                                                                             [PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT                         FILED
                                _________________________          U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                       No. 98-4947                         06/14/99
                                _________________________              THOMAS K. KAHN
                                                                            CLERK
                             D. C. Docket No. 97-3291-CIV-JLK

MARGARET MCKINLEY,

                                                           Plaintiff-Appellant,

       versus

BRUCE KAPLAN, in his official capacity,
MIAMI-DADE COUNTY, a political
subdivision of the State of Florida,

                                                           Defendants-Appellees.


                                 ________________________

                      Appeal from the United States District Court for the
                              for the Southern District of Florida
                                ________________________
                                        (June 14, 1999)

Before EDMONDSON and MARCUS, Circuit Judges, and ALARCON*, Senior
Circuit Judge.




       *
        Honorable Arthur L. Alarcón, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
PER CURIAM:

      This is a First Amendment retaliation claim brought by Margaret McKinley

against Miami-Dade County (“County”) and former County Commissioner Bruce

Kaplan for the county’s removal of McKinley from the Miami-Dade County Film,

Print and Broadcast Advisory Board (“Film Board”). The Film Board was created by

the County for the purpose of advising it on policy issues concerning the

entertainment industry in the area. McKinley was originally appointed to the Film

Board by Commissioner Kaplan. In the fall of 1997, heated political debate arose in

the Miami area regarding the County’s policy of suspending persons or entities who

do business with Cuba from using the County’s public facilities. On September 23,

1997, the Miami Herald reported McKinley as criticizing existing policy by saying,

“While we respect and appreciate the concerns of Cuban Americans in the exile

community, allowing a few people’s political standpoint to dictate the potential

economic growth of the area is not for the benefit of the community as a whole.” That

same day, Commissioner Kaplan wrote McKinley to inform her that he was removing

her as his appointee to the Film Board because of these comments, which he viewed

as “inappropriate and insulting.” McKinley was then formally removed from her

position on the Film Board by a vote of the Board of County Commissioners.




                                         2
       On October 14, 1997, McKinley brought this action under 42 U.S.C. § 1983,

alleging that her removal from the Film Board violated her First Amendment right to

free speech, as incorporated against the states by the Fourteenth Amendment.

McKinley’s complaint sought only injunctive and declaratory relief – in effect,

reinstatement to the Film Board – as a remedy. However, while this action was

pending in the district court, on April 15, 1998, Commissioner Kaplan resigned from

the Board of County Commissioners.1 Under the ordinances of Miami-Dade County,

“when the Commissioner who appointed a board member leaves office, the terms of

his or her appointees to County boards shall expire.” Dade County Code § 2-

11.38.2(c). The parties agree that by operation of this section, McKinley’s entitlement

to her seat on the Film Board expired and she ceased to have any right to

reinstatement on the date Kaplan resigned.

       The cessation of McKinley’s term of appointment created a mootness problem

with the instant litigation because she could no longer be reinstated and reinstatement

was the only type of relief sought. This mootness problem generated additional

pleadings from both sides the following week. The County moved to dismiss for lack

of subject matter jurisdiction, while McKinley filed a motion to amend her complaint


       1
        Mr. Kaplan resigned from his position as a county commissioner as part of a plea bargain
agreement regarding certain criminal charges brought against him by the State Attorney in Miami-
Dade County.

                                               3
to add a claim for money damages under § 1983.2 See Adler v. Duval Cty. Sch. Bd.,

112 F.3d 1475, 1478 (11th Cir. 1997) (noting that while high school students’

Establishment Clause claims against school officials regarding policy allowing prayer

at graduation ceremony were mooted by students’ graduation, “[b]ecause the

[students’] claim for money damages does not depend on any threat future harm, this

claim remains a live controversy”). The district court denied leave to amend, and

dismissed McKinley’s lawsuit with prejudice. On appeal, McKinley contends that (i)

the district court erred in denying the motion to amend the complaint, and (ii) if

dismissal was proper, it should have been without prejudice.

