RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0176p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

BEVERLY L. MILLER,

Plaintiff-Appellant,

v.

ADMINISTRATIVE OFFICE OF THE COURTS, JUDGE

THOMAS B. WINE, in his individual capacity, TIM

VIZE, in his individual and official capacities, and

JUDGE JAMES M. SHAKE, in his official capacity,

Defendants-Appellees.

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No. 05-5981

Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 01-00339—Charles R. Simpson III.

Argued: April 26, 2006

Decided and Filed: May 23, 2006 

Before: SUHRHEINRICH, GILMAN, and ROGERS, Circuit Judges. 

_________________

COUNSEL

ARGUED: Thomas E. Clay, CLAY, KENEALY, WAGNER & ADAMS, Louisville, Kentucky,

for Appellant. Cynthia Blevins Doll, WYATT, TARRANT & COMBS, Louisville, Kentucky,

Robert E. Stopher, BOEHL, STOPHER & GRAVES, Louisville, Kentucky, Margaret E.M. Keane,

GREENEBAUM, DOLL & McDONALD, Louisville, Kentucky, for Appellees. ON BRIEF:

Thomas E. Clay, CLAY, KENEALY, WAGNER & ADAMS, Louisville, Kentucky, for Appellant.

Cynthia Blevins Doll, Lisa C. DeJaco, WYATT, TARRANT & COMBS, Louisville, Kentucky,

Robert E. Stopher, Robert D. Bobrow, BOEHL, STOPHER & GRAVES, Louisville, Kentucky,

Margaret E.M. Keane, Melissa Norman Bork, Laurel S. Doheny, GREENEBAUM, DOLL &

McDONALD, Louisville, Kentucky, for Appellees.

_________________

OPINION _________________

RONALD LEE GILMAN, Circuit Judge. After Beverly Miller was fired from her job of

over 24 years as the jury-pool manager for Jefferson County, Kentucky, she sued the Administrative

Office of the Courts (AOC) as well as various county officials. She alleged a First Amendment

violation on the basis that her termination was in retaliation for bringing to light various

1
No. 05-5981 Miller v. Administrative Office of the Courts et al. Page 2

administrative problems, and further claimed that she was deprived of her right to due process

because she was not afforded notice or an opportunity to be heard prior to her termination. Miller

also brought a claim under the Kentucky Whistleblower Act. 

The district court dismissed the claims against the individual defendants in their official

capacities and against the AOC on the basis of Eleventh Amendment sovereign immunity. Miller’s

claims against the officials in their individual capacities were dismissed on the basis of qualified

immunity. She now appeals the dismissal of her individual-capacity claims and the dismissal of her

Kentucky Whistleblower Act claim. For the reasons set forth below, we AFFIRM the judgment of

the district court.

I. BACKGROUND

A. Factual background

1. Miller’s employment as jury-pool manager

In 1976, Miller was hired to serve as the jury-pool manager for Jefferson County, Kentucky

by then-Chief Judge Michael McDonald. She reported directly to the Chief Judge. Miller retired

in 1999, but soon thereafter was reappointed to the same job. Instead of being called the “jury-pool

manager” after her reappointment, however, Miller was classified as a “professional-services

supervisor.” But her pay did not change, and she performed the same duties managing the jury pool.

She continued to perform these duties until she was fired on April 24, 2001.

The issue of whether Miller served as a tenured or nontenured employee was a “difficult”

one, according to the district court. Judge McDonald, who hired Miller, testified that the position

was tenured. He said that the position was essential to the operation of the court and should not be

subject to replacement with each new chief judge. Her appointment letter, however, stated that

Miller was “to serve at the pleasure of the Court.” Miller argues that, in addition to Judge

McDonald’s intent to hire her as a tenured employee, two other sources of information show that

she was a tenured employee: the Court of Justice (COJ) policies and the COJ Personnel Documents.

The COJ policies state that they apply to employees and officials unless a “specific exception

[is] clearly indicated.” AOC Director Cicely Lambert testified that this provision sets up a system

whereby employees of the AOC are considered to be tenured unless they are specifically listed in

the “exceptions” portion of the rule. Job classifications like “secretaries for judges in all courts,”

“law clerks and staff attorneys,” and “trial court administrators” are listed among the exceptions.

The defendants argue that Miller falls under the exception for the job classification of “trial court

administrators,” even though her official title was “jury-pool manager” and later “professionalservices supervisor.” 

