RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0136p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

B ENJAMIN S TANLEY , Plaintiff

- Appellant ,

v

.

W ESTERN M ICHIGAN U NIVERSITY ; W ARREN H ILLS and K ATIE D E C AMP , individually and in their professional capacities, Defendants

- Appellees

. ┐

│ │ │ │ │ │ │ │ │ ┘ No. 23

- 1808

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:23

- cv

- 00206

— Jane M. Beckering, District Judge.

Decided and Filed: June 24, 2024 Before: CLAY, THAPAR, and MATHIS, Circuit Judges.

_________________ COUNSEL

ON BRIEF : Eric Delaporte , DELAPORTE LYNCH, PLLC, Mason, Michigan, for Appellant. Daniel B. Tukel, Joseph E. Richotte, BUTZEL LONG, P.C., Troy, Michigan, for Appellees.

_________________ OPINION

_________________ MATHIS, Circuit Judge. Benjamin Stanley worked for Western Michiga n University (“WMU”) for about one month when WMU terminated his employment. Stanley then sued WMU and a few of its employees. He claimed that WMU and certain supervisors discriminated and retaliated against in violation of the Americans with Disabilitie s Act (“ADA”). Stanley also brought a claim under Michigan’s Persons with Disabilities Civil Rights Act (“PWDCRA”), 

### >No. 23

- 1808 Stanley v. W. Mich. Univ. Page 2

as well as a claim for intentional infliction of emotional distress. The district court dismissed Stanley’s federal claims for lack of sub ject

- matter jurisdiction based on Eleventh Amendment immunity and dismissed his state

- law claims for failure to comply with the Michigan Court of Claims Act’s notification statute. See Mich. Comp. Laws § 600.6431. The district court also
denied leave for Stanley to amend his complaint. We affirm the district court’s dismissal of Stanley’s federal claims and the denial of Stanley’s motion for leave to amend his complaint, but we vacate the judgment in part and remand to the district court to dismiss Stanl ey’s federal and

state

- law claims without prejudice.

I.
WMU is a public university in Michigan. WMU employed Benjamin Stanley as a utility food worker in its dining hall for 31 days, from early October to mid

- November 2020. Stanley
claims he did not c omplete training for the job because “[p]artway through the training, the employee leading the training was called away for another task.” R. 1, PageID 2.
WMU terminated Stanley’s employment during his probationary period for excessive
tardiness and fai lure to follow proper clocking

- in procedures. Stanley has severe ADHD that he claims impacted his ability to timely clock in, such as by causing him to occasionally forget his swiping ID card. Stanley claims he was “disciplined for being late after havin g to wait for WMU staff to perform his required temperature check for COVID

- 19 purposes,” even though he was told he would not be disciplined following such occurrences. Id. at 3. Because Stanley sometimes forgot his ID card, he requested a reasonable ac commodation

— such as a punch card to be kept onsite

—

which WMU denied. Stanley also spoke to WMU’s office of institutional equity to determine whether he would be able to use his service dog in any department, including dining services, which Stanley claims led to employees in that office “asking improper questions regarding [his] disability.” Id. Stanley disclosed the tasks his service dog performed but did not elaborate on his disability or medical history.
Before Stanley requested a reasonable accommoda tion, he was “told that he was doing a fine job and was on track to complete his probationary period.” Id. However, “WMU’s praise changed” when, on or about November 10, 2020, WMU told Stanley to stop showing up to workNo. 23

