Thompson, Mark E. v. IL Dept Prof'l Regul ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4074
MARK E. THOMPSON,
Plaintiff-Appellant,
v.
ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION,
LEONARD A. SHERMAN, individually and as Director
of the Illinois Department of Professional Regulation,
BOB DUDYCZ, WALTER DUDYCZ, and WILLIAM DARR,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 6057—Suzanne B. Conlon, Judge.
____________
ARGUED MAY 23, 2002—DECIDED AUGUST 7, 2002
____________
Before FLAUM, Chief Judge, BAUER and ROVNER, Circuit
Judges.
BAUER, Circuit Judge. This case deals with the long-
running saga of political patronage hiring and firing in
Illinois. See Elrod v. Burns, 427 U.S. 347 (1976) (plural-
ity opinion); Rutan v. Republican Party of Ill., 497 U.S.
62 (1990); O’Hare Truck Service, Inc. v. City of Northlake,
518 U.S. 712 (1996); see also Shakman v. Democratic Org.
of Cook County, 569 F. Supp. 177 (N.D. Ill. 1983).
The plaintiff, Mark E. Thompson, an elected Maine
Township Supervisor, sued the Illinois Department of
2 No. 01-4074
Professional Regulation (IDPR) and others, claiming he
was demoted and transferred from his position as Chief
Administrative Law Judge (Chief ALJ) for exercising his
First Amendment rights of political belief and association.
The district court dismissed the suit, finding the posi-
tion was a policymaking one based on the document de-
scribing the position attached to Thompson’s complaint.
Thompson appeals, arguing the position is not a policy-
making one, and that the district court misused and
misconstrued the attached document. Finding that Thomp-
son pled himself out of court, we affirm.
BACKGROUND
Mark E. Thompson was an elected Maine Township
Supervisor from 1993 to 2001. In 1999 he was appointed,
on a probationary basis, Deputy Chief Counsel for the
IDPR.1 Thompson later accepted a voluntary transfer to
the position of Chief ALJ of the IDPR in April 2000.2
In October 2000, Thompson fired a Maine Township
Code Enforcement Officer, citing the employee for failing
to come to work and spending most of his time at home
(a.k.a. ghost pay rolling). According to Thompson, the fired
employee was a friend of defendants Bob Dudycz and
1
The record does not reflect how Thompson obtained this posi-
tion, but the defendants claim the original position was Rutan
exempt—something Thompson does not comment upon—and
infer that he was appointed based on his political affiliation. At
the time of the original appointment Thompson was a Republican
and the Governor of Illinois was also a Republican.
2
While Thompson has argued he was entitled to the position of
Chief ALJ—despite the fact he was initially appointed to another
position—he acknowledges that his transfer to the position of
Chief ALJ “for the duration of his appointment” was based only
on a “[mutual understanding]”.
No. 01-4074 3
William Darr. Bob Dudycz challenged Thompson for the
position of Maine Township Supervisor in 2001,3 William
Darr was the Maine Township Republican Committee-
man,4 and Walter Dudycz was an elected State Senator.
(Bob Dudycz and Walter Dudycz are brothers).
Tensions began to mount between Thompson and Dudycz
and Darr. As a result, Thompson was not “slated” as a
candidate for Maine Township Supervisor on the Repub-
lican ticket. Then, in January 2001, Thompson, a Repub-
lican, began openly supporting several Democratic can-
didates for Maine Township offices. Thompson alleges
that thereafter Bob Dudycz, Walter Dudycz, and William
Darr conspired with other Illinois State elected officials,
including the Governor, to demote and transfer him in
retaliation for his actions as Township Supervisor and his
political associations.
Thompson, a resident of Des Plaines, was later tempo-
rarily transferred to Springfield to occupy the position
of IDPR’s Chief of Enforcement Administration. Finally,
Thompson was transferred back to his original position
as IDPR’s Deputy Chief Counsel, assigned to work in Chi-
cago.
