Fifth Circuit Reverses Sua Sponte Dismissal with Prejudice of Section 1983 Damages Action That Named Officers in Official Rather Than Individual Capacity

In Carver v. Atwood, No. 21-40113 (5th Cir. Nov. 18, 2021), the Fifth Circuit reverses a district court’s decision to dismiss an action brought against three Texas state officers of the Texas Department of Criminal Justice (“TDCJ”) on sovereign immunity grounds under Fed. R. Civ. P. 12(b)(1) without leave to amend.

The plaintiff “alleged the three men (the ‘individual defendants’) had sexually assaulted her at the Stiles Unit [of TDCJ]. She brought causes of action under both 42 U.S.C. § 1983 and Texas common law. The complaint specified that Carver was suing these defendants in their official capacities.” She also named the TDCJ. The district court dismissed the claims against the TDCJ on Eleventh Amendment sovereign immunity grounds, but prepared to default the individual defendants, ordering them to “show cause . . . why a default judgment in favor of Plaintiff Tiffany Carver should not be granted against them.”

“Then the court shifted course. Without giving Carver notice or an opportunity to respond, the court dismissed her claims against the individual defendants with prejudice. The court reasoned that, because Carver had sued the three in their official capacities for money damages, the suits were prima facie barred by sovereign immunity. And because no exception to that immunity applied, the court lacked jurisdiction entirely.”

While agreeing with the district court’s reasoning and the granting of a dismissal sua sponte, the Fifth Circuit reverses in a short opinion on the procedural ground that the plaintiff ought to have been granted leave to amend the complaint to sue the officers in their individual capacity.

The panel holds that the Federal Rules of Civil Procedure support the plaintiff’s power to correct a defendant who is named erroneously in their official instead of individual capacity. “Rule 18 allows plaintiffs to ‘join, as independent or alternative claims, as many claims as [they have] against an opposing party.” Fed. R. Civ. P. 18(a). And Rule 20 gives plaintiffs latitude to join defendants. See Fed. R. Civ. P. 20(a)(2) ….”

“Rules 18 and 20 say nothing about adding a claim or a party after the original complaint’s filing. That is where Rule 15 comes in …. Rule 15 gives plaintiffs a temporary right to amend their complaints. See Fed. R. Civ. P. 15(a)(1) …. And Rule 15(a)(2) requires courts ‘freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2).” Here, Carver “could have amended her complaint to sue the individual defendants in their personal capacities …. Or, depending on the underlying facts, perhaps Carver could have avoided sovereign immunity by adding a new defendant or a new claim.”

The panel also notes that “[o]ur precedents also make clear that a jurisdictional dismissal must be without prejudice to refiling in a forum of competent jurisdiction …. This rule applies with equal force to sovereign-immunity dismissals.” The only exception the Fifth Circuit notes to the general rule of liberal repleading is where the plaintiff (1) “repeatedly declared the adequacy of that complaint in . . . response to [the] defendant’s motion to dismiss” and (2) “refused to file a supplemental complaint even in the face of a motion to dismiss.” But “[g]iven that the defendants did not respond in any way to Carver’s complaint, the best-case exception is inapplicable.”

(Ed. note: Indeed, it’s hard to understand why the individual defendants defended this appeal at all.)