       We review the district court’s denial of leave to amend the complaint for abuse

of discretion. See Technical Resource Servs. Inc. v. Dornier Med. Sys., Inc., 134 F.3d

1458, 1463 (11th Cir. 1998). After a responsive pleading has been served, a plaintiff

may amend a complaint by leave of court, and “leave shall be freely given when

justice so requires.” Fed. R. Civ. P. 15(a). The district court based its denial of leave

to amend on three grounds. First, it cited Arizonans for Official English v. Arizona,

117 S. Ct. 1055 (1997), and several other lower court cases, in support of the

       2
         Without expressing any view as to the merits, for purposes of resolving the mootness and
procedural questions presented here we can assume arguendo that if she was removed from the Film
Board in retaliation for the exercise of her First Amendment rights, McKinley could be entitled to
damages under 42 U.S.C. § 1983 for the interval between September 23, 1997 and April 15, 1998
when she would otherwise have been entitled to her seat. See Carey v. Piphus, 435 U.S. 247, 258-59
(1978).

                                                4
proposition that McKinley’s amendment was improper because it was “for the sole

purpose of avoiding dismissal for mootness.” District Court Order Dismissing Case,

at 5. In Arizonans for Official English, a state employee brought a § 1983 action

against the state and state officials alleging that their “English as an official language”

policy violated her First Amendment rights. During the pendency of the litigation,

however, the employee-plaintiff resigned from public sector employment to pursue

work in the private sector. In order to avoid mootness, the plaintiff, without actually

moving to amend, suggested that she might seek nominal damages a form of relief

against which the mootness bar would not apply. The Ninth Circuit accepted

plaintiff’s argument and allowed the litigation to proceed. On appeal, the Supreme

Court rejected the same reason, holding that “[a]t that stage of the litigation . . .

[plaintiff’s] plea for nominal damages was not the possibility the Ninth Circuit

imagined.” 117 S. Ct. at 1069. Plaintiff could not possibly recover nominal damages

because her cause of action was under § 1983, the only defendants were state officials

in their official capacity (which the Ninth Circuit construed as tantamount to suing the

state itself), and a § 1983 action cannot lie against a state. See id. (citing Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989)). In other words, the reason

the plaintiff’s attempted addition of a damages claim could not obviate the mootness

problem in Arizonans for Official English was that such a damages claim would, as


                                            5
a matter of law, be non-meritorious and futile. In the instant case, pursuant to well-

established precedent, the county is a proper defendant in a § 1983 action and can be

liable for money damages. See Owen v. City of Independence, 445 U.S. 622, 633,

650 (1980).

      The same rationale distinguishing Arizonans for Official English also makes

Fox v. Board of Trustees of SUNY, 42 F.3d 135 (2d Cir. 1994), cert. denied, 515 U.S.

1169 (1995), inapplicable. There, students challenged a state university regulation on

First Amendment grounds, seeking solely injunctive relief. After the litigation

commenced but while it was pending, the plaintiffs completed their undergraduate

studies and none remained enrolled. The district court therefore concluded that their

claims were moot and dismissed. See id. at 139. Attempting to revive the lawsuit, the

plaintiffs unsuccessfully argued alternately that (i) a claim for nominal money

damages could be inferred from their complaint, and (ii) they should be allowed to

amend their complaint to add a count for money damages. The Second Circuit held

that a money damages claim would have been substantively without merit because the

state enjoyed Eleventh Amendment immunity, and the individual defendants would

be protected by qualified immunity. See id. at 141 (citing Will v. Michigan Dep’t of

State Police, 491 U.S. 58, 71 (1989); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).




                                          6
Again, in the instant case, there is no such futility because no such substantive

obstacle to the merits of McKinley’s damages claim is apparent.