Thompson filed a two count complaint in district court
on August 7, 2001. He amended the complaint, adding
an additional count, on September 20, 2001. Count I of
the amended complaint alleged that Thompson was trans-
3
Bob Dudycz, an elected Maine Township Supervisor, also holds
an unelected position in state government in the Illinois Depart-
ment of Central Management Services.
4
William Darr, a Maine Township Republican Committeeman,
also holds an unelected position as Commissioner of the Illinois
Office of Banks and Real Estate. The position appears to have
some political antecedents as Darr was appointed by the Gover-
nor.
4 No. 01-4074
ferred and later removed from his position as Chief ALJ
in retaliation for exercising his First Amendment free
speech rights in violation of 42 U.S.C. § 1983. The employ-
ment actions were purported to be politically motivated.
Count II was a state law breach of contract claim. Count
III was a claim for denial of due process and equal pro-
tection for the transfer and removal. Thompson at-
tached the official job description of the Chief ALJ to the
amended complaint.
The defendants moved to dismiss the complaint under
Fed. R. Civ. P. 12(b)(6), and the district court granted
the motion, finding, as a matter of law, that the ALJ
position occupied by the plaintiff was a policymaking posi-
tion, hence he could be removed for political reasons. In
reaching that conclusion, the district court relied wholly
upon the job description of the Chief ALJ provided by
Thompson. The court also found Director Sherman was
entitled to qualified immunity. Thompson appeals the
dismissal of Counts I and III, and the denial of his motion
for leave to file a third amended complaint.
ANALYSIS
A. Standard of Review
We review the district court’s grant of a motion to dis-
miss de novo, looking only at the pleadings, taking all the
facts pled as true and construing all inferences in favor
of the plaintiff. Beam v. IPCO Corp., 838 F.2d 242, 244
(7th Cir. 1988); Pleva v. Norquist, 195 F.3d 905, 991 (7th
Cir. 1999). The consideration of a 12(b)(6) motion is re-
stricted solely to the pleadings, which consist generally
of the complaint, any exhibits attached thereto, and sup-
porting briefs. See Beam, 838 F.2d at 244; FED. R. CIV. P.
10(c) (“A copy of any written instrument which is an ex-
hibit to a pleading is a part thereof for all purposes.”).
Any further pleadings would turn the motion into a 12(c)
No. 01-4074 5
motion for judgment on the pleadings, or if additional
evidence was relied upon or introduced, the motion would
be converted into a 56(c) motion for summary judgment.
See Beam, 838 F.2d at 244; Dempsey v. Atchison, Topeka
and Santa Fe Ry. Co., 16 F.3d 832, 835-36 (7th Cir. 1994).
B. Pleading Requirements
All that Federal Rule of Civil Procedure 8 requires is a
short and plain statement showing the plaintiff is entitled
to relief, the purpose of which is to give the defendant
notice of the claims and the grounds they rest upon. See
Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163 (1993). If the plaintiff
chooses to provide additional facts, beyond the short and
plain statement requirement, the plaintiff cannot prevent
the defense from suggesting that those same facts demon-
strate the plaintiff is not entitled to relief. See Jefferson v.
Ambroz, 90 F.3d 1291, 1296 (7th Cir. 1996) (“[I]f a plaintiff
chooses to ‘plead particulars, and they show he has no
claim, then he is out of luck—he has pleaded himself out of
court.’ ”) (quoting Thomas v. Farley, 31 F.3d 557, 558-59
(7th Cir. 1994)); cf. R.J.R. Serv., Inc. v. Aetna Cas. and Sur.
Co., 895 F.2d 279, 280 (7th Cir. 1989) (holding a court
is “not obliged to ignore any facts set forth in the com-
plaint that undermine the plaintiff’s claim or assign any
weight to unsupported conclusions of law.”). Likewise,
Thompson cannot attach a description of the duties of
the Chief ALJ, affirming that those were his duties, and
later, after realizing the consequences, attempt to retract
the exhibit.
