Stelly v. Department of Public Safety and Corrections Louisiana State, Office of State Police

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JOHN R. STELLY, II * CIVIL ACTION NO. 23-772

*

VERSUS * SECTION: “T”(1)

*

STATE OF LOUISIANA THROUGH * JUDGE GREG G. GUIDRY

DEPARTMENT OF PUBLIC SAFETY *

AND CORRECTIONS, OFFICE OF * MAGISTRATE JUDGE

STATE POLICE * JANIS VAN MEERVELD

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ORDER AND REASONS

Before the Court is plaintiff’s Motion for Leave of Court to File Second Amended

Complaint and Jury Demand. (Rec. Doc. 42). Because leave to amend should be freely given when

justice requires and because the Court finds that the proposed amendment to add claims for

unlawful employment discrimination against two state officials in their individual capacities under

42 U.S.C. § 1981 is not clearly futile, the Motion for Leave is GRANTED. Stelly’s Second

Amended Complaint shall be entered into the record.

Background

Plaintiff John R. Stelly, II was employed by the State of Louisiana, Department of Public

Safety and Corrections, Office of State Police (“LSP”). He is White. In this lawsuit, he alleges that

he was denied promotion from lieutenant to captain on numerous occasions because of race

discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,

and 42 U.S.C. § 1981. He alleges further that he was constructively discharged in violation of these

statutes as a result of the repeated failures to promote.

Stelly filed his original Complaint on March 1, 2023. LSP filed a motion to dismiss the

Complaint arguing that his §1981 and Title VII claims are time barred and that he failed to state a

claim because he did not allege that he had the specific qualifications sought for the captain

positions, because he had not alleged that the LSP failed to provide a legitimate, nondiscriminatory

reason for his failure to be promoted, and because the facts alleged are insufficient to establish

constructive discharge. It also filed a motion to stay discovery pending the motion to dismiss.

Before the District Court could rule on these motions, Stelly filed his First Amended Complaint,

mooting the motion to dismiss and motion to stay. The First Amended Complaint incorporated

some additional factual allegations, additional legal argument, and a request for punitive damages.

LSP filed a new motion to dismiss, arguing not only that Stelly’s §1981 and Title VII

claims were time barred and that he has failed to state a claim, but also that his § 1981 claims must

be dismissed on the grounds of sovereign immunity. Again LSP filed a motion to stay discovery

pending a ruling on the motion to dismiss. Before the motion to dismiss went under submission,

Stelly filed the present Motion for Leave of Court to File Second Amended Complaint. He seeks

to substitute Colonel Kevin Reeves and Colonel Lamar Davis for the LSP as defendants to his

§1981 claim to circumvent the sovereign immunity argument raised by LSP. He alleges that

Reeves—who is White—was Superintendent through October 30, 2020, and Davis—who is

Black—was Superintendent thereafter. He alleges that it was Reeves who failed to promote him

on October 20, 2020, and that it was Davis who failed to promote him on November 24, 2021, on

May 19, 2021, and twice on July 9, 2021. He alleges that they used race as a motivating factor in

doing so.

LSP opposes the Motion for Leave. It argues that the amendment is futile because the Fifth

Circuit has questioned whether a cause of action exists against a municipal officer in his individual

capacity under § 1981. Further, it argues the amendment would be futile because Stelly has not

plead sufficient facts to overcome the qualified immunity of Reeves and Davis. It submits that

Stelly fails to allege that Reeves or Davis personally made the decision not to promote Stelly. It

points out that under the publicly available LSP Policies and Procedures, promotion decisions are

made by panels of at least six individuals including the Superintendent or his designee as

chairperson. Thus, it submits, at best, Reeves or Davis as Superintendent may have been a member

of the promotional panel that decided whether Stelly would be promoted to captain.

Law and Analysis

1. Standard for Granting Leave to Amend

Under Federal Rule of Civil Procedure 15(a)(2), when the time period for amending a

pleading as a matter of course has passed, a party may amend its pleadings by consent of the parties

or by leave of court. “The court should freely give leave when justice so requires.” Fed. R. Civ.