- 1808 Stanley v. W. Mich. Univ. Page 3

late. Id. at 4. Stanley claims t hat he could not comply with WMU’s timeliness standards because of his disability, for which WMU did not provide a reasonable accommodation. Katie DeCamp, the head supervisor of dining services at WMU, indicated that Stanley was told during training that he could use the speaker at the building’s entrance to ask someone to open the door for him so that he would not be late, but Stanley claims he was never told about the speaker. On November 10, Stanley claims he was informed that the hospitality departmen t “doesn’t do” accommodations, after which he contacted WMU’s human resources department. Id. The following day, WMU terminated Stanley.
After receiving his notice of right to sue from the U.S. Department of Justice, Stanley filed suit. He brought thre e claims: (1) discrimination under Title I of the ADA; (2) retaliation and intimidation under Title V of the ADA and under the PWDCRA; and (3) intentional infliction of emotional distress against all defendants, including unknown John Doe and Jane Doe empl oyees of WMU, in their individual and professional capacities. Stanley sought the following relief: “actual and compensatory damages”; punitive damages, attorney fees, and costs; “whatever other legal or equitable remedies [the district court] deems reaso nable and just pursuant to statute and common law”; and “any other relief the [district court] deems fit.” Id. at
6.
WMU, DeCamp, and Warren Hills (“Defendants”) moved to dismiss Stanley’s complaint. They sought to dismiss the ADA claims for lack of su bject

- matter jurisdiction on Eleventh Amendment immunity grounds, and the state

- law claims for failure to comply with Michigan procedural law. Stanley responded in opposition to Defendants’ motion and sought leave to amend his complaint.

The district cour t dismissed all of Stanley’s claims against Defendants with prejudice. The district court also denied Stanley leave to file an amended complaint, finding that Stanley’s proposed amendment would be futile.

II.
As an initial matter, Defendants contend that we lack jurisdiction to adjudicate Stanley’s appeal. That is because, according to Defendants, when Stanley appealed, the district court hadNo. 23

- 1808 Stanley v. W. Mich. Univ. Page 4

not entered a final judgment. And when the district court did enter a final judgment, Stanley did not file a new or amended notice of appeal.
Before reaching the merits, we must ensure that we have appellate jurisdiction. Watkins v. Healy , 986 F.3d 648, 657 (6th Cir. 2021). Subject to exceptions not applicable here, Con gress has granted us appellate jurisdiction “only from ‘final decisions’ of the district courts.” Mitchell v. Forsyth , 472 U.S. 511, 524 (1985) (quoting 28 U.S.C. § 1291). A final decision “ends the litigation on the merits and leaves nothing for the cou rt to do but execute the judgment.” Catlin
v. United States , 324 U.S. 229, 233 (1945). After entry of a final decision, a party must generally file a notice of appeal within 30 days. Fed. R. App. P. 4(a)(1). Filing a notice of appeal “after the court a nnounces a decision or order

— but before entry of the judgment or
order

— is treated as filed on the date of and after the entry.” Fed. R. App. P. 4(a)(2); see Bonner v. Perry , 564 F.3d 424, 427 (6th Cir. 2009).
On August 7, 2023, the district court dismissed all claims that Stanley brought against Defendants and denied Stanley leave to file an amended complaint. The district court also gave Stanley fourteen days to show cause why the John Doe and Jane Doe defend ants should not be dismissed “for failure to timely identify and effect service on them.” R. 19, PageID 235. Stanley did not respond to the show

- cause order. Instead, on September 5, 2023, he filed a notice of appeal. On September 7, the district court dismissed Stanley’s claims against John Doe and Jane Doe without prejudice and entered a final judgment. 1 Thus, Stanley filed a notice of appeal two days before the district court made its “final decision.” See 28 U.S.C. § 1291.
Stanley’s premature no tice of appeal does not deprive us of jurisdiction. “A notice of appeal filed too early,” as we explained recently, “ripens when the window to appeal begins.”
Winters v. Taskila , 88 F.4th 665, 671 (6th Cir. 2023); see Preferred Props., Inc. v. Indian Riv er Ests., Inc. , 276 F.3d 790, 796 n.4 (6th Cir. 2002) (“[A] premature notice of appeal is effective to vest appellate jurisdiction when the judgment becomes final prior to the disposition of the appeal.”). Stanley’s notice of appeal ripened on September 7 , 2023. We therefore have jurisdiction.