Thompson asserts he is entitled to rebut the statements
in the exhibit, and that the 12(b)(6) motion should have
6 No. 01-4074
been converted into a Rule 56(c) motion.5 Thompson’s
argument might have some validity if any of the defen-
dants had introduced the document; the problem is that
it was Thompson who introduced the exhibit which
harmed, instead of helping his case. Rule 56(c) is not a
savior for plaintiffs whose pleadings essentially build
the defendant’s case. The district court properly consid-
ered this as a motion to dismiss by relying only on the
pleadings and not considering any documents outside the
pleadings.
C. Documents Attached to the Complaint as Evidence
Thompson cites Northern Indiana Gun & Outdoor Shows,
Inc. v. City of South Bend, 163 F.3d 449 (7th Cir. 1998), in
support of his argument that when attachments and
allegations in a complaint are in conflict, the court should
resolve the differences in favor of the plaintiff. NIGOS
reaffirmed the “well-settled rule that when a written
instrument contradicts allegations in a complaint to which
it is attached, the exhibit trumps the allegations.” Id.
at 454 (emphasis added); see also In the Matter of Wade,
969 F.2d 241, 249 (7th Cir. 1992) (“A plaintiff may plead
himself out of court by attaching documents to the com-
plaint that indicate that he or she is not entitled to judg-
ment.”); Graue Mill Dev. Corp. v. Colonial Bank & Trust
Co. of Chi., 927 F.2d 988, 991 (7th Cir. 1991). NIGOS’
specific holding dealt only with exhibits which are not
the “subject of the claim”. 163 F.3d at 455. NIGOS applied
a more flexible approach because the attached exhibit
5
Even though Thompson argued for the opportunity to contradict
the facts contained in the exhibit, he openly stated that his real
issue was not with the validity of the document, but with the
inferences drawn from it by the district court. See Brief of Plain-
tiff-Appellant at 15, 17.
No. 01-4074 7
was not at issue in the litigation. Id. The fact remains that
where a plaintiff attaches documents and relies upon the
documents to form the basis for a claim or part of a claim,
dismissal is appropriate if the document negates the claim.
In his second amended complaint, which is twelve
pages long, Thompson did not provide a single direct ref-
erence to the duties of the Chief ALJ. The only state-
ment which even refers to the Chief ALJ’s duties is in
Count II, the breach of contract claim, and states: “That
the position of Chief Administrative Law Judge is a civil
service title of Senior Public Administrator. (Job descrip-
tion is attached as Exhibit C)”. The lack of contradic-
tory facts in the complaint distinguishes the instant case
from NIGOS and from cases in which the facts of the
complaint are in conflict with facts in an exhibit attached
to the complaint. Rather than making allegations in the
complaint, Thompson attached the job description as
proof that he was demoted when he was transferred.
(In order to show that he was demoted and transferred,
Thompson needed to establish that the duties of the
two positions were different, which is why he also at-
tached the job description for Chief of Enforcement Admin-
istration). In this case, the exhibit was attached for
the purpose of describing the Chief ALJ’s duties, clearly
making it part of the “subject of the claim”, and no contrary
facts were alleged in the actual complaint. That leaves
us with the exhibit as the sole uncontradicted description
of the duties of the Chief ALJ.
D. Count I: First Amendment Claim
The freedom to associate with persons of like mind and
opinion, and believe in a particular cause or idea are among
the core rights protected by the First Amendment. See, e.g.,
Elrod, 427 U.S. at 356; Buckley v. Valeo, 424 U.S. 1, 11
(1976). Government cannot condition employment on be-
8 No. 01-4074
lief or adherence to a particular idea or political party
any more than it can condition a benefit on the same.
