                                Margaret McKINLEY, Plaintiff-Appellant,

                                                     v.

   Bruce KAPLAN, in his official capacity, Miami-Dade County, a political subdivision of the State of
Florida, Defendants-Appellees.

                                               No. 98-4947.

                                     United States Court of Appeals,

                                             Eleventh Circuit.

                                              June 14, 1999.

Appeal from the United States District Court for the Southern District of Florida. (No. 97-3291-CIV-JLK),
James L. King, Judge.

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

        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




   *
    Honorable Arthur L. Alarcón, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
insulting." McKinley was then formally removed from her position on the Film Board by a vote of the Board

of County Commissioners.

        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 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.



   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.
   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, 98 S.Ct. 1042, 55
L.Ed.2d 252 (1978).
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, 520 U.S. 43, 117 S.Ct.

1055, 137 L.Ed.2d 170 (1997), and several other lower court cases, in support of the 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." 520 U.S. at 67, 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, 109 S.Ct. 2304, 105 L.Ed.2d 45 (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 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, 100 S.Ct. 1398, 63 L.Ed.2d 673 (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, 115 S.Ct. 2634, 132 L.Ed.2d 873 (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, 109 S.Ct. 2304, 105

L.Ed.2d 45 (1989); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).

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, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980)). Based as it was on principles unique

to the intersection of class action certification and the 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 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).

         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, 113 S.Ct.

1160, 122 L.Ed.2d 517 (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. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (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.
         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, 83 S.Ct.

227, 9 L.Ed.2d 222 (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.

         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


Furthermore, the County argues no legal theory whereby McKinley's deposition statement can foreclose
her right to amend her complaint under Fed.R.Civ.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.
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.