1 Stanley does not appeal the dismissal of the claims against the unknown John Doe and Jane Doe employees of WMU.No. 23

- 1808 Stanley v. W. Mich. Univ. Page 5

III.
The district court dismissed Stanley’s ADA claims against Defendants for lack of subject

- matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), finding Defendants were entitled to sovereign immunit y. We review that decision de novo. Skatemore, Inc. v.
Whitmer , 40 F.4th 727, 731 (6th Cir. 2022). In doing so, we “construe the complaint in the light most favorable to the Plaintiff[]; however, [we] need ‘not presume the truth of factual allegations
p ertaining to our jurisdiction to hear the case.’” Id. at 731

– 32 (quoting Russell v. Lundergan

Grimes , 784 F.3d 1037, 1045 (6th Cir. 2015)).
The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const. amend. XI. The Eleventh Amendment bars actions “against states unless they

consent t o be sued or Congress, pursuant to a valid exercise of its power, unequivocally expresses its intent to abrogate sovereign immunity.” Ashford v. Univ. of Mich. , 89 F.4th 960, 969 (6th Cir. 2024) (citations omitted). And that bar also applies to “state of ficers acting in their official capacity” and “entities acting on behalf of the state.” Id. Although the text does not explicitly say so, Eleventh Amendment immunity precludes suits brought against a State by its
own citizens. Tennessee v. Lane , 541 U.S. 509, 517 (2004).
The Eleventh Amendment affords broad protections for States against priv ate suits. Unless immunity is removed, individuals cannot seek “monetary damages or retrospective relief.” Ashford , 89 F.4th at 969. But they can “seek prospective injunctive relief against state officials in their official capacity before those officia ls violate the plaintiff’s federal constitutional or statutory rights.” Skatemore , 40 F.4th at 733; see Ex parte Young , 209 U.S. 123 (1908).
With this background in mind, we now address whether Defendants are entitled to immunity from Stanley’s ADA claims

.No. 23

- 1808 Stanley v. W. Mich. Univ. Page 6

A. Discrimination under Title I of the ADA
In Count I of his complaint, Stanley brought a claim under Title I of the ADA, which prohibits employers from discriminating against employees “on the basis of disability.” 42 U.S.C. § 12112(a). He sought var ious forms of monetary damages and “whatever other legal or equitable remedies [the district court] deem[ed] reasonable and just pursuant to statute and common law.” R. 1, PageID 6.
WMU is chartered under the Michigan Constitution. See Mich. Const. art . VIII, § 4; W. Mich. Univ. Bd. of Control v. State , 565 N.W.2d 828, 832 (Mich. 1997) (opining that “[s]tate universities are clearly a part of state government in Michigan” and that “Western Michigan University is ‘the state’”). State universities in Mic higan “are organically part of the state government.” W. Mich. Univ. Bd. of Control , 565 N.W.2d at 832 (citing Auditor Gen. v. Regents of the Univ. , 47 N.W. 440, 441 (Mich. 1890)). Because WMU is an arm of the State of Michigan, a suit against WMU is a s uit against Michigan. And the Supreme Court has held that an employee cannot maintain an action under Title I of the ADA against the State. Bd. of Trs. of Univ. of Ala. v. Garrett , 531 U.S. 356, 360 (2001).
Recognizing that Garrett bars his claim for mo ney damages, Stanley tries to take advantage of the Ex parte Young exception to Eleventh Amendment immunity. But Ex parte Young does not allow suits “against the state itself.” Puckett v. Lexington

- Fayette Urb. Cnty.
Gov’t , 833 F.3d 590, 598 (6th Cir. 20 16) (citation omitted). Thus, Ex parte Young does not apply to Stanley’s ADA discrimination claim against WMU.
But what about his ADA discrimination claims against DeCamp and Hills? Those must also fail. To the extent Stanley seeks damages against DeCamp and Hills in their official capacities, they enjoy Eleventh Amendment immunity. See Boler v. Earley , 865 F.3d 391, 409

– 10 (6th Cir. 2017) (“[Eleventh Amendment immunity ] protects states, as well as state officials sued in their official capacity for money damages, from suit in federal court.”). And to the extent he seeks damages against them in their personal capacities, they are not subject to liability under
the ADA. See Hiler v. Brown , 177 F.3d 542, 546 (6th Cir. 1999) (personal

- capacity defendants are not “employers” under Title VII of the Civil Rights Act of 1964); Wathen v. Gen. Elec. Co. ,No. 23

- 1808 Stanley v. W. Mich. Univ. Page 7

115 F.3d 400, 404

– 405 & n.6 (6th Cir. 1997) (noting Title VII and the ADA a re “essentially the same” with respect to “an employee/supervisor’s individual liability”).
Stanley also fails to allege the necessary facts that show that his requested relief

— an injunction barring all Defendants, including DeCamp and Hills, from firing h im

— will redress his injury. Nowhere does his complaint specify that DeCamp and Hills fired him or can reinstate him. Therefore, he lacks standing to pursue injunctive relief against DeCamp and Hills.