Proc. 15(a)(2). Thus, the United States Court of Appeals for the Fifth Circuit instructs that the

“district court must possess a ‘substantial reason’ to deny a request for leave to amend.” Smith v.

EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004). Nonetheless, “that generous standard is tempered

by the necessary power of a district court to manage a case.” Yumilicious Franchise, L.L.C. v.

Barrie, 819 F.3d 170, 177 (5th Cir. 2016) (quoting Schiller v. Physicians Res. Grp. Inc., 342 F.3d

563, 566 (5th Cir. 2003)). The court may consider numerous factors when deciding whether to

grant a motion for leave to amend, including “undue delay, bad faith or dilatory motive on the part

of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of allowance of the amendment, and futility of the

amendment.” Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003).

Where the court ordered deadline for amending pleadings has passed, that schedule “may

be modified” to allow for additional amendments “only for good cause and with the judge’s

consent.” Fed. R. Civ. Proc. 16(b)(4); see S&W Enterprises, L.L.C. v. SouthTrust Bank of

Alabama, NA, 315 F.3d 533, 536 (5th Cir. 2003) (“We take this opportunity to make clear that

Rule 16(b) governs amendment of pleadings after a scheduling order deadline has expired.”).

When determining whether the movant has shown good cause, the Court considers “(1) the

explanation for the failure to [timely move for leave to amend]; (2) the importance of the

[amendment]; (3) potential prejudice in allowing the [amendment]; and (4) the availability of a

continuance to cure such prejudice.’ ” S&W Enterprises, 315 F.3d at 536 (quoting Reliance Ins.

Co. v. Louisiana Land & Expl. Co., 110 F.3d 253, 257 (5th Cir. 1997)) (alterations in original).

2. Analysis

At the time Stelly filed his Motion for Leave to Amend, the Scheduling Order’s deadline

to amend pleadings—July 14, 2023—had already passed. But since that time, the District Court

has continued the trial and all pretrial deadlines. It is not clear, however, that the deadline to amend

pleadings has been reset. Accordingly, the Court first addresses whether Stelly has established

good cause to amend his pleadings after the expiration of the deadline.

The Court finds that Stelly has established good cause for the late filing. He did not know

until July 20, 2023, that LSP would raise a sovereign immunity defense. Indeed, LSP did not do

so in its first motion to dismiss. To the extent that Stelly may have a viable §1981 claim against

the individual defendants, the proposed amendment is important because Stelly appears to concede

that sovereign immunity bars such a claim against the LSP. Importantly, the Court finds no

prejudice in allowing the amendment. Now that the trial has been continued and no new trial date

has yet been set, the current parties will not be prejudiced. Having to defend a claim is not, in and

of itself, an undue prejudice. Accordingly, Stelly has established good cause for his out of time

motion for leave.

The Court next turns to the Rule 15 standard. Leave to amend must be freely granted when

justice so requires. LSP argues that Stelly’s amendment is futile. Without foreclosing the

possibility that defendants Reeves and Davis might succeed in moving to dismiss the complaint,

the court finds that the possible futility is not sufficient to preclude the amendment itself. See, e.g.,

Tripp v. Pickens, No. 17-CV-0542, 2018 WL 3059614, at *3 (W.D. La. June 20, 2018) (“The

court's ability to decide the viability of the claims at issue will benefit from full briefing within the

context of a motion that is devoted to the substantive issues.”).

First, the Court finds the “tension” observed by LSP may not be tight enough to ensnare

this case. In Oden v. Oktibbeha County, Miss., the Fifth Circuit held that a municipal officer could

not be held liable in his individual capacity under §1981 because the allegedly discriminatory

actions were official decisions. 246 F.3d 458, 464–65 (5th Cir. 2001). In so holding, the Fifth

Circuit analogized to Title VII precedent. E.g., Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir.