See Keyishaian v. Bd. of Regents of the Univ. of the
State of New York, 385 U.S. 589 (1967); Perry v. Sinder-
mann, 408 U.S. 593, 597 (1972); Elrod, 427 U.S. at 358-60;
Branti v. Finkel, 445 U.S. 507, 513-17 (1980); Rutan, 497
U.S. at 69-27 (extending the prohibition on condition-
ing employment on political belief or adherence to “pro-
motion, transfer, recall, and hiring decisions”). Such
conditions are antithetical to our democratic republic, and,
moreover, prevent government from operating in an ef-
ficient and beneficial manner. See Elrod, 427 U.S. at 358
(“Patronage can result in the entrenchment of one or a
few parties to the exclusion of others.”); Branti, 445 U.S.
at 517 n.12 (“Government funds, which are collected
from taxpayers of all parties on a nonpolitical basis cannot
be expended for the benefit of one political party simply
because that party has control of the government.”).
A representative democracy is based on competition
(between candidates and ideas and not necessarily parties);
and structural entrenchment through the spoils system
would prevent serious challenges to incumbents and
the formulation of new ideas. See Rutan, 497 U.S. at 81-
86 (Stevens, J., concurring) (noting that the founding fa-
thers—Madison, Hamilton, Franklin, Washington, and
John Adams—all decried the divisive effect of political
parties). And unlike other forms of government, a repre-
sentative democracy continually reinvents and reinvig-
orates itself with new people and new ideas preventing
stagnation, decay, and eventual collapse. See generally
JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE
GOVERNMENT (1860); ALEXIS DE TOCQUEVILLE, DEMOCRACY
IN AMERICA (Vol. I, 1835 and Vol. II, 1840).
However, political leaders are, at least in theory, elected
for a purpose, i.e., to carry out the promises and pledges
made during the campaign. To prevent a newly elected offi-
No. 01-4074 9
cial from carrying out his or her purpose would similarly
be in contradiction to democratic traditions. See Elrod,
427 U.S. at 372 (“There is also a need to insure that pol-
icies which the electorate has sanctioned are effectively
implemented.”); Branti, 445 U.S. at 517 n.12 (“The plural-
ity emphasized that patronage dismissals could be jus-
tified only if they advanced a governmental rather than
a partisan interest.”) (emphasis added). Thus, the First
Amendment does not categorically limit the ability of
elected leaders from surrounding themselves with loyal,
like-minded subordinates. Elrod, 427 U.S. at 367-73. If
a public employer can demonstrate a compelling reason
for a dismissal based on political affiliation, then the re-
moval may be constitutionally justified. See id. at 360;
Milazzo v. O’Connell (Milazzo I), 108 F.3d 129, 131 (7th
Cir. 1997).
The justification often proffered by public employers in
terminating their subordinates is that such positions
were “policymaking” in nature, requiring political loyalty
or confidentiality to effectively discharge required duties.
See Branti, 445 U.S. at 517-18. The term “policymaker” is
somewhat misleading because not all public employees
who make policy can be dismissed for political reasons,
just as there is no absolute prohibition against the politi-
cal dismissal of any public employee who is not a “policy-
maker”. See id. at 517-19; Rutan, 497 U.S. at 71 n.5; Pleva,
195 F.3d at 911-12. “[T]he ultimate inquiry is not wheth-
er the label ‘policymaker’ or ‘confidential’ fits a partic-
ular position; rather the question is whether the hiring au-
thority can demonstrate that party affiliation is an appro-
priate requirement for the effective performance of the
public office involved.” Branti, 445 U.S. at 517-18; Rutan,
497 U.S. at 71 n.5. Nevertheless, we begin our analysis
looking for policymaking powers or confidential relation-
ships because those terms “accurately describe the vast
majority of offices that fall within the realm of legitimate
10 No. 01-4074
patronage”. Meeks v. Grimes, 779 F.2d 417, 420 (7th Cir.
1985). We keep in mind the fact that the defendant bears
the burden of establishing the position is a confidential
or policymaking position which would justify politically
motivated employment actions. E.g., Milazzo I, 108 F.3d
at 132.
