## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 6 1999 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARIA DEL CARMEN CALDERON, Plaintiff-Appellant,

v. KANSAS DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES; ROCHELLE CHRONISTER, Secretary of the Kansas Department of Social and Rehabilitation Services; CAROL BACON, Judge of the Eighteenth Judicial District, Juvenile Department, Sedgwick County, Kansas, Defendants-Appellees. No. 98-3183

Appeal from the United States District Court

for the District of Kansas (D.C. No. 97-CV-1432-WEB)
Patricia Mendoza (Amalia S. Rioja, Mexican American Legal Defense and Education Fund, Chicago, Illinois, and Ladessa De L a Cruz, De La Cruz & Doran, Wichita, Kansas, with her on the briefs), for Plain tiff-Appellant. John R. Dowell, Assistant Attorney General, Topeka, Kansas (Carla J. Stovall, Attorney General, Topeka, Kansas, and C. William Os smann, Chief of Litigation, Department of Social and Rehabilitation Services, T opeka, Kansas, with him on the brief), for Defendants-Appellees.* The Honorable Frank J. Magill, Senior Circuit Judge , United States Court

of Appeals for the Eighth Circuit, sitting by desig nation. -2- Before SEYMOUR , Chief Judge, MAGILL * and EBEL , Circuit Judges.

SEYMOUR , Chief Judge.-3-

Ms. Calderon filed this action under 42 U.S.C. § 19 83 against the State of Kansas, Rochelle Chronister as Secretary of the Dep artment of Social and Rehabilitation Services (SRS), and Carol Bacon, a s tate court judge. In response to defendants’ motions, the district court dismisse d the action on various grounds including Fed. R. Civ. P. 12(b)(6) for failure to s tate a claim. Ms. Calderon appeals and we affirm.

I Ms. Calderon’s underlying suit arises out of state court proceedings that resulted in the removal of her children from her ca re and custody. During the proceedings, Judge Bacon allegedly asked Ms. Calder on questions regarding her national origin, immigration status, marital status , socioeconomic status, and birth control practices. Ms. Calderon sued the state, th e judge, and Ms. Chronister for allegedly violating her rights under the Fourth, Fo urteenth and Fifth Amendments. She also asserted state tort claims against defenda nts. Defendant Chronister answered the complaint and filed a motion to dismis s. Without answering, the remaining defendants filed motions to dismiss. The district court held that Eleventh Amendment immunity, judicial immunity, and qualified immunity protected defendants from suit. In so doing, the c ourt held that the complaint failed to state a federal claim against any of the defendants. The court declined to-4-

exercise supplemental jurisdiction over the remaini ng state claims and dismissed them without prejudice.

II On appeal, Ms. Calderon contends the allegations in her complaint were sufficient to state a claim. We review de novo the district court's dismissal for failure to state a claim. Dill v. City of Edmond, 155 F.3d 1193, 1201 (10th Cir.1998). Such dismissal "is inappropriate unless [p]laintiff can prove no set of facts in support of [her] claims that would entitle [her] to relief." Id. We must accept all factual allegations in the complaint as true and interpret all inferences in the light most favorable to the plaintiff. See id ; F ED
. R. C IV
. P. 12(b)(6). The district court held that the Eleventh Amendment bars Ms. Calderon’s damage action against the State of Kansas and Ms. C hronister in her official capacity. Ms. Calderon does not contest that concl usion here but asserts that she is nevertheless entitled to sue Ms. Chronister for prospective injunctive relief under Ex parte Young , 209 U.S. 123 (1908), which allows parties to seeksuch relief against state officials for their unconstitu tional acts. The issue, however, is whether Ms. Calderon’s complaint stated a federal c onstitutional violation for which she sought prospective injunctive relief.-5-