1994); Harvey v. Blake, 913 F.2d 226, 227 (5th Cir. 1990). But Title VII only imposes liability on

the “employer,” a term defined by the statute itself. Smith v. Amedisys Inc., 298 F.3d 434, 448

(5th Cir. 2002) (“[T]here is no individual liability for employees under Title VII.”). Section 1981

is not limited to “employers.” Importantly, Oden did not mention the Fifth Circuit’s earlier holding

in Faraca, where a state official (as we have in this case) was personally liable under §1981 for

instructing a subordinate not to hire a highly qualified candidate because he had an interracial

marriage. 506 F.2d 956, 959 (5th Cir. 1975). Further, in recent years, district courts in the Fifth

Circuit have recognized the possibility of individual liability for employment discrimination under

§ 1981. Thomas v. Grundfos, CBS, No. 4:18-CV-0557, 2019 WL 7838172, at *1 (S.D. Tex. Sept.

20, 2019), report and recommendation adopted, No. CV H-18-557, 2020 WL 553665 (S.D. Tex.

Feb. 4, 2020), aff'd, 2021 WL 4693055 (5th Cir. Oct. 7, 2021) (“[A]n individual may be liable

under § 1981 if the individual is ‘essentially the same’ as the employer in exercising authority over

the plaintiff.”); Dyas v. City of Shreveport, No. CV 16-1607, 2017 WL 3711898, at *7 (W.D. La.

Aug. 28, 2017) (“To state a claim under section 1981 against the individual defendants, Plaintiffs

must specifically allege how each of the individual defendants has racially discriminated against

them with respect to one of the protected rights.”); King v. Bd. of Trustees of State Institutions of

Higher Learning of Mississippi, No. 3:11-CV-403-CWR-FKB, 2014 WL 1276477, at *12 (S.D.

Miss. Mar. 27, 2014) (“Liability under Section 1981 liability ‘will lie against an individual

defendant if that individual is essentially the same as the State for the purposes of the complained-

of conduct.’” (quoting Foley v. Univ. of Houston Sys., 355 F.3d 333, 337 (5th Cir. 2003))). And

yet, LSP has cited no example of a court dismissing a claim for individual liability under § 1981

on the basis that no such claim exists. To the extent the availability of a claim for individual

liability under §1981 must be decided, the Court finds that the matter would be better resolved

before the District Court when the argument is raised in the first instance in a motion and not in

opposition.

LSP also urges this Court to find that Stelly’s claims against Reeves and Davis are futile

because they will be barred by qualified immunity. Indeed, “[r]acial discrimination claims brought

under § 1981 are subject to the defense of qualified immunity.” Todd v. Hawk, 72 F.3d 443, 445

n.7 (5th Cir. 1995); see Wicks v. Mississippi State Emp. Servs., 41 F.3d 991, 993–94 (5th Cir.

1995) (applying qualified immunity to §1981 employment discrimination claim against

Mississippi Statement Employment Service and plaintiff’s former supervisor there). “The doctrine

of qualified immunity protects government officials ‘from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231, (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Courts have held that an employee has a clearly

established right to be free from racial discrimination in employment and that racial discrimination

in the workplace is not objectively reasonable under clearly established law. See King, 2014 WL

1276477, at *13. LSP argues Stelly’s allegations of the personal involvement of Reeves and Davis

are too speculative. Again, the Court finds that the issue of whether Stelly’s claims against Reeves

and Davis are barred by qualified immunity is better decided by the District Court when the issue

has been raised in the first instance by a motion.

LSP does not argue that Stelly has engaged in undue delay or is acting in bad faith, nor that

he has repeatedly failed to cure deficiencies by previously allowed amendment. The Court finds

that it is the in the interest of justice to allow the amendment.

Conclusion

Because leave to amend should be freely given when justice requires and because the Court

finds that the proposed amendment to add claims for unlawful employment discrimination against

two state officials in their individual capacities under 42 U.S.C. § 1981 is not clearly futile, Stelly’s

Motion for Leave of Court to File Second Amended Complaint and Jury Demand (Rec. Doc. 42)

is GRANTED. Stelly’s Second Amended Complaint shall be entered into the record.

New Orleans, Louisiana, this 31st day of August, 2023.

Danie vam Mocowel at

Janis van Meerveld

United States Magistrate Judge