In determining whether an employee is in a policymak-
ing position we consider, among other things, “whether
the employee acts as an adviser or formulates plans
for the implementation of broad goals.” Elrod, 427 U.S. at
367-68; Branti, 445 U.S. at 518. Job title and supervisory
authority do not necessarily transform an employee into
a policymaker because the employee “may have only lim-
ited and well-defined objectives”. Elrod, 427 U.S. at 367-
68; see also Milazzo I, 108 F.3d at 133 n.1 (citing cases
showing that “merely being a supervisor/administrator
is not sufficient to show that political affiliation is an
appropriate requirement for the job in question.”). On the
other hand, a lower level employee may have more ac-
tual responsibility by virtue of poorly defined duties of
a “broad scope”. Elrod, 427 U.S. at 367-68. Hence, lists
of duties and terms of office figure into the calculation,
but do not determine whether or not the position is a
policymaking one. Rather, we look at the nature of the
responsibilities and focus on the duties inherent in an
office, and not the functions of the position performed by
a particular person.
Thompson compares the facts in Lohorn v. Michal, 913
F.2d 327, 329-30 (7th Cir. 1990), involving a statutorily
labeled position, to the current situation, arguing the
Illinois Department of Central Management Services
(IDCMS) job description deserves little or no eviden-
tiary weight. Lohorn involved only the statutory label-
ing of the position as “policymaking” without any descrip-
tion of the duties. Id. at 334-35. Our opinion concluded
that the district court placed undue emphasis on the
No. 01-4074 11
mere label of the position as a “policymaking” one, and
reaffirmed the principle that courts must “scrutinize the
government’s proffered justifications for impairing these
first amendment interests.” Id. at 334; see also Meeks,
779 F.2d at 420-21 n.2; Shakman v. Democratic Org. of
Cook County, 722 F.2d 1307, 1310 (7th Cir. 1983) (per
curiam). However, we also noted that the legislature’s
description of the position is ordinarily “entitled to great
weight.” Lohorn, 913 F.2d at 334-35 (“We by no means
suggest that summary judgment is never appropriate in
cases such as these.”).
The deference Lohorn stated was due to legislative
descriptions of positions is certainly not as strong in this
case where the position description was created by the
executive (under what authority we do not know) and not
enacted into law. However, the IDCMS job description
is still evidence of the duties of the Chief ALJ to be scru-
tinized along with everything else introduced as evidence
at this stage. Id.; cf. Pleva, 195 F.3d at 912; Warzon v.
Drew, 60 F.3d 1234, 1240 (7th Cir. 1995); Heck v. City
of Freeport, 985 F.2d 305, 310 (7th Cir. 1993). Also, in
contrast to the bare “policymaking” label in Lohorn, the
IDCMS job description was detailed and specific and
did not mention the buzzword “policymaking”. Moreover,
Thompson attached the job description to his complaint
as proof of his duties and affirmed its accuracy.6 Be-
cause Thompson attached and relied upon the job descrip-
tion in forming the basis for his claims, it is proper to
6
And Thompson, as stated before, did not challenge the validity
of the description, rather he disputed the inferences drawn from
it. On appeal, Thompson argues that the description of the Chief
ALJ’s duties were not his duties; however, that type of argument
(personal performance overrides duties inherent in the position)
has been consistently rejected. E.g., Tomczak v. City of Chicago,
765 F.2d 633, 640-41 (7th Cir. 1985).
12 No. 01-4074
scrutinize the description to determine if it proves that
the position is a policymaking position exempt from First
Amendment strictures. In addition, as this case was de-
cided on a motion to dismiss, the facts regarding the duties
of the position are limited to the ones contained in the
IDCMS job description attached to the second amended
complaint.7
The IDCMS job description of the Chief ALJ’s duties
includes: directing subordinate staff, formulating proce-
dures for the hearing programs, advising peer review
committees, developing hearing program goals, and direct-
ing and implementing the program budget. Most of the
Chief ALJ’s time is spent on these activities, approximately
eighty-five percent. While any one of these activities alone
might not be considered policymaking, together they in-
dicate that the Chief ALJ spends a considerable amount
of time formulating policy and implementing broad goals.