Ms. Calderon concedes that her complaint never expr essly requested prospective injunctive relief. She argues instead that this omission should not be fatal because her alleged violations entitled her t o injunctive relief as a matter of justice. See Fed. R. Civ. P. 54(c) (“[E]very final judgment sha ll grant relief to which the party in whose favor it is rendered is en titled, even if the party has not demanded such relief in the party’s pleadings.”). She cites Pension Benefit Guar. Corp. v. East Dayton Tool & Die Co. , 14 F.3d 1122 (6th Cir. 1994), for the proposition that omissions in a prayer for relief d o not bar redress as long as the pleading provides notice of and grounds for the und erlying claims. The threshold question is thus whether Ms. Calderon’s complaint g ave any indication that she might be entitled to injunctive relief for ongoing federal constitutional violations by state officials. In her complaint, Ms. Calderon complained only of a series of questions Judge Bacon and SRS asked her that “elicited inform ation relating to family planning issues and her decisions to procreate, viz , the use of norplant . . ., information relating to the plaintiff’s race, natio nal origin, and citizenship . . . [and] socioeconomic status as it relates to the pla intiff’s ability to care for her children.” Aplt. App. at 3. We are not told the m anner in which the line of questioning allegedly violated any of Ms. Calderon’ s rights or would warrant any kind of injunctive relief.-6-

The rest of the complaint asserted vaguely that Ms. Calderon was subjected to the “described treatment,” which we take to mean the line of questioning, “because of her gender (female), race (Hispanic), n ational origin (Mexico), citizenship (undetermined), and socioeconomic statu s (at or below the national poverty level);” that the facts “were used to depri ve [her] of her rights, privileges and immunities secured by the Constitution and the laws of the United States” in unspecified ways; and that defendants violated her “liberty interest in the security of her person, her rights to equal protection, her rights to due process of law, and her privilege against self-incrimination under the Fourth, Fourteenth and Fifth Amendments.” Id. at 4. These allegations provided no indication th at prospective injunctive relief would ameliorate the alleged viol ations, which had already occurred. Furthermore, the only harm Ms. Calderon alleged was her own “substantial and permanent emotional injury, medical expenses an d other damages,” and the damages requested were “in excess of $8,000,000.00. ” Id. at 4-5. Although a court might speculate that the heart of the complai nt was to adjust child custody, no court has a duty to read this interpretation fro m the litigant’s mind, Brever v. Rockwell Int’l Corp. , 40 F.3d 1119, 1131 (10th Cir. 1994), especially i n light of the fact that Ms. Calderon never mentioned the chil dren in either her allegations of misconduct, the resulting harm, or the requested remedy.-7-

In the most liberal construction of the complaint, we are unable to discern the basis for Ms. Calderon’s claims beyond any emba rrassment the questions may have caused her. We cannot deduce any grounds for a federal constitutional violation or for injunctive relief except to enjoin questioning. As the questioning was completed and there was no indication of furthe r questioning, injunctive relief would have been inappropriate. Notably, Ms. Calderon offered nothing more in her M emorandum in Opposition of Defendant’s Motion to Dismiss to indi cate a constitutional violation that would have entitled her to any relie f, much less prospective injunctive relief. In addition to repeating inform ation in the complaint, the Memorandum asserted that Judge Bacon attempted to r egulate contraception and immigration. See Aplt. App. at 12. Ms. Calderon stated no facts at all to support these allegations, failed to explain the nexus betw een the judge’s questions and the alleged act of regulating Ms. Calderon, and did not assert that the attempt to regulate was ongoing. Thus, neither Ms. Calderon’s Memorandum nor her complaint specified any constitutional violation th at would have entitled her to relief. The district court did not err in holding that Ms. Calderon had not stated a claim against Ms. Chronister under the doctrine of Ex parte Young