Under the COJ policies, tenured employees are entitled to various pre-termination

procedures, but nontenured employees “serve at the pleasure of their respective appointing

authority” and are not so entitled. The defendants acknowledge that Miller was not afforded the pretermination procedures required for tenured employees, but insist that she was not tenured and

therefore not entitled to those procedures. 

In addition to the COJ policies, Miller points to the fact that she served a probationary

period, a requirement only for tenured employees. She also claims that her annual pay increment

was inconsistent with the COJ policies regarding nontenured employees. 

The defendants, on the other hand, highlight that Miller has conceded that she was not a

“classified” or “merit” employee under Kentucky Revised Statutes Chapter 18A. Under Chapter
No. 05-5981 Miller v. Administrative Office of the Courts et al. Page 3

18A, these types of employees are considered to be tenured and are entitled to the pre-termination

procedures. Ky. Rev. Stat. § 18A.095(3). Miller calls this argument a “red herring,” contending

that the appropriate places to look to determine the tenured status of a COJ employee are the COJ

policies and the employee’s personnel file, not the listings in Chapter 18A. 

2. The nature of Miller’s complaints that allegedly resulted in her termination

In her complaint, Miller alleges that her termination resulted from two separate

communications that she initiated about issues of court administration. One involved her complaints

regarding “fraud, waste, and mismanagement in the conduct of the Chief Court Administrator Tim

Vize and the Court Administrator Roger McCubbins” that “direct[ly] result[ed]” in her termination,

in violation of the Kentucky Whistleblower Act. The other concerned an email she sent regarding

the loss of privately donated funds, allegedly causing her termination in violation of her right to free

speech under the First Amendment. These two sets of allegations will be addressed in turn.

a. Miller’s complaints regarding Vize and McCubbins

Miller claims that she disclosed to Chief Judge Wine, AOC Director Lambert, Vize, and

others, both verbally and in writing, that Vize and McCubbins “were being paid to perform duties

with respect to the jury pool which they, in fact, had never performed.” The job descriptions for

“Chief Court Administrator” and “Court Administrator” have two relevant

sections—“Characteristics of the Class” and “Examples of Duties.” Under the “Characteristics of

the Class” heading, both descriptions state that the employee “performs highly responsible duties

in . . . jury management.” Then, as an example of these duties, both descriptions state that the

employee “[a]ssists in the calling and pooling and coordination of jurors, answers public inquiries

and individual juror complaints and questions, distributes and handles juror questionnaires.” 

Miller sent a letter on April 23, 2001 to Judge Wine, Vize, McCubbins, and others

highlighting that these duties were not being performed. Specifically, she stated: “As you know, for

over 20 years, the Court Administrators in Jefferson County have not performed these duties

assigned by AOC.” 

b. Miller’s complaint regarding the loss of privately donated funds

On April 19, 2001, Miller sent an email message to over 35 recipients, including Judge Wine,

the AOC, and the judges of Jefferson County. The substance of this email—titled “Loss of funding

for new orientation video”—is set forth below:

In February, 1999, I applied for grant money from the Louisville Bar and Kentucky

Bar Foundations for the purpose of updating our jury orientation film. Several other

people put a lot of time and effort into securing money for this project, including

former Chief Circuit Judge Jeff Morris, Chief District Judge Bill Ryan, Judge

William Knopf, Dan Goyette, Creighton Mershon, Bill Schneider and others.

We were awarded money from both Foundations (as a joint venture) in spring of

1999. Unfortunately, the timing coincided with the loss of staff in our office which

left us critically understaffed for over a year. In September we were assigned a clerk

but our staffing shortage continues today due to the workload has more than doubled.

[sic] Without automation and no additional staff assigned to this office since 1977,

we are barely able to “keep our heads above water,” much less find the time to

devote to this project as well as other projects to sustain our office.
No. 05-5981 Miller v. Administrative Office of the Courts et al. Page 4

I have documented several times, when requesting help, my concern about the

possibility of losing our funding because of not being able to proceed with the

project.

Regrettably, the Kentucky Bar Foundation has asked that the money be returned.

* * *

If AOC can provide any assistance to Jefferson County in remedying our problem,

it would be greatly appreciated.

Thank you.