Thompson counters that as Chief ALJ he, in fact, has
very limited powers and is an impartial, quasi-judicial of-
ficial. Two of the duties described in the IDCMS job de-
scription do support Thompson’s assertions. The Chief
ALJ is described as making “independent decisions” and
exercising “judicial impartiality”. However, those duties
comprise less than fifteen percent of the Chief ALJ’s over-
all responsibilities. Moreover, even in performing these
duties the Chief ALJ reports to the director, preparing
recommendations not independent decisions.
Based on the description alone, it is apparent that the
Chief ALJ is a policymaking official within the IDPR. The
Chief ALJ performs a variety of functions overseeing ac-
7
Unlike Milazzo I, there are no conflicting allegations in the
plaintiff ’s complaint, which we would be required to credit in the
plaintiff ’s favor. 108 F.3d at 132-33. The plaintiff did not plead a
single fact in his complaint regarding the duties of the position;
instead he chose to attach the IDCMS job description.
No. 01-4074 13
tivities of subordinates, implementing policy and broad
goals, and providing legal advice to numerous professional
discipline boards. See Elrod, 427 U.S. at 367-68; Branti,
445 U.S. at 518. In attaching this job description and
thus asserting that the description was true and cor-
rect—and not refuting or adding to the description in the
complaint—Thompson pled himself out of court. Cf. Ameri-
canos v. Carter, 74 F.3d 138, 141 (7th Cir. 1996) (stating
that dismissal pursuant to 12(b)(6) was not “based on an
insufficient factual record” because the duties of the posi-
tion were “easily ascertainable”).8 Because Thompson
has not pled a claim upon which relief may be granted, we
need not reach the issue of qualified immunity.
D. Count III: Due Process and Equal Protection Claims
1. Due Process
To demonstrate a due process violation in the employ-
ment context Thompson would be required to show, among
other things, that he has a “legitimate claim of entitlement”
to the position. See, e.g., Wolf v. City of Fitchburg, 870
F.2d 1327, 1330 (quoting Board of Regents v. Roth, 408
U.S. 564, 577 (1972)). However, Thompson has essential-
ly admitted that he has no property interest in the spe-
cific job of Chief ALJ. Thompson was only temporarily
appointed to the position of Deputy Chief Counsel for the
IDPR, and his transfer/promotion to the position of Chief
ALJ was, admittedly, based only on a mutual understand-
ing. See Kolman v. Sheahan, 31 F.3d 429, 435 (7th Cir.
8
We reach this conclusion without directly addressing the po-
litical antecedents of how Thompson obtained the job in the first
place, or the fact that Thompson remains employed in the posi-
tion he was originally hired for, conceding that he lacked any-
thing more than an “understanding” that he would stay Chief ALJ
for the duration of his temporary appointment.
14 No. 01-4074
1994). Moreover, as the Illinois Civil Service Commission
concluded, his temporary transfer—for stated benign
reasons—violated no state laws or rules. See Gustafson
v. Jones, 117 F.3d 1015, 1021 (7th Cir. 1997); 20 ILCS
§ 415/8b.19; 80 Ill. Admin. Code 320.410 (stating that
employees may be transferred to similar positions within
the agency or department employing them); 80 Ill. Admin.
Code 302.822.
Finally, the result in the prior analysis (concluding
Thompson pled himself out of court) precludes a finding
for Thompson on this claim. If Thompson can be termi-
nated, demoted, or transferred at will for political reasons,
he has no property interest in the position of Chief ALJ.
Because Thompson cannot demonstrate a property inter-
est in the position of Chief ALJ, we conclude his due proc-
ess claim was properly dismissed.
2. Equal Protection
To demonstrate an equal protection violation Thompson
would need to show that “state government took an action
against him that ‘was a spiteful effort to ‘get’ him for rea-
sons wholly unrelated to any legitimate state objective.’ ”
Pleva, 195 F.3d at 917 (quoting Esmail v. Macrane, 53 F.3d
176, 179 (7th Cir. 1995)). Thompson alleges that Darr and
Dudycz conspired with the Governor and subordinate
officials to demote and transfer him because of his polit-
ical activities in Maine Township.9 Director Sherman re-
sponded by stating that the temporary transfer was for
personnel not political reasons.
