Juana Gonzalez-Koeneke v. Donald West , 791 F.3d 801 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2619
JUANA I. GONZALEZ-KOENEKE,
Plaintiff-Appellant,
v.
DONALD WEST, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:12-cv-50311 — Frederick J. Kapala, Judge.
____________________
SUBMITTED MAY 28, 2015 — DECIDED JULY 1, 2015
____________________
Before BAUER, EASTERBROOK, and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge. Juana I. Gonzalez-Koeneke brought
this action pro se, alleging that her government employer
discriminated against her, in violation of Title VII of the Civ-
il Rights Act of 1964, 42 U.S.C. § 1981, and 42 U.S.C. § 1983.
Approximately ten weeks later, she filed an amended com-
plaint. After she had retained counsel and after the defend-
ants had filed a motion to dismiss, Ms. Gonzalez-Koeneke
2 No. 14-2619
filed a motion requesting leave to file a second amended
1
complaint. The district court granted the motion.
The defendants moved to dismiss the second amended
complaint for failing to state a claim upon which relief could
be granted. The court granted the defendants’ motion and
dismissed the case with prejudice, in part relying on its
standing order that provides that a dismissal will be with
prejudice unless a party requests an opportunity to amend
in its response to the motion to dismiss. Ms. Gonzalez-
Koeneke then filed a motion to set aside the judgment and to
amend her complaint. The district court denied the motion,
stating that Ms. Gonzalez-Koeneke had not explained how
she would amend the complaint to cure the deficiencies
identified in the court’s dismissal order.
Ms. Gonzalez-Koeneke now appeals the district court’s
judgment, challenging its order dismissing the case with
prejudice and its order denying her motion to set aside the
judgment and to amend her complaint. We affirm the judg-
ment of the district court. Ms. Gonzalez-Koeneke never has
explained, in the district court or in this court, how she
would amend her complaint to state a claim for relief.
1 In her second amended complaint, Ms. Gonzalez-Koeneke named as
defendants Donald West, Ron Carey, Debbie Sharp, Gregg Wilson, and
the Board of Education of Rockford School District No. 205.
No. 14-2619 3
I
BACKGROUND
A.
Before her termination in 2011, Ms. Gonzalez-Koeneke
had worked, for twelve years, as a bus driver for the Board
of Education of Rockford School District No. 205 (“the Dis-
trict”). While driving her bus, she experienced a series of
problems with the behavior of children on her bus and, con-
sequently, filed incident reports with Debbie Sharp, another
school district employee. When Sharp failed to respond to
the reports, Ms. Gonzalez-Koeneke went to Donald West,
the district’s terminal manager, in an attempt to resolve the
problem.
Gregg Wilson, whose title in the school district is not dis-
closed in the record, told Ms. Gonzalez-Koeneke that she did
not know how to discipline the children. Wilson later sus-
pended her for two days for failing to perform a proper
pretrip inspection of her bus. Ms. Gonzalez-Koeneke claims
that her suspension was actually in retaliation for having
told West that Sharp did not respond to her earlier reports.
In May 2011, during her suspension, her union steward
told her that Wilson wanted her to quit or to face the sus-
pension of her bus-driver permit. Ms. Gonzalez-Koeneke
claims that she never was given the opportunity to quit be-
cause Wilson issued a “School Bus Driver Employer Notifi-
cation/Removal Form” that same day, which resulted in the
2
suspension of her bus-driver permit for three years. Shortly
2 R.36 at 3.
4 No. 14-2619
thereafter, Ms. Gonzalez-Koeneke was terminated based on
her suspended bus-driver permit.
B.
Ms. Gonzalez-Koeneke filed this action pro se on August
29, 2012. She alleged that the District and its management
had discriminated against her. Although she proceeded pro
se, she did have the advice of her attorney at the time of fil-
ing the complaint, as well as at the time of the filing of her
first amended complaint in November 2012. In the first
amended complaint, Ms. Gonzalez-Koeneke alleged that the
defendants had discriminated against her on the basis of her
3
color, national origin, and race.
Ms. Gonzalez-Koeneke subsequently retained new coun-
sel, who filed an appearance in June 2013. The following
day, the defendants filed a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6). Thirteen days later,
Ms. Gonzalez-Koeneke filed a motion for leave to file a sec-
ond amended complaint. The district court struck the mo-
3 In particular, Ms. Gonzalez-Koeneke alleged that she was “treated…
differently from others,” that she feared talking to Wilson because she
“thought he would be angry and fire” her, that she was suspended be-
cause Wilson thought that she “had not done [her] job,” and that she was
fired “because they had suspended [her] license for three years.” R.10 at
7. She then claimed that the defendants terminated and retaliated against
her because of her color, national origin, and race, in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and 42 U.S.C. § 1983. See
id. at 3–4.