3. Miller’s termination

In response to Miller’s April 19, 2001 email, Judge Wine asked that Vize contact the AOC

in order to ascertain what procedures were necessary to terminate Miller. Vize contacted three

individuals: Kevin Smalley, an attorney for the AOC; Cicely Lambert, the AOC Director and former

General Counsel; and Rita Cobb, the AOC Personnel Director. All three individuals advised Vize

that Miller was a nontenured employee.

Judge Wine testified that, in the months prior to Miller’s sending this email, he was already

having “problems” with Miller. These problems had caused Wine to consult Smalley, Lambert, and

Cobb about the proper procedures to terminate Miller. Wine also discussed these problems with

Kentucky Supreme Court Justice Martin Johnstone. Wine testified that “[t]he decision to terminate

Ms. Miller was made prior to receiving that e-mail from her. We were in the process of working

with the AOC, COJ, to determine what needed to be said, how the letter needed to read, and those

discussions had finished a week prior.” As to whether the email influenced the decision to fire

Miller, Wine said that “[i]t didn’t help her cause.” 

On April 24, 2001, Judge Wine called Miller into his chambers. He gave Miller the option

of resigning or being terminated. Miller refused to resign, so Wine fired her. In a letter dated the

same day, Wine explained his reasons for firing Miller. He first recognized that Miller had raised

concerns about staffing issues in the jury-pool office, but reiterated his disagreement with her

assessment that they truly needed more staff. Several corrective measures had already been

implemented, even some suggested by Miller herself, but to the extent that any further workforce

issues remained, Wine concluded that better time management by Miller herself would have solved

the problem. Despite “repeated attempts to help,” Wine wrote in his termination letter, Miller

“continued to display conduct that is unprofessional and inappropriate, resulting in a very negative

influence on morale and the operations of the office.” He also stated that Miller had “been hostile

and argumentative and displayed insubordinate behavior to [her] immediate supervisor, Mr. Vize.”

For these reasons, Wine concluded that he was “compelled to present [Miller] with th[e] letter of

termination effective immediately.”

B. Procedural background

Miller’s original complaint set forth claims against the AOC, Vize in both his official and

individual capacities, and Chief Judge Wine in his official capacity only. The complaint was later

amended to account for the fact that Judge Wine was replaced by Judge Shake as chief judge of the

Jefferson County Circuit Court. Miller thus alleged claims against the AOC, Vize in both his

official and individual capacities, Judge Wine in his individual capacity, and Chief Judge Shake in

his official capacity. Miller later moved to amend her complaint for a second time, but this motion

was denied. This denial is discussed in more detail below, in response to one of Miller’s claims on

appeal.
No. 05-5981 Miller v. Administrative Office of the Courts et al. Page 5

On the basis of Eleventh Amendment immunity, the district court dismissed the claims

against Vize in his official capacity, Judge Shake in his official capacity, and against the AOC,

except to the extent that Miller requested prospective, injunctive relief. In the final order entered

by the district court, however, Miller’s complaint was “completely dismissed” without further

explanation. 

The district court separately addressed Miller’s claims under 42 U.S.C. § 1983 against Vize

and Judge Wine in their individual capacities. According to the court, Miller failed to allege a

violation of her First Amendment free-speech rights, therefore entitling Vize and Wine to qualified

immunity on that claim. With respect to her due process claim, the district court assumed that Miller

had a property interest in her job and that she was terminated without proper notice and a hearing.

The district court nevertheless held that Vize and Wine were entitled to qualified immunity because

their decision to terminate Miller was reasonable given the advice they received when they

investigated whether she could be terminated as an at-will employee. Summary judgment was

therefore entered in the defendants’ favor on these constitutional claims.

Finally, with respect to Miller’s Whistleblower Act claim against Vize and Judge Wine in

their individual capacities, the district court concluded that Miller failed to state a viable claim. The

Act, according to the court, protects employees against retaliation for the good faith reporting of

suspected violations of the law or administrative regulations. Miller’s complaints did not involve

this type of protected information. Summary judgment was therefore entered in the defendants’

favor on the state-law claims as well.

Miller raises three issues on appeal: (1) whether the district court erred in concluding that

Vize and Judge Wine were entitled to qualified immunity on her free-speech and due process claims,

(2) whether the district court erred in denying Miller’s request to amend her complaint for the

second time, and (3) whether the district court erred in granting summary judgment to Vize and

Judge Wine on Miller’s Whistleblower Act claim.