9
Thompson also filed a claim, based on 42 U.S.C. § 1983, against
Walter and Bob Dudycz, alleging they conspired with Director
Sherman to deprive him of his job as Chief ALJ. The district court
also dismissed that claim and Thompson failed to raise the issue
in his opening brief, waving review in this court. See Sere v. Bd.
of Tr. of the Univ. of Ill., 852 F.2d 285, 287 (7th Cir. 1988).
No. 01-4074 15
While cooperation of high level officials in schemes to
hire, transfer, or remove persons in even the lowest level
positions are not unheard of in Illinois, see generally
Rutan v. Republican Party of Ill., 497 U.S. 62 (1990);
Tarpley v. Keistler, 188 F.3d 788 (7th Cir. 1999), Thomp-
son’s equal protection claim fails for the same reasons
that his due process claim did. If Thompson may be re-
moved for political reasons from the position of Chief ALJ,
it is not improper for Thompson to be transferred for the
same reasons. See Pleva, 195 F.3d at 917; Farr v. Gruber,
950 F.2d 399, 402 (7th Cir. 1991).
E. Denial of Leave to Amend the Second Amended Com-
plaint
Thompson filed a two count complaint on August 9, 2001.
On August 21, 2001, Director Sherman moved to dismiss
both counts. Thompson later filed a second amended com-
plaint, adding a third count, on September 21, 2001. The
court dismissed Count I with prejudice, and granted Di-
rector Sherman’s motion to dismiss Count II, in part, on
October 2, 2001. Then on October 4, 2001, the defendants
moved to dismiss Count III and the remaining Count II
claims. While the motion to dismiss was under consid-
eration, on October 11, 2001, Thompson again sought leave
to amend his complaint and file a third amended com-
plaint. On October 30, 2001, the court dismissed Count III
with prejudice and the remaining Count II claims with-
out prejudice. The court denied leave to amend on No-
vember 6, 2001, concluding that further amendments
would be futile.
Although a district court shall freely grant leave to
amend “when justice so requires”, the rule does not com-
mand leave be granted every time. FED. R. CIV. P. 15(a). It
is well within the province of the district court to deny
leave to amend if, among other things, there is undue
16 No. 01-4074
delay or undue prejudice would result to the opposing party
if the amendment were allowed. Id.; Ferguson v. Roberts,
11 F.3d 696, 706-07 (7th Cir. 1993).
Even after the defendants’ moved to dismiss the first
amended complaint, Thompson failed to cure the deficien-
cies with the subsequent second amended complaint. Then,
only after the defendants’ moved to dismiss the remain-
ing counts—including the added count in the second
complaint—did Thompson attempt to cure the deficiencies
that were evident since the first complaint. Thompson
delayed in filing a motion to amend, twice, until after
the defendants had moved to dismiss. The last delay
prejudiced the defendants by forcing them to articulate
reasons for dismissal, and, at the same time providing
Thompson with the opportunity to correct mistakes facial-
ly apparent since the first complaint after the defendants
had shown their hand. See Doherty v. Davy Songer, Inc.,
195 F.3d 919, 927-28 (7th Cir. 1999). The district court
did not abuse its discretion in denying further leave to
amend and curtailing this cat and mouse game of mo-
tions to dismiss followed by a motion to amend. See Feld-
man v. American Memorial Life Ins. Co., 196 F.3d 783, 793
(7th Cir. 1999).
CONCLUSION
Sometimes more is not better. All Rule 8 requires
(with certain exceptions noted in Rule 9) is a short, plain
statement showing the plaintiff is entitled to relief. The
plaintiff in this case attached a document to his pleadings
which showed he was not entitled to relief. AFFIRMED.
No. 01-4074 17
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-7-02