No. 14-2619 5
tion in part because Ms. Gonzalez-Koeneke had failed to at-
tach a copy of the proposed second amended complaint. The
district court instructed her to file a response to the defend-
ants’ motion to dismiss or “a motion for leave to file a Sec-
ond Amended Complaint that is properly noticed for pre-
sentment and contains a copy of the proposed pleading as
4
an exhibit by August 16, 2013.”
Ms. Gonzalez-Koeneke refiled her motion for leave to file
a second amended complaint on that date and attached the
proposed complaint. The court then granted her leave to file
the complaint. This second amended complaint added alle-
gations that a 2005 suspension also was discriminatory and
that, by terminating Ms. Gonzalez-Koeneke, the defendants
5
had violated her Fourth and Fourteenth Amendment rights.
4 R.30.
5 Specifically, the complaint alleged that the defendants (1) violated her
rights under the Fourth Amendment by depriving her of her bus-driver
permit, (2) violated her rights under the Fourteenth Amendment “by
punishing her more severely for minor infractions of work rules than her
white counterparts for major infractions,” and (3) violated her rights un-
der 42 U.S.C. § 1981 “by retaliating against her for reporting Defendant
Debbie Sharp’s inaction to the terminal manager, Defendant Donald
West.” R.36 at 5. The second amended complaint included eleven counts
claiming: (1) that the District developed and maintained policies exhibit-
ing deliberate indifference to the constitutional rights of persons in their
employ, which caused the violation of Ms. Gonzalez-Koeneke’s rights
under 42 U.S.C. § 1983 (Count I); (2) that the individual defendants vio-
lated her constitutional rights under § 1983 (Counts II–V); (3) that the
individual defendants and the District violated her rights under § 1981
(Counts VI–IX); (4) that the District and the individual defendants con-
spired to violate her rights under § 1981 by creating a hostile work envi-
ronment (Count X); and (5) that the District was liable for the individual
(continued...)
6 No. 14-2619
In response to the filing of the second amended com-
plaint, the defendants filed a second Rule 12(b)(6) motion to
dismiss, citing multiple factual deficiencies in her allega-
6
tions. Ms. Gonzalez-Koeneke responded to that motion by
contending that her second amended complaint stated a
claim under each theory asserted. Notably, she did not sug-
gest that the supposed deficiencies identified in the defend-
ants’ motion could be cured by amendment, nor did she re-
quest leave to amend if the defendants’ motion were grant-
ed.
The district court granted the defendants’ motion and
dismissed Ms. Gonzalez-Koeneke’s case with prejudice. On
the merits, the court concluded that her Fourth Amendment
claims were defective because the loss of her bus driver’s li-
cense did not implicate the Fourth Amendment. The court
(...continued)
defendants’ actions under the doctrine of respondeat superior (Count
XI).
6 In their motion, the defendants contended that Ms. Gonzalez-Koeneke
failed to state a claim under § 1983 (Counts I–V) because she failed to
allege facts establishing a violation of her constitutional rights either by
the individual defendants or on the basis of a District policy or custom.
They further contended that she failed to state a claim under § 1981
(Counts VI–IX) because § 1981 claims cannot be brought against the Dis-
trict or the individual defendants in their official capacities and that, to
the extent that the claims were brought against the defendants in their
individual capacities, she failed to plead a prima facie case of retaliation
or allege that she participated in a protected activity. They next submit-
ted that the conspiracy allegations (Count X) were deficient because she
did not allege an agreement between the parties. Finally, the defendants
maintained that the District could not be held liable under a theory of
respondeat superior for any of the claims alleged (Count XI).
No. 14-2619 7
further decided that her Fourth Amendment claims against
the District failed because she never identified a violation of
her constitutional rights, much less a District policy or cus-
tom causing such a violation. It then concluded that her
equal protection claims failed because she did not allege that
she was discriminated against based on her race. Instead,
she alleged that she was retaliated against for complaining
to West about Sharp and that she was fired for not having a
7
bus driver’s license. For that same reason, the court decided
that Ms. Gonzalez-Koeneke’s § 1981 retaliation claims failed
to state a claim for relief. The court then concluded that she
failed to state a viable conspiracy claim because she did not
allege that she was harassed or ridiculed on account of her
race as required to make out a hostile work environment
claim, nor did she allege that the defendants entered into an
express agreement to violate her rights. Finally, the court de-
termined that her remaining claim failed because respondeat
superior liability was not available for constitutional torts
and that, even if the doctrine applied, she failed to allege an
underlying violation on which it could be premised.
