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Wilger v. Department of Pensions & Security of Alabama

United States Court of Appeals, Fifth Circuit
Apr 13, 1979
593 F.2d 12 (5th Cir. 1979)

Summary

holding that plaintiffs should be allowed to amend their complaint, which had been dismissed based on the 11th Amendment and not the merits, to add additional parties

Summary of this case from Brown v. Kastle Systems of Texas LLC

Opinion

No. 78-1478.

April 13, 1979.

Anthony M. Wilger, pro se.

Martha D. Wilger, pro se.

Jane de Lissovoy, John P. McClusky, Montgomery, Ala., for Legal Services Corp. of Alabama.

William J. Baxley, Atty. Gen., Jamie L. Pettigrew, Mary Lee Stapp, Clyde P. McLendon, Asst. Attys. Gen., Montgomery, Ala., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Alabama; Frank M. Johnson, Jr., Chief Judge.

Before TUTTLE, TJOFLAT and HILL, Circuit Judges.


Anthony M. Wilger and his wife, Martha, brought this appeal after their pro se complaint against the Department of Pensions and Security for the State of Alabama (the Department) for damages and equitable relief based upon the Department's removal of eight of their children from their custody was dismissed. For the reasons set forth below, we remand the case to the district court.

The background to this appeal is somewhat involved. The Wilgers moved from Wisconsin to Alabama in 1969, and have had frequent contacts with the Department since that time. The Department feels that the Wilgers are not properly able to care for most of their children; at various times and in various state court proceedings the Department has been granted custody of eight Wilger children.

On December 14, 1977, the Wilgers filed their pro se complaint in district court claiming $1,000,000,000 in damages from the Department and equitable relief. On January 5, 1978, the Department filed a motion to quash and vacate and set aside service of process and to dismiss. Numerous grounds for dismissal were alleged, including improper service of process, failure to state a claim upon which relief could be granted, lack of federal court jurisdiction because of the eleventh amendment, U.S. Const. amend. XI, and lack of subject matter jurisdiction. After the Wilgers filed an amended complaint, record at 23-24, and various other pleadings were generated, the court dismissed the Wilgers' action. In its order of January 22, 1978, the court stated: "Upon consideration of the motion to dismiss filed in this case by the defendant Department of Pensions and Security for the State of Alabama on January 5, 1978, it is ORDERED that said motion be and is hereby granted and this cause be and is hereby dismissed." Id. at 43. It is this order of dismissal that is now before us.

We note that the court below gave no grounds for its order of dismissal and failed to specify that the dismissal was with prejudice. We further observe that the motion to dismiss set forth many potential grounds for dismissal. We assume that the dismissal of this action was predicated upon the eleventh amendment, see, e.g., Quern v. Jordan, ___ U.S. ___, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), and not based upon the merits of the Wilgers' claim ( i.e., it was without prejudice). In their pro se complaint the Wilgers made allegations which indicate that there may be individuals (whether state officials or others) who are amenable to suit in federal court. The Wilgers should be allowed to amend their complaint in order to add such parties-defendant as they choose to name. Accordingly, we remand this case to the district court with the direction that it accord the Wilgers a reasonable opportunity to amend their complaint and add parties-defendant to the action. As for the Department, the claim for damages against it stands dismissed.

AFFIRMED IN PART AND REMANDED IN PART WITH DIRECTIONS.


Summaries of

Wilger v. Department of Pensions & Security of Alabama

United States Court of Appeals, Fifth Circuit
Apr 13, 1979
593 F.2d 12 (5th Cir. 1979)

holding that plaintiffs should be allowed to amend their complaint, which had been dismissed based on the 11th Amendment and not the merits, to add additional parties

Summary of this case from Brown v. Kastle Systems of Texas LLC

affirming dismissal of suit but remanding for plaintiff to add additional defendants

Summary of this case from Edison v. Douberly

remanding to provide "reasonable opportunity to amend" where "in their pro se complaint the [plaintiffs] made allegations which indicate that there may be individuals (whether state officials or others) who are amenable to suit in federal court"

Summary of this case from Donald v. Cook County Sheriff's Dept

In Wilger v. Department of Pensions and Security for the State of Alabama, 593 F.2d 12 (5th Cir. 1979), the district court had dismissed the complaint on Eleventh Amendment grounds and there is no indication in the appellate court opinion that the plaintiffs ever filed for leave to amend to change defendants.

Summary of this case from Berndt v. Tennessee
Case details for

Wilger v. Department of Pensions & Security of Alabama

Case Details

Full title:ANTHONY M. WILGER AND MARTHA D. WILGER, PLAINTIFFS-APPELLANTS, v…

Court:United States Court of Appeals, Fifth Circuit

Date published: Apr 13, 1979

Citations

593 F.2d 12 (5th Cir. 1979)

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