. Ms. Calderon contends Judge Bacon was not entitled to judicial immunity because the judge’s questions regarding Ms. Caldero n’s citizenship were clearly-8-

beyond the scope of her jurisdiction. See Stump v. Sparkman , 435 U.S. 349, 356- 57 (1978) (“A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in exces s of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.’”). This argument is meritless. The Kansas Code for Care of Children grants state court judges jurisdiction ove r child custody proceedings, see K AN
. S TAT
. ANN . § 38-1503, and authorizes judges to consider a va riety of factors in determining which placement will best serve the child’s welfare, id. § 38-1562. Even assuming arguendo that some of Judge Bacon’s q uestions were inappropriate, she clearly acted in her judicial capacity pursuant to the code’s jurisdictional grant. The district court therefore correctly dismissed Ms. Calderon’s action against Judge Bacon under the doc trine of judicial immunity. The district court also dismissed all claims agains t Ms. Chronister in her individual capacity based on qualified immunity. U nder this doctrine, government officials are immune from liability for damages “insofar as their conduct does not violate clearly established statut ory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “When the defense of qualified im munity has been raised by the defendant, the plaintiff then has the burden to sho w with particularity facts and law establishing the inference that the defendants violated a constitutional right.”-9-

Waiter v. Morton , 33 F.3d 1240, 1242 (10th Cir. 1994). As we have indicated, Ms. Calderon alleged neither facts nor law supporti ng an inference that Ms. Chronister violated her constitutional rights. On appeal, Ms. Calderon asserts a number of specifi c contentions for the first time. She claims Judge Bacon ordered her to become a citizen in order to regain custody of her children, ordered her to marry the father of the children, ordered her to use birth control, and subjected herto self-incrimination by forcing her to answer questions about her citizenship and t o disclose her illegal immigrant status. None of these allegations were made in her complaint. In fact, one cryptic allusion made in the Memorandum below that Judge Bacon attempted to regulate her immigration status made no sense in co ntext until after Ms. Calderon revealed on appeal that she was an illegal immigran t. Since we will not consider an argument based on claims that were not before th e district court, we decline to consider these new contentions. See City of Stillwell, Okla. v. Ozarks Rural Elec. Coop. , 166 F.3d 1064, 1073-74 (10th Cir. 1999) (declinin g to consider an issue not raised below); MacKay v. Farnsworth , 48 F.3d 491, 493 (10th Cir.1995) (stating that this court will not consider an issue on appeal that was not raised below). Viewing the record below without Ms. Calderon’s lat e allegations and revelations, we conclude that Ms. Calderon failed t o state a claim for a violation-10-

of her constitutional rights. We therefore agree w ith the district court that Judge Bacon was protected from suit by judicial immunity, and that Ms. Chronister was protected by the Eleventh Amendment in her official capacity and by qualified immunity in her individual capacity.

III Alternatively, Ms. Calderon argues that the distric t court abused its discretion in failing to grant her leave to amend. On the last page of her Memorandum in Opposition of Defendants’ Motion to D ismiss, Ms. Calderon requested that should the court determine the need for facts or [t hat] further facts be stated with “. . . sufficient particularity to plac e the defendants in a position of notice as to the nature of the action a gainst them . . .” grant leave and sufficient time in which Calderon w ould be “. . . permitted to cure any specified defects within the pleadings.” Apt. App. at 72. She contends the district court a bused its discretion by failing to consider that statement as a motion for leave to am end her complaint and to sua sponte offer her the right to do so. Federal Rules of Civil Procedure 15(a) provides that a party has a right to amend the pleading one time without seeking leave o f court as long as the amendment occurs before a responsive pleading is se rved. See F ED
. R. C IV
. P. 15(a); Glenn v. First Nat’l Bank, 868 F.2d 368, 370 (10th Cir. 1989). After a-11-