Relying on its standing order, the district court dismissed
the case with prejudice because Ms. Gonzalez-Koeneke had
“not requested an opportunity to amend [her] complaint nor
attached a proposed amended complaint or otherwise ex-
plained any potential changes which would address the
8
shortcomings identified by the court.” The court concluded
7 In addition, the court decided that her equal protection claim based on
the 2005 suspension was time-barred.
8 R.59 at 8. The court’s standing order provides:
(continued...)
8 No. 14-2619
that it did “not see any exceptional circumstances which
9
would warrant sua sponte leave to amend.” The court en-
tered judgment the same day.
Ms. Gonzalez-Koeneke filed a motion under Federal Rule
of Civil Procedure 60(b)(6) requesting that the district court
set aside the judgment and allow her to file a third amended
complaint. She submitted that her prior attorney, who had
not filed an appearance but had assisted in the drafting of
the initial complaint and the first amended complaint, had
taken advantage of her. “Given that the Second Amended
Complaint was the instant counsel’s first attempt at getting
relief for the plaintiff,” she requested “that the court’s order
to dismiss be set aside, and that [she] be given an opportuni-
10
ty to amend.” She maintained that she had a meritorious
(...continued)
In the case of a Rule 12(b)(6) motion, if a plaintiff wishes
to retain an opportunity to amend the complaint follow-
ing an adverse decision of this court, plaintiff should re-
quest the court’s leave to replead in its response to de-
fendant’s Rule 12(b)(6) motion and inform the court of
how, consistent with the requirements of Rule 11, it
would amend the complaint. If a plaintiff fails to request
such relief in its response, and this court finds in favor of
the defendant, the dismissal will be with prejudice un-
less the court determines there are exceptional circum-
stances which would warrant leave to amend.
Id.
9 Id.
10 R.61 at 3.
No. 14-2619 9
claim and could “adequately present it” if “[g]iven the op-
11
portunity.”
The district court denied the motion, stating that
Ms. Gonzalez-Koeneke should not be permitted a fourth at-
tempt at drafting a complaint that sufficiently stated a claim
for relief because the litigation already had lasted over two
years. More importantly, the court stated, Ms. Gonzalez-
Koeneke failed to explain how a third amended complaint
would remedy the deficiencies identified in the court’s order
granting the motion to dismiss. The court explained that,
“[e]ven if this motion were a regular motion to amend under
Rule 15,…the court would deny such a motion due to the
lack of an opportunity to review the proposed amendments
12
to insure that the proposed new filing would state a claim.”
13
Ms. Gonzalez-Koeneke timely filed a notice of appeal.
11 Id.
12 R.62 at 1.
13
The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343.
We have jurisdiction to decide this appeal under 28 U.S.C. § 1291.
Following the filing of this appeal, Ms. Gonzalez-Koeneke’s counsel
failed to gain admission to practice before this court. Counsel filed a mo-
tion requesting that the court “postpone ruling on his application for
admission to the 7th Circuit Bar pending the outcome of the appeal of his
censure in a case that is still ongoing, and for leave to argue before this
court in the interim.” App. R. 32 at 1. We denied counsel’s motion and
vacated oral argument. The defendants subsequently filed a motion to
strike Ms. Gonzalez-Koeneke’s briefs and to dismiss the appeal.
Ms. Gonzalez-Koeneke responded by filing a motion to proceed pro se
and to adopt all briefs filed in this matter. We denied the defendants’
motion and granted Ms. Gonzalez-Koeneke’s motion to proceed pro se.
(continued...)
10 No. 14-2619
II
DISCUSSION
Ms. Gonzalez-Koeneke contends that the district court
erred by dismissing her complaint with prejudice and by
denying her motion for reconsideration, seeking to amend
14
her complaint after judgment was entered. As she did in
the district court, she maintains that, because her current
counsel had only one opportunity to draft a complaint, jus-
tice requires that she be given a fourth opportunity to file a
15
meritorious complaint.
(...continued)
The appeal thus is submitted on the briefs and the record. See Fed. R.
App. P. 34(a)(2)(C). Counsel was later admitted to practice before this
court and filed a certificate of interest.