Miller does not challenge on appeal the district court’s dismissal of her claims against the

officials for prospective relief even though the district court never provided any reasons for

dismissing these potentially meritorious claims. Furthermore, she never discusses the dismissal of

her claims for prospective relief in her opening brief. This court has held that issues are waived

when “not raised in the appellant’s opening brief.” Bickel v. Korean Air Lines Co., 96 F.3d 151, 153

(6th Cir. 1996); see also Thaddeus-X v. Blatter, 175 F.3d 378, 403 n.18 (6th Cir. 1999) (en banc)

(holding that issues not presented in an opening brief are waived). Any argument that Miller has

in this regard is therefore waived.

II. ANALYSIS

A. Standard of review

We review de novo a district court’s grant of summary judgment. Int’l Union v. Cummins,

Inc., 434 F.3d 478, 483 (6th Cir. 2006). Summary judgment is proper where there exists no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(c). In considering a motion for summary judgment, the district court must construe the

evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central issue is “whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251-52 (1986).
No. 05-5981 Miller v. Administrative Office of the Courts et al. Page 6

B. The law of qualified immunity

In determining whether a law enforcement officer is shielded from civil liability due to

qualified immunity, this court typically employs a two-step analysis: “(1) whether, considering the

allegations in a light most favorable to the party injured, a constitutional right has been violated, and

(2) whether that right was clearly established.” Estate of Carter v. City of Detroit, 408 F.3d 305,

310-11 (6th Cir. 2005) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). This court occasionally

considers a third step in the qualified immunity analysis, in addition to the two steps listed above.

See Estate of Carter, 408 F.3d at 310 n.2 (“Panels of this court occasionally employ a three-step

qualified immunity analysis, as opposed to the two-step analysis set forth here. . . . [B]oth the

two-step approach and the three-step approach can be said to capture the holding of [Saucier].”)

(citations omitted). When utilized, this third step requires an inquiry into “whether the plaintiff has

offered sufficient evidence to indicate that what the official allegedly did was objectively

unreasonable in light of the clearly established constitutional rights.” Champion v. Outlook

Nashville, Inc., 380 F.3d 893, 901 (6th Cir. 2004) (citation and quotation marks omitted).

The Supreme Court since Saucier has continued to use the two-step approach to qualified

immunity, but this court has noted that “the three-step approach may in some cases increase the

clarity of the proper analysis.” See Estate of Carter, 408 F.3d at 311 n.2. If, on the other hand, the

case at issue “is one of the many cases where, if the right is clearly established, the conduct at issue

would also be objectively unreasonable,” then this court has “collapse[d] the second and third

prongs” in an effort to “avoid duplicative analysis.” Caudill v. Hollan, 431 F.3d 900, 911 n.10 (6th

Cir. 2005). Throughout the analysis, the burden is on Miller to show that the individual defendants

are not entitled to qualified immunity. Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir.

2006) (“Once the qualified immunity defense is raised, the burden is on the plaintiff to demonstrate

that the officials are not entitled to qualified immunity.”). 

On appeal, Miller challenges the district court’s grant of summary judgment on the basis of

qualified immunity with respect to her First Amendment claim and her claim that she was denied

due process in the manner that she was terminated. These arguments will be addressed in turn.

C. Miller’s First Amendment claim

In order to make out a prima facie case that she was terminated in retaliation for engaging

in speech protected by the First Amendment, Miller must show: (1) that she “engaged in

constitutionally protected speech”—that is, “that her speech touched on matters of public concern,”

(2) that she “was subjected to an adverse action or was deprived of some benefit,” and (3) that “the

protected speech was a substantial or a motivating factor in the adverse action.” Banks v. Wolfe

County Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003) (citations and quotation marks omitted). The

district court did not consider the second and third elements because it concluded that Miller had

not engaged in constitutionally protected speech. 

“Whether a plaintiff’s speech addressed a matter of public concern is a question of law,

requiring de novo review by an appellate court.” Barnes v. McDowell, 848 F.2d 725, 733 (6th Cir.

