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December 15, 1988

JAMES MONROE, SR., Plaintiff,

The opinion of the court was delivered by: LAMBERTH


 This matter comes before the Court on plaintiff's motion for leave to file an amended complaint. Plaintiff originally brought this action pro se, seeking declaratory, injunctive, and monetary relief under Title VII of the Civil Rights Act of 1964, as amended, and under the Age Discrimination in Employment Act of 1967. After the Court's appointment of counsel to represent plaintiff, plaintiff now seeks, in an amended complaint, to delete his causes of action under Title VII and the Age Act, and instead ground his action on 42 U.S.C. § 1983. *fn1"


 On February 22, 1982, the District of Columbia Department of Corrections hired plaintiff, a black male, along with eleven others, as a correctional officer; his first year, however, was to be probationary. On December 15, 1982, the Retention Interview Board, a body apparently charged with determining the future status of probationary employees, interviewed the plaintiff. On February 2, 1983, the then director of the Department of Corrections, James F. Palmer, sent plaintiff a letter informing him that his employment would be terminated as of February 4, 1983. In that letter, Mr. Palmer also informed the plaintiff that he could appeal the termination decision to the Office of Human Rights if he felt that the action was based on discrimination because of, among other things, sex or religion.

 Following his termination, Mr. Monroe sought redress through several different means. In February, 1983, he obtained the aid of a union representative. On June 6, 1983, plaintiff filed a complaint with the District of Columbia Office of Human Rights ("DCOHR"). The DCOHR subsequently filed a parallel complaint with the EEOC. On May 18, 1984, the DCOHR issued a "no probable cause" determination and dismissed the complaint. On March 23, 1987, the EEOC issued a "notice of right to sue," having concluded that there was no reasonable cause to believe plaintiff's allegations. Finally, on May 26, 1987, Mr. Monroe filed an action with the Public Employee Relations Board ("PERB") which had dismissed the complaint in part; the part of the complaint relating to standards of conduct for labor organizations is still pending. Throughout this period, Mr. Monroe also sought the assistance of other government agencies, a congressman, and the Mayor. Plaintiff finally filed this action pro se on June 22, 1987.

 In addressing plaintiff's motion to amend his complaint, we address first the standard we should apply in determining whether to grant the motion, and then we address plaintiff's argument that granting his motion to amend would not be "futile" because the statute of limitations arguably does not bar his new § 1983 claim.


 A. The Standard

 Rule 15(a) of the Federal Rules of Civil Procedure states in relevant part that "a party may amend the party's pleading only by leave of court or by written consent of the adverse party . . . and leave shall be freely given when justice so requires." FED. R. CIV. P. 15(A). In Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962), the United States Supreme Court gave meaning to the vague phrase "when justice so requires." In relevant part, the Court explained that "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 . . . futility of amendment, etc. -- the leave sought should, as the rules require, be 'freely given.'" 371 U.S. at 182 (emphasis added). The Court further elaborated that "the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason . . . is not an exercise of discretion." 371 U.S. at 182. Accordingly, a district court should grant a motion to amend unless there is a clear and solid justification for denying it.

 Other courts have elaborated on when a motion for leave to amend may be denied due to "futility". It has been repeatedly held that an amended complaint is "futile" if the complaint as amended would not survive a motion to dismiss. See, e.g., Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3rd Cir. 1983), cert. den., 464 U.S. 937, 78 L. Ed. 2d 314, 104 S. Ct. 348 (1983). For example, in Banque de Depots v. National Bank of Detroit, 491 F.2d 753 (6th Cir. 1974), the Sixth Circuit affirmed the district court's denial of defendant-bank's motion to amend its answer in the form of an interpleader since the motion was "on shakey ground because of the questionable applicability of interpleader in this factual setting." 491 F.2d at 757. The court also denied defendant's motion to amend its answer to include a cross-claim for indemnification, since allowing such a cross-claim at that point in the litigation would have worked an "undue hardship" on the potential cross-claim defendant.

 In Bricker v. Crane, 468 F.2d 1228 (1st Cir. 1972), cert. den., 410 U.S. 930, 93 S. Ct. 1368, 35 L. Ed. 2d 592 (1973), the First Circuit upheld the district court's denial of appellant's motion for leave to amend his complaint to add a claim of class-based discrimination, since the additional allegation "would not, in any event, suffice to state a claim under § 1985(3)." 468 F.2d at 1232. The court elaborated that "[appellant] has alleged no facts supporting the existence of such a class and admitted at oral argument that he might be the only class-member in [his state]." *fn2" 468 F.2d at 1233. The Seventh Circuit, in Verhein v. South Bend Lathe Inc., 598 F.2d 1061 (7th Cir. 1979), upheld the district court's denial of plaintiff's motion for leave to amend his complaint to add an additional defendant. The court explained that plaintiff "asserted no facts to support a valid theory of liability [against the defendant]." 598 F.2d at 1063. Similarly, in Glick v. Koenig, 766 F.2d 265 (7th Cir. 1985), the Seventh Circuit found that the district court did not abuse its discretion in denying plaintiff leave to amend his complaint, since the proposed amendment failed to state sufficient facts to overcome the absolute or qualified immunity accorded to the defendants. 766 F.2d at 269. Thus, this court should deny plaintiff's motion to amend his complaint if his amended complaint does not allege sufficient facts to survive a motion to dismiss.

 Plaintiff cites Richards v. Mileski, 213 U.S. App. D.C. 220, 662 F.2d 65 (D.C. Cir. 1981) in support of his argument that it is inappropriate to deny his motion for leave to amend his complaint on statute of limitations grounds. In that case, the district court had granted defendants' motion to dismiss on statute of limitations grounds before the issue had been fully briefed by the parties. Defendants had moved to dismiss before filing an answer, and the district court granted that motion without oral argument. 662 F.2d at 67 n.2, 73. The District of Columbia Circuit reversed the district court's dismissal of the case and remanded for reconsideration pending "the filing of an answer, raising the statute of limitations, allow[ing] both parties to make a record adequate to measure the applicability of such a defense . . . ." 662 F.2d at 73. *fn3" The case at bar, by contrast, involves a motion to amend the complaint rather than a motion to dismiss. More significantly, the issue of equitable tolling has been fully briefed by both parties, particularly in plaintiff's reply memorandum, and defendants' opposition and supplemental ...

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