14 Specifically, Ms. Gonzalez-Koeneke submits that dismissal with prej-
udice is only appropriate in circumstances involving delay or contuma-
cious conduct. She relies on cases addressing whether a district court
erred in dismissing a complaint as a sanction. See Appellant’s Br. 7 (quot-
ing Toney v. Rosewood Care Ctr., Inc., 62 Fed. App’x 697, 700 (7th Cir. 2003)
(considering whether the district court erred in sanctioning the plaintiff
under Rules 16(f) and 37(b)(2))). However, the “delay or contumacious
conduct” standard applies only in the context of sanctions. Cf., e.g., Salata
v. Weyerhaeuser Co., 757 F.3d 695, 699 (7th Cir. 2014) (applying “delay or
contumacious conduct” standard to dismissal for failure to prosecute
under Rule 41(b)). Because the district court did not dismiss her claim as
a sanction, her contentions miss the mark.
15Although Ms. Gonzalez-Koeneke appealed the district court’s decision
granting the defendants’ motion to dismiss, she does not challenge that
decision on appeal. The issue therefore is waived. See Trentadue v. Red-
mon, 619 F.3d 648, 654 (7th Cir. 2010).
No. 14-2619 11
A.
We begin by setting forth the principles that must guide
our decision. We review for an abuse of discretion a district
court’s decision to treat the dismissal of the complaint as one
with prejudice. See Indep. Tr. Corp. v. Stewart Info. Servs.
Corp., 665 F.3d 930, 943–44 (7th Cir. 2012). Similarly, we re-
view the denial of a motion for reconsideration for an abuse
of discretion. See Selective Ins. Co. of S.C. v. City of Paris, 769
F.3d 501, 507 (7th Cir. 2014).
Federal Rule of Civil Procedure 15 provides that, as a
general rule, a court “should freely give leave [to amend]
when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Su-
preme Court has pointedly told us that “this mandate is to
be heeded.” Foman v. Davis, 371 U.S. 178, 182 (1962). District
courts, nevertheless, “have broad discretion to deny leave to
amend where there is undue delay, bad faith, dilatory mo-
tive, repeated failure to cure deficiencies, undue prejudice to
the defendants, or where the amendment would be futile.”
Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008). “A mo-
tion to amend should state with particularity the grounds for
the motion and should be accompanied by the proposed
amendment.” Otto v. Variable Annuity Life Ins. Co., 814 F.2d
1127, 1139 (7th Cir. 1986). We have recognized, on many oc-
casions, that a district court does not abuse its discretion by
denying a motion for leave to amend when the plaintiff fails
to establish that the proposed amendment would cure the
deficiencies identified in the earlier complaint. See, e.g., Ar-
lin-Golf, LLC v. Vill. of Arlington Heights, 631 F.3d 818, 823
(7th Cir. 2011) (“After reviewing the record below and the
allegations on appeal, we have no reason to believe that an
amendment would not be futile in this case.”); Foster v.
12 No. 14-2619
DeLuca, 545 F.3d 582, 584 (7th Cir. 2008) (“[A] district court
may deny a motion to amend ‘if the proposed amendment
fails to cure the deficiencies in the original pleading, or could
not survive a second motion to dismiss….’” (quoting
Crestview Vill. Apartments v. United States Dep’t of Hous. & Ur-
ban Dev., 383 F.3d 552, 558 (7th Cir. 2004))).
Ordinarily, “[r]elief under Rules 59(e) and 60(b) are ex-
traordinary remedies reserved for the exceptional case.” Fos-
ter, 545 F.3d at 584. However, once the requirements of those
rules have been met, a plaintiff does not lose the ability to
amend a complaint under the liberal standard articulated in
Rule 15 simply because the court entered judgment and she
now must seek relief under Rule 59 or 60. See Runnion ex rel.
Runnion v. Girl Scouts of Greater Chicago & Nw. Ind., 786 F.3d
510, 521 (7th Cir. 2015) (“When the district court has taken
the unusual step of entering judgment at the same time it
dismisses the complaint, the court need not find other ex-
traordinary circumstances and must still apply the liberal
standard for amending pleadings under Rule 15(a)(2).”);
Twohy v. First Nat’l Bank of Chicago, 758 F.2d 1185, 1196 (7th
Cir. 1985) (“Even after entry of judgment on dismissal, how-
ever, assuming the requirements of Rule 59(e) or 60(b) have been
fulfilled, the liberal standard of Rule 15(a) still controls and
leave to amend shall be freely given when justice so re-
quires.” (alteration omitted) (emphasis added) (internal quo-
tation marks omitted)). In this situation, the liberal amend-
ment policy embodied in Rule 15 continues to govern a
court’s decision to dismiss a complaint with prejudice and
its consideration of a post-judgment motion to amend. As
we stated in Runnion:
No. 14-2619 13
[A] district court cannot nullify the liberal right
to amend under Rule 15(a)(2) by entering
judgment prematurely at the same time it dis-
misses the complaint that would be amended.
