United States District Court, N.D. Texas, Abilene Division
MEMORANDUM OPINION AND ORDER
SCOTT FROST UNITED STATES MAGISTRATE JUDGE.
Court has under consideration a Motion of Plaintiff to File
Plaintiff s Second Amended Complaint and Jury Demand (doc.
50). Defendants John R. Wilson III and Jimmy Woods oppose the
motion. See Resp. (doc. 51). Plaintiff has filed a
reply to the response. See Reply (doc. 53). After
reviewing the briefing, pleadings, and applicable law, the
Court denies the motion.
to 42 U.S .C. § 1983, Plaintiff filed this civil action
against the City of Abilene ("the City"), Officer
Jimmy Woods "("Woods"), and Detectives John R.
Wilson III ("Wilson") and Larry Tatum
("Tatum"). See Pl.'s First Am. Orig.
Compl. (doc. 21) (hereinafter "Am. Compl.") at 1,
5. The Court previously addressed whether the amended
complaint survived various motions to dismiss. See
Report & Recommendation (doc. 39); Order (doc. 40). The
Court dismissed (1) all claims against the City and
terminated that entity as a defendant in this action; (2)
official-capacity claims asserted against Woods and Wilson;
and (3) an excessive force claim against Woods in his
individual capacity. Order at 1-2. These dismissals were with
prejudice and without leave to amend. Id. The Court
thereafter issued a Pretrial Scheduling Order (doc. 47) that
set a December 18, 2017 deadline for filing any motion for
leave to join other parties or to amend the pleadings.
December 14, 2017, Plaintiff filed the instant motion for
leave to amend to add the Office of the District Attorney of
Taylor County, Texas, as a defendant. Mot. at 1. Plaintiff
explains that discovery revealed that misconduct by Defendant
Tatum was accomplished through improper and unconstitutional
policies of the proposed new defendant. Id. at 2. In
response, Defendants Wilson and Woods raise several concerns
about the propriety of permitting the proposed amendment,
including futility, undue prejudice, and lack of judicial
economy. See Resp. at 1-3. While they do not oppose
the request to add a new party, they do oppose the proposed
amendment to the extent it includes previously dismissed
claims. See id.
LEAVE TO AMEND
may amend pleadings "once as a matter of course"
before trial if they do so within (A) twenty-one days of
serving the pleading or (B) "if the pleading is one to
which a responsive pleading is required, " twenty-one
days of service of a responsive pleading or a motion under
Fed.R.Civ.P. 12(b), (e), or (f), whichever is earlier.
Fed.R.Civ.P. 15(a)(1). Other amendments before trial are
allowed "only with the opposing party's written
consent or the court's leave." Fed.R.Civ.P.
15(a)(2). Courts "should freely give leave when justice
so requires." Id.; accord Foman v.
Davis, 371 U.S. 178, 182 (1962). Whether to allow a
proposed amendment, after the permissive period, addresses
the sound discretion of the court. See Foman, 371
U.S. at 182; EEOC v. Serv. Temps Inc., 679 F.3d 323,
333 (5th Cir. 2012).
Supreme Court stated long ago, the courts should grant leave
absent "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." Foman, 371 U.S. at 182. "The liberal
amendment rules of F.R.Civ.P. 15(a) do not require that
courts indulge in futile gestures" and when a proposed
amended complaint "would be subject to dismissal, leave
to amend need not be granted." DeLoach v.
Woodley, 405 F.2d 496, 497 (5th Cir. 1968) (per curiam).
"Although the district court should err on the side of
allowing amendment, leave to amend should not be given
automatically." Chitimacha Tribe of La. v. Harry L.
Laws Co., 690 F.2d 1157, 1163 (5th Cir. 1982).
Consistent with the purposes of Rule 15(a), courts
"should consider judicial economy and whether the
amendments would lead to expeditious disposition of the
merits of the litigation." Id.
considering these legal principles, the briefing, the prior
orders of the Court, and the proposed amended complaint, the
Court denies Plaintiff leave to amend. Plaintiff seeks leave
to amend in order to name a new defendant - the Office of the
District Attorney of Taylor County, Texas. Plaintiff,
however, does not appear to have a viable claim against that
entity. The Fifth Circuit recognizes that some entities are
not subject to suit. See Darby v. Pasadena Police
Dep't, 939 F.2d 311, 314 (5th Cir. 1991). In 2012,
the Fifth Circuit affirmed the dismissal of a Louisiana
district attorney's office as a non-jural entity. See
Delta Fuel Co., Inc. v. Maxwell, 485 Fed.Appx. 685,
686-87 (5th Cir. Aug.10, 2012) (per curiam). Furthermore,
federal courts in Texas have relied upon the principles
espoused in Darby to hold that a county district
attorney's office is not a legal entity capable of being
sued. See Liverman v. Denton Cnty., No.
4:16-CV-801-ALM-KPJ, 2017 WL 3492307, at *1 (E.D. Tex. Aug.
15, 2017) (adopting recommendation of Mag. J.); Jacobs v.
Port Neches Police Dep't, 915 F.Supp. 842, 844 (E.D.
Tex. 1996); Hubert v. Hoel, No. 3:04-CV-2573-D, 2005
WL 3148548, at *2 (N.D. Tex. Oct. 19, 2005) (recommendation
of Mag. J.) adopted by 2005 WL 3150234 (N.D. Tex.
Nov. 16, 2005); Stephens v. Dist. Atty. of Dallas
Cnty., No. 3:04-CV-1 700- M, 2004 WL 1857085, at *3
(N.D. Tex. Aug. 19, 2004) (recommendation of Mag. J.)
accepted by 2004 WL 1969403 (N.D. Tex. Sept. 7,
accordance with these cases, the Court finds that the Office
of the District Attorney of Taylor County, Texas, does not
enjoy a separate, legal existence and cannot be sued by
Plaintiff. Plaintiff has presented nothing to suggest that
Taylor County "has taken explicit steps to grant the
servient agency with jural authority" as required under
Darby. See 939 F.2dat 313. The District
Attorney's Office cannot initiate litigation on its own
behalf. It can only engage in litigation "in concert
with the government itself." Id. Consequently,
if the Court granted Plaintiff leave to amend its complaint
to add the new defendant, the newly named defendant would be
subject to dismissal. Plaintiff provides no adequate reason
to grant him leave to file the amended complaint.
addition, as Defendants Wilson and Woods point out, the
proposed amended complaint includes claims that the Court has
already dismissed with prejudice and without leave to amend.
Including such claims in the amended complaint is improper.
foregoing reasons, the Court DENIES the
Motion of Plaintiff to File Plaintiffs Second Amended
Complaint and Jury Demand (doc. 50).