IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Frank C. Brown, Jr., :

Plaintiff, :

v. : Case No. 2:10-cv-967

Warden Deb Timmerman-Cooper, : JUDGE EDMUND A. SARGUS, JR.

et al., Magistrate Judge Kemp

 

Defendants. :

 REPORT AND RECOMMENDATION

 This prisoner civil rights case is before the Court to

consider defendants’ motion for judgment on the pleadings. An

extensive recitation of the facts or procedural history of the

case is unnecessary because the motion raises a single issue:

must the complaint be dismissed because the defendants have been

sued only in their official capacities and this is a suit for

money damages? 

Mr. Brown does not disagree with the premise of the motion

that suits for money damages pleaded against state officials are

barred by the Eleventh Amendment, and that is a correct statement

of the law. See, e.g., Will v. Michigan Dep't of State Police,

491 U.S. 58, 64 (1989); Kentucky v. Graham, 473 U.S. 159, 165-66,

(1985); Whittington v. Milby, 928 F.2d 188, 193 (6th Cir. 1991). 

However, he claims to have been denied access to proper legal

materials when he drafted the complaint, and he has asked the

Court, in his opposing memorandum, for leave to amend the

complaint to allege the same claims against the same defendants

but in their individual capacities. Thus, the only question

before the Court is whether it should permit him to do so.

In Moore v. City of Harriman, 272 F.3d 769 (6th Cir. 2001),

the Court of Appeals made it clear that as long as the “course of

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proceedings” in a case indicate that it is the plaintiff’s intent

to sue state defendants in their individual capacities, the case

should not be dismissed simply because the complaint does not

contain that allegation explicitly. Id. at 772. It recognized

that such an intent can be demonstrated in various ways and at

various times throughout the course of the proceedings, such as

in subsequent pleadings or even in a memorandum filed in response

to a summary judgment motion. Id. Moore also suggests, at 772

n.1, that the issue is one of notice and fairness, and that as

long as a case is in its early stages, it is not unfair to allow

various filings to provide the defendants with notice that they

are being sued in their individual capacities. 

Other courts have permitted amendments under the liberal

policy contained in Fed.R.Civ.P. 15(a) to correct this type of

pleading problem as long as this procedure does not prejudice the

defendants. See, e.g., Tanney v. Boles, 400 F.Supp. 2d 1027,

1038 (E.D. Mich. 2005). This Court sees no reason not to do the

same, and it perceives no prejudice which will result if the

amendment is permitted. Certainly, the case is in its early

stages, and defendants have not argued the issue of prejudice

(and did not file a reply brief after Mr. Brown filed the

responsive memorandum in which he asked for leave to amend). 

Therefore, it is recommended that the complaint be deemed amended

to allege claims for monetary relief against the defendants in

their individual capacities, and that the motion for judgment on

the pleadings (#10) be denied.

 PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

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of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

 /s/ Terence P. Kemp 

 United States Magistrate Judge

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