As with pre-judgment motions for leave to
amend, the district court must still provide
some reason—futility, undue delay, undue
prejudice, or bad faith—for denying leave to
amend, and we will review that decision under
the same standard we would otherwise review
decisions on Rule 15(a)(2) motions for leave to
amend.
Runnion, 786 F.3d at 522.
We will not reverse a district court’s decision, however,
when the court provides a reasonable explanation for why it
denied the proposed amendment. See id. at 521–22. A district
court acts within its discretion in denying leave to amend,
either by dismissing a complaint with prejudice or by deny-
ing a post-judgment motion, when the plaintiff fails to
demonstrate how the proposed amendment would cure the
deficiencies in the prior complaint. See Indep. Tr. Corp., 665
F.3d at 943–44 (holding that the district court did not abuse
its discretion by dismissing a complaint with prejudice
without allowing an opportunity to amend because the
plaintiff “did not offer any meaningful indication of how it
would plead differently”); Hecker v. Deere & Co., 556 F.3d
575, 591 (7th Cir. 2009) (holding that the district court did
not abuse its discretion by denying a motion for reconsidera-
tion requesting leave to amend the complaint “because the
plaintiff did not attach an amended complaint and did not
14 No. 14-2619
indicate the ‘exact nature of the amendments proposed’”
16
(quoting Twohy, 758 F.2d at 1189)).
B.
Here, as in Runnion, the district court dismissed the com-
plaint and entered judgment at the same time. However,
Ms. Gonzalez-Koeneke has failed, both in her post-trial mo-
tion and here on appeal, to provide a proposed amended
complaint or otherwise to explain how a third amended
complaint would cure the deficiencies identified in her sec-
ond amended complaint. At no point did she give the dis-
trict court a description of her amended complaint or pro-
duce a third amended complaint. And now, on appeal, she
only contends that her “second amended complaint was cur-
rent counsel’s ‘getting up to speed’ effort, and should not be
16 See also Leavell v. Illinois Dep’t of Nat. Res., 600 F.3d 798, 808 (7th Cir.
2010) (holding that the plaintiff’s complaint should be dismissed with
prejudice because she “ha[d] not suggested any way that she might
amend her pleading to cure the deficiency”); James Cape & Sons Co. v.
PCC Constr. Co., 453 F.3d 396, 401 (7th Cir. 2006) (rejecting the argument
that “the district court was required by Rule 15 to dismiss without preju-
dice and/or sua sponte grant leave to amend the complaint” in part be-
cause “[t]he district court could have quite reasonably believed that an
amended complaint would suffer the same fatal flaws as the one before
it” (emphasis in original)); Crestview Vill. Apartments v. United States Dep’t
of Hous. & Urban Dev., 383 F.3d 552, 558 (7th Cir. 2004) (holding that,
“[b]ecause Crestview did not attach its proposed amended complaint to
its motion for reconsideration or take the necessary steps to make its
proposed amendment a part of the record on appeal, we cannot mean-
ingfully assess whether its proposed amendment would have cured the
deficiencies in the original pleading”).
No. 14-2619 15
17
viewed in light of first counsel’s foibles.” Nowhere does
she address her proposed amendments or their merits. Giv-
en that she never has attempted to explain how she would
amend her complaint to state a claim for relief, the district
court did not abuse its discretion in dismissing her com-
plaint with prejudice and in denying her post-judgment mo-
18
tion to amend.
Conclusion
The judgment of the district court is affirmed.
AFFIRMED
17 Appellant’s Br. 9.
18 The district court explained that it dismissed Ms. Gonzalez-Koeneke’s
complaint with prejudice and denied her motion for reconsideration be-
cause she failed to explain how she would amend her complaint. This
explanation is an adequate basis for affirmance. We therefore have no
occasion to address the propriety of the district court’s standing order,
which Ms. Gonzalez-Koeneke contends conflicts with Rule 15. We note
that we recently explained that “[a] district court does not have the dis-
cretion to remove the liberal amendment standard by standing order or
other mechanisms requiring plaintiffs to propose amendments before the
court rules on a Rule 12(b)(6) motion on pain of forfeiture of the right to
amend.” Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw.
Ind., 786 F.3d 510, 523 n.3 (7th Cir. 2015). Indeed, because the court’s or-
der could be understood as removing the liberal amendment standard
and imposing a heightened burden on the plaintiff, whether this stand-
ing order is in conflict with Federal Rule of Civil Procedure 15 is a signif-
icant question that we eventually may have to confront if the district
court persists in requiring litigants to propose a possible amended com-
plaint even before the court has ruled on the adequacy of the one already
filed. See Fed. R. Civ. P. 83(b).