B. Retaliation under Title V of the ADA

In Count II o f his complaint, Stanley alleges that WMU retaliated against him in
violation of Title V of the ADA. Specifically, Stanley contends that “WMU retaliated against [him] by firing him for simply exercising his rights under the ADA . . . when making reasonabl e request [sic] for an accommodation based in alternative method [sic] for clocking in and for the use of his service animal.” R. 1, PageID 6. Title V prohibits employers from retaliating against employees for “oppos[ing] any act or practice made unlawfu l by [the ADA].” 42 U.S.C. § 12203(a).
Neither the Supreme Court nor this court has addressed previously whether the States are entitled to immunity from claims brought under Title V of the ADA. See Cook v. Garner , No. 19

- 5931, 2020 WL 4876309, at *3 (6th Cir. June 17, 2020) (order). To deter mine whether WMU is entitled to Eleventh Amendment immunity from Stanley’s Title V ADA claim, we must decide: (1) “whether Congress unequivocally expressed its intent to abrogate that immunity” and, if so, (2) “whether Congress acted pursuant to a valid gr ant of constitutional authority.” Kimel v. Fla. Bd. of Regents , 528 U.S. 62, 73 (2000).
Congress clearly expressed its intention to abrogate Eleventh Amendment immunity in the ADA. It stated that “[a] State shall not be immune under the eleventh amendmen t to the Constitution . . . from an action in Federal or State court of competent jurisdiction for a violation of [the ADA].” 42 U.S.C. § 12202.
So we consider whether Congress had constitutional authority to remove the States’ immunity for claims brough t under Title V. Congress cannot rely on “the powers enumerated inNo. 23

- 1808 Stanley v. W. Mich. Univ. Page 8

Article I” of the Constitution to remove Eleventh Amendment immunity. Garrett , 531 U.S. at 364. It can apply the ADA to the States only “pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment.” Lane , 541 U.S. at 518 (citation omitted); Garrett , 531 U.S. at 364; see also 42 U.S.C. § 12101(b)(4). Section 5 grants Congress authority “to pass appropriate legislation to enforce the Fourteenth Amendment.” Trump v. An derson , 601 U.S. 100, 109

– 10 (2024) (per curiam) (internal quotation marks omitted). This power to enforce the Fourteenth Amendment “includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat bro ader swath of conduct, including that which is not itself forbidden by the Amendment’s text.” Kimel , 528 U.S. at 81.
We must first identify “the scope of the constitutional right at issue.” Garrett , 531 U.S. at 365. That constitutional right comes from § 1 of the Fourteenth Amendment, which protects individuals’ equal

- protection and due

- process rights from encroachment by the States. The Supreme Court has held previously that “States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions toward such individuals are rational.” Id. at 367. Title V’s prohib ition against retaliation protects related but
nonetheless distinct interests than Title I. Cf. Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 63 (2006) (“The substantive provision [of the related and substantively identical Title VII] seeks to p revent injury to individuals based on who they are, i.e., their status. The antiretaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct.”). But, as in this case, Title V claims are frequently predicated on Ti tle I claims, such as when a plaintiff alleges retaliation for complaining about the very disability discrimination he experienced. It logically follows that if states have no affirmative duty, beyond rationality, to
accommodate a disabled citizen in that instance, then the right against retaliation for opposition to such discrimination is similarly narrow.
Next, we must consider “whether Congress identified a history and pattern of unconstitutional” retaliation in the employment context “by the States aga inst the disabled.”
Garrett , 531 U.S. at 368. Congress’s legislative findings do not reveal a history of the
States retaliating against their employees for opposing disability discrimination. See 42 U.S.C. § 12101(a). And the House and Senate Committee Reports on the ADA “made no mention ofNo. 23

