Opinion
No. 1:99CV00664, 1:00CV00166
December 3, 2002
MEMORANDUM OPINION
This matter is before the Court on the Plaintiff's Motions to Amend the Amended Complaint [Docs. #16, 37, 45, 46, 54, 55 in case No. 1:99CV00664] and the Defendant Trustees' Motion to Strike [Doc. #49 in case No. 1:99CV00664]. For the reasons set forth below, the Motions to Amend will be GRANTED IN PART and DENIED IN PART, and the Defendant's Motion to Strike is found to be MOOT.
I.
Diane Joy Jenkins, the pro se Plaintiff in this case, was an instructor at Sandhills Community College ("Sandhills"), in Pinehurst, North Carolina. Ms. Jenkins, an African-American female, was employed at Sandhills from 1994 to 1999, as an instructor in both English and Communications. Ms. Jenkins alleges that, while she was employed at Sandhills, she was subjected to five incidents of employment discrimination: (1) she was denied a performance evaluation for the 1996-97 academic year while white instructors were given their evaluations; (2) she had her probationary status extended; (3) conflicts with her students were investigated and evaluated differently than were conflicts between students and white instructors; (4) she suffered a discriminatory discharge; and (5) she was not hired as the bookstore manager because of her race.
Since filing suit, Ms. Jenkins has submitted an Amended Complaint, six motions to amend the Amended Complaint, a motion to amend one of the motions to amend the Amended Complaint, as well as responses to the motions filed by the Defendants. The Defendants have filed Motions to Dismiss pursuant to 12(b)(6). At this time, however, the Court will consider only the numerous motions to Amend the Complaint.
In view of the determination that Ms. Jenkins should be allowed to amend and that she should also incorporate all of her claims into one complaint, the motions to dismiss will not, be addressed at this time. While there are continuing questions relating to issue such as standing and the Eleventh Amendment, those matters will be reserved for disposition after Ms. Jenkins has been given the opportunity to restate her complaint in accordance with this opinion.
II.
Rule 15(a) of the Federal Rules of Civil Procedure provides that once a party has amended as a matter of right, "a party may amend the party's pleadings only by leave of court or by written consent of the adverse party; and leave shall be given freely when justice so requires." Fed.R.Civ.P. 15(a) (West Supp. 2002). The general standard for determining "when justice so requires" is:
In the absence of any apparent or declared reason — such as 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. — the leave sought should, as the rules require, be "freely given."Foman v. Davis, 371 U.S. 178, 182 (1962). As explained by the Fourth Circuit, the Foman factors "embody a principle which focuses on prejudice or futility or bad faith as the only legitimate concerns in denying leave to amend, since only these truly relate to protection of the judicial system or other litigants." Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980).
The Defendants claim that the proposed amendments would be futile because the claims Ms. Jenkins seeks to add would not survive a motion to dismiss. See Burns v. AAF-McQuay, Inc., 166 F.3d 292, 294-95 (4th Cir. 1999) (holding that amendment would be futile where a proposed addition would not state a claim). In evaluating Ms. Jenkins' motions to amend, the Court will analyze the claims she seeks to add by deciding whether the claims would survive a motion to dismiss pursuant to Rule 12(b)(6). If the claims would not survive a motion to dismiss, then the amendment would be futile and leave to amend will be denied.
A.
The analysis begins with Ms. Jenkins' First Motion to amend the Amended Complaint (Proposed Second Amended Complaint) [Doc. #16]. In this first motion, Ms. Jenkins seeks to add a claim under the North Carolina Whistleblower Act. See N.C. Gen. Stat. §§ 126-84, 126-85, 126-86. The Act provides protection to state employees who report certain practices, such as violations of the law, waste, or fraud. Section 126-85 provides protection for state employees from retaliation, and section 126-86 provides that a state employee who is "injured by a violation of G.S. 126-85 may maintain an action in superior court for damages . . . against the person or agency who committed the violation within one year after the occurrence of the alleged violation." N.C. Gen. Stat. § 126-86 (2001). The elements of a whistleblower claim are (1) the plaintiff engaged in a protected activity; (2) an adverse employment action followed; and (3) the protected activity was a substantial or motivating factor in the adverse action. See Kennedy v. Guilford Technical Comty. Coll., 115 N.C. App. 581, 584, 448 S.E.2d 280, 282 (1994).
Ms. Jenkins contends that she engaged in protected activities when she complained to Sandhills of racism and when she filed a charge of discrimination with the EEOC. As a result of these activities, she contends that she was denied a performance evaluation, was fired, and was not hired for the bookstore manager position. The North Carolina Court of Appeals recently held that the provisions of the North Carolina Whistleblower statutes referring to retaliation for reporting a violation of state or federal statutes applied to a claim for retaliatory discharge motivated by the plaintiff's complaint of sexual harassment. Wells v. North Carolina Dept. of Correction, ___ N.C. App., ___, 567 S.E.2d 803, 809 (2002). The same rationale would apply to a claim for retaliation based on complaints of racial discrimination. Leave to amend the Amended Complaint to add this claim is granted.