responsive pleading, a party must seek leave of the court to amend by filing a motion. See Fed. R. Civ. P. 15(a) ; 6 C HARLES A LAN W RIGHT ET AL ., F EDERAL P RACTICE AND P ROCEDURE §§ 1480-83 (2d ed.1990). If a party seeks to amen d a pleading following the court’s grant of a motion to dismiss, the party must first move to reopen the case under Fed. R. Civ. P. 59(e) or 60(b) and then file a motion under Fed. R. Civ. P. 15 for leave to amend pursuant to the standards set out in Fed. R. Civ. P. 7. See Glenn , 868 F.2d at 371. When a party files a proper motion for leave to ame nd, rule 15(a) further provides “leave shall be freely given when justice so requires.” F ED
. R. C IV
. P. 15(a); see also Foman v. Davis , 371 U.S. 178, 182 (1962) ; Brever , 40 F.3d at 1131; Glenn , 868 F.2d at 371; see generally6 W RIGHT ET AL ., supra, §§ 1473 & 1483. The liberal granting of motions for leave to amend reflects the basic policy that pleadings should enable a claim to be heard on its merits. See Foman , 371 U.S. at 181-82; 6 W RIGHT ET AL ., supra , § 1473 at 521. This policy is not limitless and must be balanced against Fed. R. Civ. P. 7(b)(1), which governs the requirements for all motions and provides that any motion “shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” 6 W RIGHT ET AL ., supra , § 1483 at 582. By requiring notice to the court and the opposing party of the b asis for the motion, rule 7(b)(1) advances the policies of reducing prejudice to eith er party and assuring that “the1 To comply with the Rules of Practice and Procedure for the United States

District Courts of Kansas, a motion must be accompa nied by a brief or memorandum, D.Kan. Rule 7.1, and “[i]n addition, . . . [it should] set forth a concise statement of the amendment sought to be all owed, and a signed original of the proposed amended pleading [should] be attach ed,” D.Kan. Rule 15.1. None of these formal procedures were followed in the ins tant case. -12- court can comprehend the basis of the motion and de al with it fairly.” 5 C HARLES A LAN W RIGHT & A RTHUR R. M ILLER , F EDERAL P RACTICE AND P ROCEDURE § 1192 at 42 (2d ed. 1990); see also id. § 1191 at 38. We have recognized the importance of Fed. R. Civ. P . 7(b) and have held that normally a court need not grant leave to amend when a party fails to file a formal motion. 1 See Brever , 40 F.3d at 1130; Glenn , 868 F.2d at 371. In Glenn , we held it insufficient where the plaintiffs made a bare request in their response to a motion to dismiss “that leave be given to the Plaintiffs to amend their Complaint.” Glenn , 868 F.2d at 370. We declined the plaintiffs’ sug gestion that we should consider that statement as a motion for l eave to amend. We noted that the plaintiffs stated “no grounds let alone ‘partic ular’ grounds for the request,” and that it was not “an application for an order co ntemplated under the rules.” Id. Accordingly, we held that the plaintiffs’ informal request had not placed a motion before the court and that the district court “commi tted no error in not ruling thereon.” Id. at 371.-13-

While in the spirit of Fed. R. Civ. P. 15(b) we hav e said that failure to file a formal motion is not always fatal, see Brever , 40 F.3d at 1130-31, Triplett v. Leflore County , 712 F.2d 444 (10th Cir. 1983), in each of those c ases there was readily apparent notice to opposing parties and to the court of both the desire to amend and the particular basis for the amendment in accord with the purposes of rule 7(b). In Brever , 40 F.3d at 1130, the record showed that the plain tiff had repeatedly expressed a willingness to amend and had demonstrated particular grounds but had been misled by the district court t o believe she should wait to amend until after the court disposed of motions to dismiss. In these circumstances, we held that in its dismissal the co urt should have reserved to the plaintiff leave to amend despite the lack of a form al motion. Similarly, in Triplett , 712 F.2d at 445, we accepted the plaintiff’s moti on to reconsider as a request to amend despite its irregularity because t he motion to reconsider unequivocally gave both the district court and the opposing counsel clear notice of a request to amend and the grounds therefor. Attached to Mr. Triplett’s motion to reconsider was a brief with a bold captioned tit le reading “REQUEST FOR
LEAVE TO AMEND COMPLAINT.” Id . In addition, the brief itself included outlined theories of Mr. Triplett’s amended complai nt and a section devoted to a request for leave to amend. Id. The total record thus clearly indicated a desire to amend as well as a demonstration of the particular grounds for the amendment.-14-