- 1808 Stanley v. W. Mich. Univ. Page 9

discrimination in public employment.” Lane , 541 U.S. at 522 (citation omitted). Not surprisingly, the committee reports do not discuss employment retaliation based on opposing disability discrimination in the publi c sector. See H.R. Rep. No. 101

- 485 (1990); S. Rep. No.
101

- 116 (1989).
Because Congress’s legislative findings and the congressional record do not reflect a history and pattern of retaliation by the States against public employees for opposing disabili ty discrimination, we hold that Congress did not have authority under § 5 of the Fourteenth Amendment to remove States’ Eleventh Amendment immunity for ADA retaliation claims predicated on a violation of Title I of the ADA. Our holding flows naturally fro m Garrett : if Congress did not validly abrogate Eleventh Amendment immunity for Title I claims, then it also did not abrogate Eleventh Amendment immunity for a claim under Title V alleging retaliation
for a Title I claim. See D upree v. Owens , 92 F.4th 999 , 1007 (11th Cir. 2024) (“Title V cannot serve as a congruent and proportional remedy when paired with a Title I claim. . . . [W]hen the underlying provision

—here, Title I

— does not allow a plaintiff to assert a claim against the State, it logically follows that a Title V claim that is based on the exercise of a right arising only from Title I cannot be levied against the State.”). In reaching our holding today, we join every circuit
to have addressed this issue. See id. ; Block v. Tex. Bd. of Law Exam’rs
, 952 F.3d 613, 619 (5th Cir. 2020); Demshki v. Monteith , 255 F.3d 986, 989 (9th Cir. 2001).

The Ex parte Young exception does not help Stanley for his retaliation claim any more than for his discrimination claim. He cannot obtain an injunction against WM U because WMU
functions as the State. See Puckett , 833 F.3d at 598. And, as stated above, his request for injunctive relief from the individual Defendants was deficient.

* * *
The district court lacked subject

- matter jurisdiction to adjudicate Stanley’s ADA claims because Defendants are entitled to Eleventh Amendment immunity, and Stanley lacks standing to request injunctive relief from DeCamp and Hills. Because the dismissal was for lack of subject

- matter jurisdiction, the district court should have di smissed Stanley’s ADA claims without prejudice. See Taylor v. Owens , 990 F.3d 493, 496 (6th Cir. 2021).No. 23

- 1808 Stanley v. W. Mich. Univ. Page 10

IV.
Stanley brought state

- law PWDCRA and intentional

- infliction

- of

- emotional

- distress claims against Defendants. The district court could resolve those claims only through supplemental jurisdiction because there was no basis for original jurisdiction. See 28 U.S.C. § 1367(a). District courts do not have to exercise supplemental jurisdiction, and they may decline to do so if, as relevant here, “the district court has dismissed all claims over which it has original jurisdiction[.]” Id. § 1367(c)(3). Thus, a district court has discretion in deciding whether to exercise supplemental jurisdiction. “That discretion, however, is bounded by constitutional and prudential limits on the use of federal judicial power.” Musson Theatrical, Inc. v. Fed. Express Corp. , 8 9 F.3d 1244, 1254 (6th Cir. 1996), as amended , 1998 WL 117980 (6th Cir. Jan. 15, 1998) (order).
Not all pretrial dismissals are created equal. “When all federal claims are dismissed before trial, the balance of considerations usually will point to dismi ssing the state law claims[.]”
Id. at 1254

– 55 (citing Carnegie

- Mellon Univ. v. Cohill , 484 U.S. 343, 350 n.7 (1988)). But when federal claims are dismissed under Federal Rule of Civil Procedure 12(b)(1), “supplemental jurisdiction can never exist” because a Rule 12(b)(1) dismissal indicates “that there never was a valid federal claim.” Id. at 1255. That is the case here. The district court did not have jurisdiction to decide Stanley’s state

