvin, 52 F.3d 1067, at *4 (5th Cir. 1995) ("The district court correctly concluded that these claims were governed by [ Monell], in which the Supreme Court held that local governmental bodies — such as Parishes — are `persons' which can be sued under § 1983.") (per curiam). This is supported by the allegation in Encalarde's complaint that NOCCA is "an educational organization lawfully doing business within the Parish of Orleans" as opposed to an arm of the State of Louisiana (R. Doc. 1-3 at 1), as well as the generic references in her complaint to her "employer" and "supervisors" but not to any of the proposed defendants ( id. at 2-3). The Court need not speculate as to Encalarde's legal theories. The Court simply finds that Encalarde's initial failure to name Kyle Wedberg, Gary Woods, William Garibaldi and Bonnie Johnson as § 1983 defendants was not of a nature that the Court should sua sponte infer that she made a "mistake concerning the proper party's identity." Fed.R.Civ.P. 15(c)(1)(C)(ii).
Because Encalarde has elected not to address these issues in her various briefs, the Court presumes her decision to name NOCCA and not its individual employees was not a mistake. Accordingly, her claims against Kyle Wedberg, Gary Woods, William Garibaldi and Bonnie Johnson do not relate back to her original complaint under Rule 15(c), and they are prescribed. Her proposed amended complaint is therefore futile and must be rejected.
For the reasons stated, and for the reasons in the report and recommendation, Encalarde's motion for leave to amend and motion for leave to correct her motion to amend are DENIED.