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GRAVES v. UNITED STATES

April 11, 1997

BOYD E. GRAVES, Plaintiff,
v.
UNITED STATES OF AMERICA, RICHARD W. RILEY, Secretary of the United States Department of Education, KATHLEEN K. PARKER, Chairperson of the United States Architectural and Transportation Compliance Board, ANNE MARIE HUGHEY, Executive Director of the National Council on Independent Living, DAVID BARRAM, Administrator of the General Services Administration, PEARL KINARD, EEO Counselor of the General Services Administration, Defendants.



The opinion of the court was delivered by: SPORKIN

 I. INTRODUCTION

 Before the Court in the above-captioned case are the plaintiff's Complaint and Amended Complaint, defendant Hughey's Motion to Dismiss, the defendants United States, Riley, Parker, Barram and Kinard's Motion to Dismiss, and the plaintiff's Memorandum in Opposition thereto. Upon careful consideration of the parties' pleadings, the entire record herein, and the law applicable thereto, the Court shall grant the defendants' Motions to Dismiss.

 II. BACKGROUND

 The plaintiff's Amended Complaint, filed November 29, 1996, added David Barram, Administrator for the General Services Administration ("GSA") and Pearl Kinard, EEO Counselor for GSA, as defendants. The plaintiff alleges that Barram and Kinard conspired to keep him unemployed by violating EEO procedures.

 III. DISCUSSION

 A. FOR THE PURPOSES OF THIS CASE, THE DEFENDANTS ARE ONLY THOSE DEFENDANTS NAMED IN THE COMPLAINT AND AMENDED COMPLAINT.

 In his Memorandum in Opposition to the Defendants' Motions to Dismiss, the plaintiff recounts the actions of numerous other "defendants" who are not named in either the Complaint or the Amended Complaint, namely, David Esquith, David Capozzi, Larry Roffee, and Ceil Stein. The plaintiff has not filed a motion to amend the complaint to add these new "defendants," and there is no indication that these "defendants" have been served with process. The Court, however, shall liberally construe the plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss as a motion to amend the Complaint.

 Since the plaintiff amended his Complaint on November 29, 1996 to add the defendants Barram and Kinard, the plaintiff can only amend his Complaint again with leave of the Court. *fn1" While Rule 15(a) states that leave to amend shall be freely given, it does not mean that leave must be granted in all cases. 6 Charles Alan Wright et al., Federal Practice and Procedure § 1487 (2d ed. 1990). The decision whether to permit a party to amend a pleading is within the discretion of the court. See Firestone v. Firestone, 316 U.S. App. D.C. 152, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (granting or denying leave to amend is committed to district court's discretion); Atchinson v. District of Columbia, 315 U.S. App. D.C. 318, 73 F.3d 418, 425 (D.C. Cir. 1996) (holding that district court has discretion to grant or deny leave to amend).

 A motion to amend the Complaint should be denied as "futile" if the complaint as amended could not withstand a motion to dismiss. See Wright et al., supra, at § 1487; Glick v. Koenig, 766 F.2d 265, 268-69 (7th Cir. 1985) (holding that district court is justified in denying amendment of pleadings if proposed amendment would not withstand motion to dismiss); Jones v. Community Redevelopment Agency of Los Angeles, 733 F.2d 646, 650-51 (9th Cir. 1984) (district court properly denied leave to amend complaint where second amended complaint failed to state § 1983 claim, thus failing to correct deficiencies of first amended complaint); see also Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962) (enunciating general standard that motion for leave to amend shall be freely given unless reason, such as "futility" is declared).

 Here, Graves cannot state a claim against the additional "defendants," because he has not alleged that the additional "defendants" conspired to keep him unemployed or underemployed because of his membership in a protected class. Therefore, he will not be permitted to amend his Complaint to add them to this lawsuit.

 Graves has not alleged any unlawful purpose underlying David Esquith's refusal to release funds from the Department of Education. See Opp'n at 2. Likewise, he has failed to allege that Larry Roffee, Executive Director of the ACCESS Board did anything illegal. See Opp'n at 3-5. Further, Graves fails to allege that David Capozzi of the ACCESS Board conspired with anyone; the plaintiff alleges only that Capozzi had some communications with the EEOC. Id. While he claims that Ceil Stein of the ACCESS Board allegedly mishandled his employment application, Graves alleges no facts showing that she conspired with anyone. Id. The mere allegation that Kinard "alerted" Stein and Capozzi that Graves was "angry and that they would be hearing from him" would not, as a matter of law, support a finding of conspiracy to deprive Graves of his civil rights. Finally, Graves has not alleged a conspiracy merely by asserting that defendants Hughey, Esquith, Capozzi and Roffee "maintain ongoing regular social and professional relationships and discourse." Id. at 5.

 In sum, the plaintiff's allegations against these additional "defendants" do not constitute a conspiracy as a matter of law. Consequently, amendment of the Complaint to add these defendants would be futile. Therefore, for the purposes of this case, the defendants are only those defendants named in the plaintiff's Complaint and Amended Complaint - the United States; Richard Riley, United States Secretary of Education; Kathleen K. Parker, Chairperson of the ACCESS Board; Anne Marie Hughey, Executive Director of NCIL; David Barram, Administrator of GSA; and Pearl Kinard, EEO Counselor of GSA.

 B. THE COURT SHALL GRANT THE DEFENDANTS' MOTIONS TO DISMISS.

 1. The plaintiff's § 1985 claims against the United States are barred by ...


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