1988). The Supreme Court has stated that “[w]hether an employee’s speech addresses a matter of

public concern must be determined by the content, form, and context of a given statement, as

revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147-48 (1983). In Connick, the

Court went on to warn that not all criticisms of office-related matters by government employees

involve matters of public concern:

To presume that all matters which transpire within a government office are of public

concern would mean that virtually every remark—and certainly every criticism

directed at a public official—would plant the seed of a constitutional case. While as
No. 05-5981 Miller v. Administrative Office of the Courts et al. Page 7

a matter of good judgment, public officials should be receptive to constructive

criticism offered by their employees, the First Amendment does not require a public

office to be run as a roundtable for employee complaints over internal office affairs.

Id. at 149.

We agree with the district court’s conclusion that Miller’s speech did not involve a matter

of public concern. The April 19, 2001 email is the only speech that Miller identified in her

complaint as being protected by the First Amendment. The email complained of a loss of funding

for a new juror-orientation video. Miller attributed this loss to an unremedied lack of staff, and

asked whether the AOC could provide assistance in that regard. This is not a case like Banks in

which the speech at issue dealt with the failure to follow hiring policies and with alleged violations

of state law, matters that “could affect the community and therefore touch upon matters of public

concern.” Banks, 330 F.3d at 897. Miller’s complaints, in contrast, centered around a shortage in

staffing and the lost opportunity to utilize privately donated funds. We agree with the district court

that “[t]o constitutionalize this speech into a matter of public concern would both cheapen the First

Amendment and turn almost every e-mail about government office operations into [a] constitutional

case[].”

Because we conclude that Miller’s email did not involve matters of public concern, there is

no need to balance her interests in speaking freely against the interests of the state. Banks, 330 F.3d

at 892-93 (“If a plaintiff's speech does not address a matter of public concern, no further inquiry is

necessary.”). The district court’s dismissal on qualified immunity grounds was therefore proper.

See Estate of Carter, 408 F.3d at 310-11 (citing Saucier, 533 U.S. at 201) (describing the qualified

immunity analysis).

D. Miller’s due process claim

1. Whether, considering the allegations in a light most favorable to Miller, a

constitutional right has been violated

The first step in analyzing this claim is to determine whether Miller had an interest that was

protected by the Due Process Clause. In order to be entitled to a due process hearing prior to her

termination, Miller must prove that “she enjoyed a property interest in her position” as jury-pool

manager. See Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 141 (6th Cir. 1997) (finding that

Bailey was a nontenured employee and therefore not entitled to a due process hearing prior to

termination). Miller would not be entitled to “any pre-deprivation process whatsoever” in the

absence of a property interest in her position. See id. 

If Miller can demonstrate such a property interest, however, the second step in analyzing this

claim is to determine whether Miller was afforded her due process rights prior to termination. That

is, was she afforded the procedures to which government employees with a property interest in their

jobs are “ordinarily entitled,” including “pre-deprivation notice of the charges, an explanation of the

employer’s evidence, and an opportunity to present their account of the events”? See id. The

defendants concede that no such procedures were followed when terminating Miller, so the real issue

is whether she was entitled to the procedures in the first place.

In order to determine whether Miller had a property interest in her job, reference must be

made to Kentucky law. See id. (“The existence of a property interest depends largely on state law.”).

Kentucky law requires that a person be more than an at-will employee in order to have a property

interest in her job. Id. (“An at-will employee is subject to dismissal at any time and without cause;

consequently, an at-will employee cannot effectively claim a protectable property interest in his or

her job.”). Miller therefore has to show that she was a tenured employee, as opposed to a

nontenured, at-will employee.
No. 05-5981 Miller v. Administrative Office of the Courts et al. Page 8

The district court found that a “resolution of this difficult issue was unnecessary to the

disposition” of the various motions for summary judgment. To the contrary, the district court should

have resolved this preliminary issue before proceeding to the second step of the qualified immunity

analysis. See Saucier, 533 U.S. at 201 (“[I]f a [constitutional] violation could be made out on a

favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was

clearly established.”) (emphasis added). Although we could remand the case in order for the district

court to determine this issue, we will proceed to make the determination ourselves in light of the

completeness of the record and in the interests of judicial economy. See Beaty v. United States, 937

F.2d 288, 291 (6th Cir. 1991) (stating in a case where an issue was not decided below that “the

record is complete, and it would be a waste of everyone’s time to remand to the district court what

can be decided now as a matter of law”).