B.
Ms. Jenkins' Third Motion to Amend the Amended Complaint (Proposed Fourth Amended Complaint) [Doc. #37] seeks to add two counts. The first proposed count is pursuant to section 115D-30 of the North Carolina General Statutes, which grants certain rights to community college employees who object to material in their personnel files. Section 115D-30 does not explicitly provide for a private right of action, nor does any case interpret it to imply one. Moreover, Ms. Jenkins has not followed the administrative procedures described in section 115D-30 for contesting the contents of her file. Thus, even if a private right of action did exist under that section, Ms. Jenkins would not be entitled to pursue it. Because the addition of such a claim would not survive a motion to dismiss, the motion to amend the complaint to include a claim pursuant to section 115D-30 is denied.
The Second Motion Amend the Amended Complaint (Proposed Third Amended Complaint) [Doc. #32] was voluntarily withdrawn by Ms. Jenkins [Doc. #36].
The second proposed claim in the Third Motion to Amend appears to allege that Sandhills' treatment of Ms. Jenkins violates Brown v. Board of Education, 347 U.S. 483 (1954). In the amended complaint, Ms. Jenkins alleged numerous violations of her constitutional rights. Permitting this proposed amendment would be redundant and confusing, and the motion to amend the complaint to add a claim for violation of Brown v. Board of Education is denied. The Plaintiff's third motion to amend the Amended Complaint [Doc. #37] is therefore denied in its entirety.
C.
Ms. Jenkins' Fourth Motion to Amend the Amended Complaint (Proposed Fifth Amended Complaint) [Doc. #45] seeks to add criminal counts of perjury, subornation of perjury, and criminal RICO violations. Ms. Jenkins alleges that the Defendants and their counsel committed perjury (N.C. Gen. Stat. § 14-209), suborned perjury (N.C. Gen. Stat. § 14-210), and violated the false testimony provisions of the state RICO act (N.C. Gen. Stat. § 75D-7) by denying in their pleadings that Ms. Jenkins is a state employee.
The perjury statutes prohibit the making of false statements under oath or affirmation. N.C. Gen. Stat. § 14-209. The false testimony provision of the RICO act prohibits "false testimony as to any material fact." N.C. Gen. Stat. § 75D-7. The Defendants' statements disputing Ms. Jenkins' status as a state employee are legal contentions made in the motion stage of a lawsuit. These arguments are not statements of material fact made under oath or affirmation, and thus are not actionable under the perjury or RICO statutes. Therefore, Ms. Jenkins' motion to amend the complaint by adding these claims is denied. Given that the motion has been denied, the Trustees' motion to strike Ms. Jenkins' motion to add these claims [Doc. #49] is denied as moot.
D.
The next motion that must be addressed is Ms. Jenkins' Fifth Motion to amend the Amended Complaint (Proposed Sixth Amended Complaint) [Doc. #46]. The sole purpose of this motion appears to be to increase the amount of damages Ms. Jenkins is seeking. Although this amendment appears to be unnecessary, permitting it will not prejudice the Defendants. Therefore, the motion is granted.
E.
Ms. Jenkins' Sixth Motion to Amend the Amended Complaint [Doc. #54] seeks to add claims under 42 U.S.C. § 1985 (3) and 42 U.S.C. § 1986. Title 42 U.S.C. § 1985(3) creates a cause of action for victims injured by the overt acts of "two or more persons . . . [who] conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws." 42 U.S.C. § 1985(3). The elements of a claim under section 1985(3) are: (1) a conspiracy of two or more persons; (2) for the purpose of depriving another of the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to one's person or property or deprivation of any right or privilege of United States citizenship. See United Bhd. of Carpenters v. Scott, 463 U.S. 825, 828-29 (1983). The plaintiff must also prove, "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); see also Buschi v. Kirven, 775 F.2d 1240, 1257 (4th Cir. 1985) (including this "purpose requirement" as an element). Given that Ms. Jenkins has alleged an equal protection violation, and given that at the pleading stage, the Defendants have made no showing of futility or prejudice, her motion will be granted as to the section 1985 claim.
Section 1986 imposes liability on those who know of conspiracies as described in section 1985 and who have the power to prevent the conspirators from acting but who fail to do so. See generally Clark v. Clabaugh, 20 F.3d 1290, 1295-96 (3rd Cir. 1994) (setting out elements of section 1986 claim). An important element of proving a section 1986 violation is proving an underlying section 1985 violation. See id. Having concluded that Ms. Jenkins' section 1985 claim may be added, it is reasonable to permit her section 1986 claim to be added as well.