Deriving a consistent approach from our case law, w e conclude that a request for leave to amend must give adequate notic e to the district court and to the opposing party of the basis of the proposed ame ndment before the court is required to recognize that a motion for leave to am end is before it. Our conclusion does not detract from the district court ’s wide discretion to recognize a motion for leave to amend in the interest of a just , fair or early resolution of litigation. See 5 W RIGHT & M ILLER , supra , § 1194 (2d ed. Supp. 1999). Our requirement of notice merely assures that “[w]e do not require district courts to engage in independent research or read the minds of litigants to determine if information justifying an amendment exists.” Brever , 40 F.3d at 1131; see Curtis Ambulance of Fla. v. Board of County Comm’rs , 811 F.2d 1371, 1386 n.15 (10th Cir. 1987) (a court is not obligated to conduct a p laintiff’s case for him when he fails to seek to amend a pleading). Our holding today resolves any substantive tension between our holdings in Glenn , 868 F.2d 368, Triplett , 712 F.2d at 445, and a footnote in Ramirez v. Oklahoma Dept. of Mental Health , 41 F.3d 584, 596-97 n.9 (10th Cir. 1994). By

contrast to Glenn , footnote nine in Ramirezdetermined that the two submissions presented to the district court, equally paltry as the Glenn submission, did amount to a request for leave to amend. The statements co nsisted in their totality of one sentence in the Opposition to the Defendants’ Motio n to Dismiss that-15-

should [the district court] determine that Plaintif f has failed to state facts with sufficient particularity to place the De fendants on notice of the nature of the action brought against them, Plai ntiffs would have this Court grant sufficient time in which Plaintiff s would be permitted to cure any specified defects within the pleadings, and one sentence in their supporting brief that pla intiffs “would have leave of Court to amend their complaint to cure any deficien cies if such deficiencies are hereinafter determined to exist by the Court.” Id. at 588 n.1. Apparently in
Ramirez , the district court was silent regarding the reque st for leave to amend. Despite the limited notice and lack of grounds to s upport an amendment provided by the plaintiff’s two submissions, we stated in fo otnote nine that the district court’s failure to grant leave to amend was an abus e of discretion. Relying solely on the footnote in Ramirez , Ms. Calderon contends she made a legitimate motion for leave to amend and argues t hat the district court abused its discretion in failing to grant leave after it susta ined defendants’ motions to dismiss. Footnote nine in Ramirezcan be characterized as dicta, however, because we held that the plaintiff’s complaint as w ritten did in fact state a claim. Cf. Hinton v. City of Elwood, 997 F.2d 774, 779 (10th Cir. 1993). In any event , procedurally Glenn controls. As the earlier opinion, Glenn is binding precedent over subsequent deviations absent en banc reconside ration or a contrary decision by the Supreme Court. See Clymore v. United States , 164 F.3d 569, 573 n.5 (10th Cir. 1999); Haynes v. Williams , 88 F.3d 898, 900 n. 4 (10th Cir.1996).-16-

Applying the Glenn-Triplett standard of adequate notice to the courts and the opposing party, therefore, we hold that Ms. Cal deron’s single sentence, lacking a statement for the grounds for amendment a nd dangling at the end of her memorandum, did not rise to the level of a motion f or leave to amend. Because a motion for leave to amend was never properly before it, the district court did not abuse its discretion in failing to address Ms. Cald eron’s request for leave to cure deficiencies in her pleadings. See Brannon v. Boatman’s First Nat’l Bank, 153 F.3d 1144, 1150 (10th Cir. 1998) (court needn’t add ress a motion never placed before it); Dahn v. United States , 127 F.3d 1249, 1252 (10th Cir. 1997) (same). In conclusion, we AFFIRM the district court’s dismissal of Ms. Calderon’s complaint for failure to state a claim.