United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 6, 2011*

Decided August 3, 2011

Before

JOEL M. FLAUM, Circuit Judge

DIANE P. WOOD, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 10-3118

THEODORA WESTON,

Plaintiff-Appellant,

v.

ILLINOIS DEPARTMENT OF HUMAN

SERVICES, et al.,

Defendants-Appellees.

Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division.

No. 10 C 977

Charles R. Norgle,

Judge.

O R D E R

Theodora Weston appeals the denial of her post-judgment motion for leave to amend

her complaint in her suit under 42 U.S.C. § 1983 and the Fair Labor Standards Act, see 29 U.S.C.

§§ 201-219, against the Illinois Department of Human Services and Aunt Martha’s Youth

Services Center. We affirm.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1

*

 After examining the briefs and the record, we have concluded that oral argument is

unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed. R. App. P.

34(a)(2)(C).
No. 10-3118 Page 2

The IDHS administers the state’s Temporary Assistance for Needy Families program

(“TANF”), which uses federal block grants to fund welfare projects, with the goal of helping

families become financially self-sufficient. See 42 U.S.C. §§ 601-619; 305 ILCS §§ 5/2-12(2), 5/4-

0.5-23. One component of TANF is the Work First program, in which participants receive work

assignments so that they can gain marketable skills and experience. Participants are paid for

their assignments – no more than their families’ monthly TANF allotments – while they look

for unsubsidized employment. See 89 Ill. Admin. Code § 112.78(n). Aunt Martha’s, a socialservice agency, contracts with the state to place Work First participants in work assignments.

Weston, a former attorney, alleged in her pro se complaint that she had received TANF

aid and participated in Work First, and that IDHS and Aunt Martha’s violated the FLSA by

paying her and other Work First participants only $3.17 per hour, less than the federal

minimum wage. She sought an order requiring the Work First program to pay all participants

the minimum wage. (Weston’s complaint also included an equal protection claim against IDHS

and the Illinois Department of Healthcare and Family Services, but she has abandoned it by not

addressing it in her post-judgment motion or on appeal.)

The district court dismissed Weston’s claims against IDHS, a state agency, on Eleventh

Amendment grounds, and shortly thereafter dismissed her FLSA claim against Aunt Martha’s

because she failed to allege that Aunt Martha’s ever employed her. The court promptly entered

judgment dismissing the case. Six days later Weston filed a “Motion to Reinstate with Leave

to Amend and With Appointment of Counsel,” asserting that the court failed to consider

authority she cited regarding her FLSA claim, and that she should be permitted to amend the

complaint “to more accurately denote [her] employer/employee status” with the state and Aunt

Martha’s. The court denied the motion, stating that “any attempt to amend the Complaint

would be futile.”

Weston argues on appeal that she should have been permitted to amend her complaint. 

She maintains that she had an employer-employee relationship with IDHS and Aunt Martha’s,

whom she describes as “joint employers.” According to Weston, Aunt Martha’s controlled

where Work First participants worked and administered the program with assistance from

IDHS. Weston also challenges the district court’s denial of her request for appointment of

counsel.

Prior to the 2009 amendment to Federal Rule of Civil Procedure 15(a), a plaintiff like

Weston would have been entitled to amend her complaint once as a matter of right, and a

plaintiff could not lose that right through premature entry of judgment dismissing a case. Even

after the amendment to Rule 15(a), a district court should freely give a plaintiff leave to amend

a complaint when justice requires it. Fed. R. Civ. P. 15(a)(2). That liberal policy toward

amending pleadings, especially in a first effort to amend, should remain in effect even if a
No. 10-3118 Page 3

district court elects to enter judgment, perhaps prematurely, upon granting a motion to dismiss. 

See, e.g., Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010) (district court erred by entering

judgment after Rule 12(b)(6) dismissal where plaintiff sought to amend complaint to address

perceived mistakes; proposed amendment to complaint was not futile).

Nevertheless, a district court should deny a motion for leave to amend if the proposed

amendment is futile, as when, for example, the amended pleading would not survive a motion

to dismiss. See, e.g., Arlin-Golf, LLC v. Village of Arlington Heights, 631 F.3d 818, 823 (7th Cir.

2011); London v. RBS Citizens, N.A., 600 F.3d 742, 747 n.5 (7th Cir. 2010). We agree with the

district court that amendment would have been futile in this case. As a state agency, IDHS is

not a “person” amenable to a § 1983 suit, see Illinois Dunesland Preservation Soc’y v. Ill. Dep’t of

Natural Res., 584 F.3d 719, 721 (7th Cir. 2009), and furthermore is immune from a suit for

damages under the Eleventh Amendment, see Burrus v. State Lottery Comm’n of Indiana, 546 F.3d

417, 420 (7th Cir. 2008); Kroll v. Board of Trustees of University of Illinois, 934 F.2d 904, 907 (7th Cir.

1991). Even if we were to accept that Aunt Martha’s was Weston’s employer for purposes of

the FLSA, Weston ignores the value of the food stamps she received, which under the Work

First program count in combination with TANF aid toward minimum-wage requirements. See

89 Ill. Admin. Code § 112.78(n)(2)(A) (explaining that work hours per month “shall not exceed

the family’s monthly TANF grant and food stamp allotment divided by the higher of the State

or federal minimum wage”). Because Weston did not explain – even after her complaint was

dismissed – how her minimum-wage claim was plausible, she did not state a claim against

Aunt Martha’s. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Zellner v. Herrick, 639 F.3d 371,

378 (7th Cir. 2011).1

Finally, because Weston’s claims so clearly lacked merit, the district court did not err in

denying her request for appointment of counsel. See Pruitt v. Mote, 503 F.3d 647, 659 (7th Cir.

2007).

Accordingly, we AFFIRM the judgment of the district court.

1

As a former attorney, Weston has only the most tenuous claim to the more forgiving

pleading standards we afford typical pro se plaintiffs. See Haines v. Kerner, 404 U.S. 519, 520

(1972) (holding pro se complaints to “less stringent standards than formal pleadings drafted

by lawyers”).