There was conflicting evidence as to whether Miller was tenured or nontenured. The Chief

Judge who hired Miller said that the position was tenured in order to provide stability. Miller’s job

titles — jury-pool manager and professional-services supervisor — do not appear in the list of

exceptions from the tenured-employee rules, seeming to indicate that she was in fact tenured. She

also served a probationary period, a requirement only for tenured employees. (The defendants,

however, call this a “mistake.”) Finally, Miller claims that her annual pay increment was

inconsistent with the COJ policies regarding nontenured employees. 

On the other hand, Miller’s original appointment letter said that she was “to serve at the

pleasure of the Court.” The defendants also contend that Miller is covered by an enumerated

exception to the tenured-employee policies—the general job classification of “trial court

administrator”—that allegedly encompassed her actual job duties. Finally, Miller has conceded that

she is not a “classified” or “merit” employee under the Kentucky statute that describes the tenured

versus nontenured status of public employees. Ky. Rev. Stat. § 18A.095(3). (But Miller argues that

such a concession is not determinative of whether she is, in fact, tenured.) 

Construing the conflicting evidence in Miller’s favor, as we must for summary judgment

purposes, a genuine issue of material fact exists as to her status as a tenured employee. Because the

defendants concede that Miller was not given any notice or a hearing prior to her termination, we

conclude that Miller has satisfied her burden in the first stage of the qualified immunity analysis.

See Bailey, 106 F.3d at 141 (setting forth the method of analyzing a due process claim); Estate of

Carter, 408 F.3d at 310-11 (citing Saucier, 533 U.S. at 201) (describing the qualified immunity

analysis).

2. Whether, considering the allegations in a light most favorable to Miller,

her termination violated a “clearly established” constitutional right

The second step of the qualified immunity analysis is to determine whether the constitutional

right that was violated was “clearly established.” Estate of Carter, 408 F.3d at 310-11 (citing

Saucier, 533 U.S. at 201). “The relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful

in the situation he confronted.” Saucier, 533 U.S. at 202.

In this case, Administrator Vize and Judge Wine conducted a pre-termination investigation

into Miller’s status to determine whether any special procedures needed to be followed in order to

lawfully terminate her. The advice they received from the AOC’s Director, its attorney, and its

Personnel Director was consistent—that Miller was a nontenured employee. Given this information,

a reasonable officer would not have clearly known that terminating Miller without the procedures

required only for tenured employees was unlawful. This is not a case where the official responsible

for terminating a government employee was “plainly incompetent” or “knowingly violat[ed] the

law.” Malley v. Briggs, 475 U.S. 335, 341 (1986) (stating that as the “qualified immunity defense
No. 05-5981 Miller v. Administrative Office of the Courts et al. Page 9

has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly

violate the law”). Rather, Vize and Wine took precautionary measures to ensure that Miller was

nontenured and, whether or not she was in fact nontenured, those precautionary measures, under the

circumstances, rendered reasonable their decision to terminate Miller without a hearing.

Furthermore, even if we were to conclude that Miller had met her burden in the second step

of the qualified immunity analysis, we would still hold that Vize and Judge Wine are entitled to

qualified immunity under the third step that this court occasionally employs. The decision to

terminate Miller was simply not “objectively unreasonable” based on the information Vize and Wine

had received in their pre-termination investigation. See Champion, 380 F.3d at 901. 

E. Miller’s claim under the Kentucky Whistleblower Act

Miller’s other claim relates to the concern that she expressed to several court officials about

“fraud, waste, and mismanagement in the conduct of the Chief Court Administrator Tim Vize and

the Court Administrator Roger McCubbins.” According to Miller, both Vize and McCubbins were

being paid for performing duties related to the jury pool, but that in fact they had never performed

these duties. Miller alleges that Judge Wine’s decision to terminate her was “a direct result” of her

expressing these concerns, and that Vize conspired in her termination, all in violation of the

Kentucky Whistleblower Act.

Although Miller extensively briefed her claim that Vize and Judge Wine had violated the

Whistleblower Act, she failed to address the fact that the Kentucky Supreme Court recently held that

the Act does not impose individual civil liability. Cabinet for Families & Children v. Cummings, 163 S.W.3d 425, 434 (Ky. 2005) (“[T]he language of KRS 61.101(2) does not impose individual

civil liability under Kentucky’s Whistleblower Act for reprisal against public employees of the

Commonwealth and its political subdivisions.”). Miller’s claims against Vize and Wine in their

individual capacities are therefore precluded by Cummings. In sum, we affirm the dismissal of

Miller’s state-law claim on this alternative ground, and do not reach the question of whether she in

fact stated a claim under the Act.