      The other cases cited by the district court for the proposition that McKinley’s

attempted amendment was a ploy to circumvent mootness are not dispositive. In

Tucker v. Phyfer, 819 F.2d 1030 (11th Cir. 1987), a juvenile incarcerated in an

Alabama county jail sought damages, injunctive, and declaratory relief for alleged

unconstitutional conditions that he and other juveniles were made to suffer at the jail.

During the pendency of the lawsuit, he was released from the jail and attained the age

of majority, both of which events made his complaint moot insofar as it sought

injunctive and declaratory relief. The plaintiff moved for class action certification in

an apparent attempt to keep the lawsuit alive, but the district court denied certification,

noting that at the time he moved for certification his own claim for injunctive and

declaratory relief was moot and therefore he could not prosecute that claim on behalf

of those juveniles currently incarcerated. This Court affirmed, but its reasoning was

based on the principle that “[i]n a class action, the claim of the named plaintiff, who

seeks to represent the class, must be live both at the time he brings suit and when the

district court determines whether to certify the putative class.” Id. at 1033 (citing

United States Parole Comm’n v. Geraghty, 445 U.S. 388, 404 (1980)). Based as it

was on principles unique to the intersection of class action certification and the


                                            7
mootness doctrine, Tucker is inapplicable to the instant case. Tucker means merely

that McKinley, following the April 15, 1998 expiration of her term on the Film Board,

would not have been entitled to seek class certification of her First Amendment

retaliatory discharge action.

       The case of Danzy v. Johnson, 417 F. Supp. 426 (E.D. Pa. 1976), aff’d mem.,

582 F.2d 1273 (3d Cir. 1978) (Table), is more on point than Tucker, but it is not

binding on this Court, and at any rate, its facts are distinguishable. In Danzy, a state

prison inmate sued under § 1983 for a declaratory judgment that a certain interstate

transfer agreement was unconstitutional. This claim was moot, however, because

“[n]o suggestion [was] made that plaintiff is in danger of being subjected to future

out-of-state transfers in violation of his constitutionally mandated rights.” Id. at 432.

Two years after the initial complaint was filed and over one year after the complaint

was first amended, the plaintiff moved to amend the complaint again, this time to add

a request for damages of $250.00 (lost wages during the time he was transferred out

of state). Id. at 430. The court characterized this motion as “nothing more than an

afterthought to avoid dismissal for mootness,” id. at 430, and held that the plaintiff

waived any damage claims.

      The court’s holding in Danzy was simply an application of Rule 15(a) of the

Federal Rules of Civil procedure, and there were several salient factors there that


                                           8
differ from the instant case. The damages claim presented “an entirely new and

questionable aspect to the suit.” Id. at 431. Under the initial complaint which sought

only declaratory relief, all of the contested issues were purely legal and could have

been resolved without any trial or taking of evidence. The delay in seeking

amendment–two years– was of a much greater duration. Even more importantly, in

Danzy, the reason why the plaintiff’s claim was moot (that there was no likelihood he

would be transferred again) existed continuously throughout the litigation. Here, by

contrast, mootness arose suddenly and unexpectedly when Commissioner Kaplan

resigned. McKinley acted promptly thereafter to add a damages claim.

      The district court’s second rationale for denying leave to amend in this matter

was that the parties’ joint scheduling report and proposed scheduling order had

established an amendment deadline of February 15, 1998. However, the alleged joint

scheduling order apparently never was entered and therefore never became binding

as necessary to trigger the operation of Rule 16(b) of the Federal Rules of Civil

Procedure. The County has cited no authority for the proposition that a proposed, but

not entered, joint scheduling order is binding for purposes of Rule 16(b), and this

Court’s independent research has disclosed no such authority. In the absence of a

dispositive scheduling order, whether leave to amend should be granted is governed

by the more liberal standard set forth in Rule 15(a).