- law claims because “the district court lacked subject matter ju risdiction over any federal issues.” Bigelow v. Mich. Dep’t of Nat. Res. , 970 F.2d 154, 160 (6th Cir. 1992); see also Musson , 89 F.3d at 1256 (“[W]hen a federal claim is dismissed as insubstantial, the Constitution absolutely forbids a district court from exercising supplemental jurisdiction over any remaining state claim.”); Whittington v. Milby , 928 F.2d 188, 194 (6th Cir. 1991) (per curiam) (holding that state law claims “should have been dismissed without prejudice once plaintiff’s federal jurisdiction al claim was held to be inappropriate.” (internal quotation marks omitted)); Dakota, Minn. & E. R.R. Corp v. Schieffer , 715 F.3d 712, 713 (8th Cir. 2013) (opining that “courts have uniformly held that” supplemental jurisdiction is unavailable “when origina l federal jurisdiction is wholly lacking”). Therefore, we remand to the district court with instructions to dismiss those claims without prejudice. See Whittington , 928 F.2d at 194; 28 U.S.C. § 2106.No. 23

- 1808 Stanley v. W. Mich. Univ. Page 11

V.
Finally, we address the district court’s denial of Stanley’s motion to amend his complaint. We generally review the district court’s decision to deny a motion to amend a complaint for an
abuse of discretion. U.S. ex rel. Sheldon v. Kettering Health Network , 816 F.3d 399, 407 (6th Cir. 2016). But because the district court’s denial rests on the conclusion that amendment would be futile, we review the decision de novo. Id.
Under Federal Rule of Civil Procedure 15, a party may amend his pleading with the court’s approval, which shall be freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2). There are circumstances, however, where justice counsels against amendment, “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.” Foman v. Davis , 371 U.S. 178, 182 (1962). An amendment is futile “when, after including the proposed changes, the complaint st ill could not withstand a Rule 12(b)(6) motion to dismiss.” Skatemore , 40 F.4th at 737

– 38 (internal quotation marks omitted).
To survive a motion to dismiss under Rule 12(b)(6), a complaint must include “enough facts to state a claim to relief that is p lausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). Thus, a plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqb al , 556 U.S. 662, 678 (2009). Courts construe the complaint in the light most favorable to the plaintiff and accept the complaint’s well

- pleaded factual allegations as true. Thompson v. Bank of Am., N.A. , 773 F.3d 741, 750 (6th Cir. 2014).
Stanley’s pro posed amended complaint included eight additional paragraphs, and he requested to amend the relief sought to include an order that would enjoin Defendants from firing him and that would reinstate him to his position at WMU. Specifically, Stanley argues th at his proposed amended complaint “would have provided clarification and additional factual allegations to further support his claim for Ex parte Young relief, cure other minor deficiencies inNo. 23

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the pleading, and would have ensured [he] withstood a 12(b)(6) motion to dismiss.” D. 14 at p.28.
The district court did not err in denying Stanley’s motion. First, none of the newly added paragraphs include facts that would support a claim under Ex parte Young . The only one that comes remotely close is Paragraph 3 of the proposed amended complaint where Stanley claims “[d]uring all relevant times, Defendants Warren Hills, Katie DeCamp, and Unknown John Doe and Jane Doe employees of WMU acted as agents of WMU, and upon information and belief,
maintained 15 or more e mployees each working day.” R. 17

- 2, PageID 200. Stanley added this allegation so that the district court would consider Hills and DeCamp “employers,” which could trigger personal liability under the ADA. But it states a legal conclusion that the distri ct court did not have to accept as true. See Iqbal , 556 U.S. 662, 678. Second, his proposed amended complaint does not indicate that DeCamp or Hills have the power to reinstate him. Although Stanley claims DeCamp and Hills “presumably had the power to reinstate” by virtue of their positions at WMU, D. 14 at p.32, we are not required to presume as much.

VI.
For the foregoing reasons, we AF FIRM the district court’s dismissal of Stanley’s ADA claims and the denial of Stanley’s motion for leave to amend his complaint. We VACATE the district court’s judgment dismissing Stanley’s federal and state

- law claims with prejudice and REMAND this case to the district court with instructions to dismiss Stanley’s federal and state

law claims without prejudice.