F. Miller’s request to amend her complaint for the second time

Miller’s original complaint was filed in June of 2001. In May of 2002, the district court

allowed her to file her first amended complaint, which substituted the new chief judge as a named

party and added a claim against the former chief judge in his individual capacity. No substantive

changes were made to the allegations in the original complaint. 

In August of 2002, Miller filed a motion for leave to file a second amended complaint. The

proposed amendment added 23 additional factual allegations in support of the claim that her First

Amendment rights were violated. These new allegations set forth “concerns” that Miller allegedly

shared with county officials “relating to the management and operations of the Jury Pool Office.”

In October of 2002, the district court denied Miller’s request “pending resolution of the qualified

immunity issues.”

The district court’s decision to deny Miller’s motion to amend her complaint is subject to

the abuse-of-discretion standard of review. See Rose v. Hartford Underwriters Ins. Co., 203 F.3d

417, 420 (6th Cir. 2000) (“We review a district court’s order denying a Rule 15(a) motion to amend

for an abuse of discretion.”). Miller argues that the district court’s failure to provide any reason for

denying her request constituted a per se abuse of discretion, citing the Supreme Court’s decision in

Foman v. Davis, 371 U.S. 178, 182 (1962). The Court in Foman stated that the “outright refusal to

grant the leave without any justifying reason appearing for the denial is not an exercise of discretion;

it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Id.
No. 05-5981 Miller v. Administrative Office of the Courts et al. Page 10

The defendants dispute Miller’s interpretation of Foman, emphasizing that the reasons need

only be apparent, not necessarily explicitly stated. This reading finds support in the caselaw of this

circuit. See, e.g., Duchon v. Cajon Co., 791 F.2d 43, 48 (6th Cir. 1986) (“Where, as here, the reason

for denial is readily apparent it is within the court’s discretion to so deny without further

explanation.”); Troxel Mfg. Co. v. Schwinn Bicycle Co., 489 F.2d 968, 971 (6th Cir. 1973) (“[W]e

note that the better practice is for a district court to state reasons for its denial of a motion to amend.

However, . . . when reasons are readily apparent it is not per se an abuse of discretion to omit

them.”). In this case the reasons for the denial of Miller’s motion to amend were readily apparent

in the record. 

The procedure to file an amended complaint is set forth in Rule 15(a) of the Federal Rules

of Civil Procedure. Where, as here, the defendants had already responded to the original complaint,

the plaintiff can amend only by leave of the court. Rule 15(a) provides, however, that such “leave

shall be freely given when justice so requires.” In Perkins v. American Elec. Power Fuel Supply,

Inc., 246 F.3d 593, 605 (6th Cir. 2001), this court listed several factors to consider in order to decide

whether to allow an amendment: “the delay in filing, the lack of notice to the opposing party, bad

faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue

prejudice to the opposing party, and futility of amendment.” 

The final deadline set by the district court for discovery on the issue of qualified immunity

was August 6, 2002, and had expired approximately two weeks before Miller moved to amend her

complaint for a second time. In addition, the deadline for filing dispositive motions on the issue of

qualified immunity— September 6, 2002—had nearly passed when Miller filed her motion, and had

long passed by the time the district court denied Miller’s request.

Because the discovery deadline had already passed and the deadline for filing dispositive

motions on the issue of immunity was imminent, the defendants would have been prejudiced if a

further amendment had been permitted by the district court. See Duggins v. Steak ‘N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999) (“At least one Sixth Circuit decision has held that allowing

amendment after the close of discovery creates significant prejudice, and other Circuits agree.”)

(citations omitted). Miller, moreover, offered no justification for the 14-month delay between the

filing of her original complaint and her moving to add the additional allegations on her First

Amendment claim, which militates against the allowance of an amendment. Id. (noting, in support

of its conclusion that the plaintiff was not entitled to amend the complaint, that “[t]here appears to

be no justification for the delay, and the plaintiff proposes none”). Because these reasons were

readily apparent, the district court’s denial of the request to amend the complaint did not constitute

an abuse of discretion. See Troxel Mfg. Co., 489 F.2d at 971; Duchon, 791 F.2d at 48. 

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.