Finally, in the Sixth Motion to Amend, Ms. Jenkins seeks the addition of several new parties to the action, such as the attorneys for the State, the attorneys for the Trustees, and various employees of Sandhills. In order to amend a complaint to add additional parties after a responsive pleading has been filed, a party must seek leave of the court pursuant to Rule 15 (see discussion in section II introduction). In addition, the parties sought to be added must satisfy either Rule 19 or Rule 20. Amendments that seek to add parties are generally permitted.Adkins v. Labor Ready, Inc., 205 F.R.D. 460, 462 (S.D.W. Va. 2001).
Rule 20 provides that defendants may be joined in one action "if they asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action." Fed.R.Civ.P. 20(a). In this case, any right to relief that Ms. Jenkins may have with respect to Sandhills employees would involve similar transactions or occurrences, the same questions of fact, and similar questions of law as the Defendant Trustees. The motion to add the Sandhills' employees as defendants is granted. When Ms. Jenkins submits a Second Amended Complaint pursuant to the Court's order in section III of this opinion, these new Defendants should be named individually and served with a summons and complaint.
Ms. Jenkins also seeks to add the counsel for the Defendants as parties. Ms. Jenkins appears to allege that Defendants' attorneys have conspired to deprive her of constitutional rights because of positions advocated in this matter. The Court must advise Ms. Jenkins that the Defendants' attorneys would not be liable to her under this theory for legal positions advocated in this case and an attempt to add them as Defendants solely on that basis might be found to constitute a frivolous claim. If Ms. Jenkins' claim is frivolous, then she would be subject to sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. Because of the liberal standards applicable to pro se filings, however, the Court is unable to decide at this point that Ms.Jenkins could not state a claim against Defendants' counsel upon a different theory. See Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir. 1978). Therefore, the motion to amend the complaint to add counsel for the State and counsel for Sandhills as parties is granted.
F.
In the Seventh Motion to Amend the Amended Complaint (Motion to Amend the Fourth Motion to Amend the Amended Complaint) [Doc. #55], Ms. Jenkins seeks to amend the complaint to add charges of state criminal perjury (N.C. Gen. State. § 14-209) and federal criminal perjury ( 18 U.S.C. § 1621) against the President and Trustees of Sandhills, as well as State Counsel and Sandhill's Counsel. As stated in section II.C. of this opinion regarding the Fourth Motion to Amend, the statements made by Defendants and their counsel are not actionable under perjury statutes. Therefore, the seventh motion to amend is denied.
III.
Finally, the Court must note that Rule 8 requires "a short and plain statement" of the grounds for jurisdiction and the claims for relief, and generally requires pleadings to be "simple, concise, and direct." Fed.R.Civ.P. 8. Ms. Jenkins' pleadings are long, repetitive, contain much extraneous information, and are often confusing. Furthermore, each time she has sought to amend the Amended Complaint, she has submitted a list of phrases and sentences that she proposes to insert as well as phrases she would like to delete from the original Amended Complaint, rather than a complete copy of the proposed complaint. While the Court must bear in mind that Rule 8 does not require "technical forms of pleading or motions" and that the pleadings submitted by parties proceeding pro se are to be viewed especially liberally, see, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), the Court is also mindful that the defendants must be provided notice of the claims against them so that they may prepare a defense.
As set forth above, some of the motions to amend the Amended Complaint have been granted. As a part of granting those motions to amend, the Court requires that Ms. Jenkins submit a complete "Second Amended Complaint." This document should not include citations to cases, nor should it include excerpts from books, speeches, the letters of public figures, or other historical documents, nor any discussion about racism in society generally. Rather, it should be describe only the specific conduct by the Defendants about which Ms. Jenkins is complaining and how this conduct relates to her claims.
This document shall be filed by January 2, 2003, and the Defendants shall have the usual amount of time to respond. Responses to earlier filings have included exhibits such as correspondence between Ms. Jenkins and Sandhills. The Court cannot consider these exhibits without converting the motions to dismiss to motions for summary judgment unless a particular exhibit is specifically referenced in the complaint. A party that wishes the Court to consider documents outside the complaint, and thus convert the motions to dismiss to motions for summary judgment should file a motion seeking that remedy.
IV.
For the reasons set forth above, Ms. Jenkins' First Motion to Amend the Amended Complaint [Doc. #16] is GRANTED; the Plaintiff's Third Motion to Amend the Amended Complaint [Doc. #37] is DENIED; the Plaintiff's Fourth Motion to Amend the Amended Complaint [Doc. #45] is DENIED; the Plaintiff's Fifth Motion to Amend the Amended Complaint [Doc. #46] is GRANTED; the Plaintiff's Sixth Motion to Amend the Amended Complaint [Doc. #54] is GRANTED; and the Plaintiff's Seventh Motion to Amend the Amended Complaint [Doc. #55] is DENIED. The Defendant's Motion to Strike Ms. Jenkins' Fourth Motion to Amend [Doc. #49] is MOOT.
Further, Ms. Jenkins is instructed to file a Second Amended Complaint as described above by January 2, 2003.