                                          9
       Third, the district court noted that “it is unlikely that Plaintiff’s Amended

Complaint could survive dismissal pursuant to Rules 12(b)(6) and 9 of the Federal

Rules of Civil Procedure.” District Court Order Dismissing Case, at 6. On the

contrary, Rule 9(b) which imposes heightened requirements of particularity on

complaints in certain types of case, has no application to civil rights actions under 42

U.S.C. § 1983.        See Leatherman v. Tarrant County Narcotics Intelligence &

Coordination Unit, 507 U.S. 163, 168 (1993). In order to state a cause of action under

§ 1983, the plaintiff must allege only two things: (1) some person has deprived him

or her of a federal right; and (2) that he or she acted under color of state law. See

Gomez v. City of Toledo, 446 U.S. 635, 640 (1980). McKinley pleaded that the

County violated her First and Fourteenth Amendment rights, Amended complaint ¶

13, and that it acted under color of state law, Amended Complaint ¶ 3. Thus, the

amended complaint was not susceptible to dismissal under Rule 12(b)(6) and the

district court’s use of this ground to support denial of leave to amend was

unwarranted.3


       3
         The County argues that the district court’s denial of leave to amend was also supported by
McKinley’s assertion in her January 5, 1998 deposition that she was seeking only injunctive and
declaratory relief. We have reviewed the deposition transcript and we do not agree. McKinley
phrased her statement that she was seeking only injunctive and declaratory relief in tentative
language. More importantly, at the time of this deposition, she evidently felt that reinstatement to
the Film Board would make her whole; she was entitled to seek a different form of relief once
reinstatement was no longer possible. Furthermore, the County argues no legal theory whereby
McKinley’s deposition statement can foreclose her right to amend her complaint under Fed. R. Civ.

                                                10
       Under Rule 15(a), leave to amend shall be “freely given when justice so

requires.” Fed. R. Civ. P. 15(a). “In the absence of any apparent or declared reason

– 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.

– the leave sought should, as the rules require, be ‘freely given.’” Foman v. Davis,

371 U.S. 178, 182 (1962). None of the examples given in the Foman opinion justify

the denial of leave to amend in this case. The silent premise of the district court’s

opinion seems to be that McKinley’s claim for damages was disingenuous in light of

the fact that it was filed only after her existing claims were mooted. On the contrary,

however, we see nothing illegitimate about a plaintiff seeking a new type of relief

when intervening events occur during the pendency of litigation that makes the

originally sought relief impossible. The circumstances making injunctive relief moot

arose suddenly and unexpectedly when Commissioner Kaplan resigned as part of a

plea bargain in a criminal cause. They are not attributable to any negligence or fault

on the part of McKinley.




P. 15(c). Perhaps the County could rely on the doctrine of estoppel, but it has not shown that it
detrimentally relied on McKinley’s statement nor that granting leave to amend would cause it any
prejudice.

                                               11
      Also important to our decision is the absence of any significant prejudice to the

County. See Loggerhead Turtle v. Council of Volusia Cty., 148 F.3d 1231, 1257

(11th Cir. 1998) (noting that “[a]ny amendment to an original pleading necessarily

involves some additional expense to the opposing party,” but adding that this will not

justify denial of leave where the additional expense is “of nominal proportions”

(emphasis added)). McKinley’s amended complaint did not allege any new facts or

grounds for relief, and did not necessitate additional discovery or reformulation of the

County’s legal strategy. Substituting money damages for injunctive and declaratory

relief would not alter one bit the underlying legal analysis of whether McKinley’s

First and Fourteenth Amendment rights were violated. Therefore, permitting an

amendment would not have caused any undue hardship to the County. In sum, the

district court abused its discretion by not allowing McKinley to amend her complaint

to seek damages after Commissioner Kaplan resigned thereby rendering her claim for

reinstatement moot. Because we so hold, it is unnecessary for us to consider the

second question, i.e., whether the subsequent dismissal of McKinley’s complaint

should have been without prejudice.

      VACATED AND REMANDED.




                                          12
