William H. Thomas, Jr v. Tennessee Department of Transportation constructing or operating certain types of…

HLEDNOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0602n.06 AUG 6 2014
No. 13-6544 DEFH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WILLIAM H. THOMAS, JR., )
)
Plaintiff-Appellant, )
ON APPEAL FROM THEv. UNITED STATES DISTRICT
TENNESSEE DEPARTMENT OF
TENNESSEE
OF
Defendant-Appellee. )
)
BEFORE: GIBBONS, SUTTON, and WHITE, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Williams H. Thomas, Jr., believes that the
Tennessee Department of Transportation (TDOT) is selectively and unlawfully enforcing a
Tennessee state law that requires commercial billboard owners and operators to obtain a permit.
After TDOT initiated a state-court suit against Thomas to compel him to remove one of his
billboards, Thomas filed this action against TDOT alleging violations of the First and Fourteenth
Amendments to the United States Constitution. The district court held that Thomas’s suit was
barred by another constitutional amendment—the Eleventh. The court also refused to permit
Thomas to amend his complaint to add four Tennessee state officials as defendants. We affirm.
I.
TDOT is charged with enforcing the Billboard Regulations and Control Act of 1972,
Tenn. Code § 54-21-101 et seq., which regulates commercial billboards in the state of Tennessee.
That statute generally requires billboard owners and operators to obtain a permit before

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No. 13-6544
Thomas v. Tennessee Department of Transportation
constructing or operating certain types of “outdoor advertising.” Id. § 54-21-104(a). Thomas
owns several billboards around Memphis, Tennessee, including one specific billboard along
Interstate 40. Thomas evidently does not have a permit to operate that billboard, but he claims
that he is exempt from the Tennessee permit requirement because his billboard displays only
noncommercial messages. TDOT disagrees and filed an enforcement action in the Shelby
County Chancery Court to compel Thomas to remove the disputed sign along Interstate 40.
According to Thomas, “TDOT’s ongoing enforcement action against Mr. Thomas is a
continuation of an adversarial relationship” between the two parties.
The details of the state-court dispute are not relevant to this appeal. After TDOT initiated
that suit, Thomas filed this suit in federal district court pursuant to 42 U.S.C. § 1983 to obtain
injunctive and declaratory relief as well as “an award of such damages as are authorized by law.”
He alleges that TDOT’ s “selective” and “vindictive” enforcement of the billboard regulations
infringes his First Amendment right to free speech and violates his Fourteenth Amendment right
to the equal protection of the laws. He also asks for a declaration that his sign is exempt from
the permitting requirements of the Billboard Regulations and Control Act.
The district court dismissed Thomas’s claim after concluding that TDOT is immune from
suit under the Eleventh Amendment to the United States Constitution. The district court also
rejected Thomas’s untimely request for leave to amend his complaint to add four Tennessee state
officials as defendants. In the district court’s view Thomas had not shown good cause for his
failure to amend the complaint before the expiration of the deadline set forth in the district
court’s scheduling order. Thomas timely appealed.
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II.
The Eleventh Amendment to the United States Constitution bars suits in federal court
against the states or their agencies unless the state provides its consent. Papasan v. Allain,
478 U.S. 265, 276 (1986) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984)). TDOT, a state agency, is the sole defendant named in Thomas’s complaint, and he does
not suggest that the state of Tennessee consented to be sued in federal court. The case therefore
cannot proceed in this forum. To obtain the injunctive relief he seeks, Thomas must sue a state
official in his or her official capacity. See Ernst v. Rising, 427 F.3d 351, 358—59 (6th Cir. 2005)
(citing Ex parte Young, 209 U.S. 123, 155—56 (1908)). And Thomas cannot obtain money
damages unless he sues a state official in his or her individual capacity. See Kentucky v.
Graham, 473 U.S. 159, 165—69 (1985). Because Thomas’s original complaint included no state
officials as defendants, the district court properly dismissed the complaint.
III.
TDOT raised its Eleventh Amendment defense in its answer to Thomas’s complaint and
in its motion to dismiss. Four months after TDOT filed its answer and six weeks after TDOT
moved to dismiss Thomas’s suit, he sought leave of the court to amend his complaint to add four
Tennessee state officials as defendants. The court had entered a scheduling order, however, and
Thomas filed his motion after the expiration of the scheduling order’s deadline for amendments
to the pleadings. Thomas therefore was required to show good cause for his failure to amend the
complaint within the prescribed timeframe. See Fed. R. Civ. P. 16(b)(4) (“A schedule may be
modified only for good cause and with the judge’s consent.”); Leary v. Daeschner, 349 F.3d 888,
907 (6th Cir. 2003). The district court refused to permit Thomas to amend his complaint because
he did not establish “that despite [his] diligence, [he] could not meet the original deadline.”
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Leary, 349 F.3d at 907; see also Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002)
(“The primary measure of Rule 16’s “good cause” standard is the moving party’s diligence in
attempting to meet the case management order’s requirements.” (quoting Bradford v. DANA
Corp., 249 F.3d 807, 809 (8th Cir. 2001))). The district court concluded that Thomas was not
diligent because he sought leave to amend the complaint almost two months after the scheduling
order’s deadline, even though he knew the identity of the individual defendants before that
deadline. That decision was not an abuse of discretion, especially where TDOT’s answer alerted
Thomas to its sovereign-immunity defense. See Ross v. Am. Red Cross, No. 12-4312, 2014 WL
289430, at *8 (6th Cir. Jan. 27, 2014) (“A plaintiff does not establish ‘good cause’ to modify a
case schedule to extend the deadline to amend the pleadings where she was aware of the facts
underlying the proposed amendment to her pleading but failed, without explanation, to move to
amend the complaint before the deadline.” (citing Leary, 349 F.3d at 908)). Although Thomas
explained that he failed to meet the deadline because he wanted to use discovery to limit the
number of defendants he added to the complaint, the district court acted within its discretion
when it rejected that justification as insufficient.
Thomas also argues that the district court abused its discretion in denying his motion
because the district court did not address whether TDOT would suffer prejudice as a result of the
amendment. See Leary, 349 F.3d at 908 (“Another important consideration for a district court
deciding whether Rule 16’s ‘good cause’ standard is met is whether the opposing party will
suffer prejudice by virtue of the amendment.”). But Thomas did not seek to amend his complaint
to add any new claims against TDOT, nor does his proposed amended complaint include any
alterations to the factual allegations against TDOT. The only change Thomas seeks to make, so
far as we can tell, is to add four state officials as defendants. Yet Thomas proposes to sue these
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officials in their individual capacities only—not in their official capacities. The amendments that
Thomas proposes therefore would have no effect whatsoever on TDOT. Thomas’s claims
against TDOT have been dismissed, and the proposed amended complaint would not reinstate
those claims. There was accordingly no reason for the district court to determine whether
amendment of the complaint would have prejudiced TDOT, as TDOT would no Longer be in the
case. Any prejudice as a result of the amendment would be to the detriment of the four state
officials whom Thomas seeks to add, and the district court was not required to consider prejudice
to non-parties when determining whether to grant Thomas leave to amend the complaint.
The district court did not abuse its discretion when it refused to permit Thomas to
transform his suit against TDOT into a suit against four state officials in their individual
capacities.
Iv.
Because the district court did not err in dismissing Thomas’s complaint and did not abuse
its discretion in denying Thomas’s untimely motion to amend, we affirm.
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