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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16018
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D.C. Docket No. 1:16-cv-01030-CAP
DAMENE W. WOLDEAB,
Plaintiff - Appellant,
versus
DEKALB COUNTY BOARD OF EDUCATION,
Defendant - Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 21, 2018)
Before WILSON and BLACK, Circuit Judges, and SCHLESINGER,* ∗Judge.
WILSON, Circuit Judge:
* Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of
Florida, sitting by designation.
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Damene Woldeab, an Ethiopian male, appeals the district court’s grant of the
DeKalb County Board of Education’s (Board) motion to dismiss his action alleging
national origin discrimination, retaliation, and harassment in violation of Title VII.
In his counseled appellate brief, Woldeab argues that the district court erred by
dismissing his pro se complaint with prejudice. He contends that his failure to
name the DeKalb County School District (School District) as the defendant rather
than the Board was a curable defect, 1 and that the district court should have given
him an opportunity to amend his complaint to name the proper defendant. The
Board responds that the district court was not required to give Woldeab an
opportunity to amend his complaint sua sponte because Woldeab disagreed that the
complaint should be amended, and it further argues that any amendment would be
futile. After review, and with the benefit of oral argument, we vacate the dismissal
and remand with instructions to give Woldeab an opportunity to file an amended
complaint.
I.
A magistrate judge recommended the Board’s motion to dismiss be granted
because the Board is not a legal entity capable of being sued. See Cook v. Colquitt
Cty. Bd. of Educ., 412 S.E.2d 828, 828 (Ga. 1992). Alternatively, the report and
recommendation (R&R) stated that even if Woldeab substituted a defendant with
1
In his counseled brief, Woldeab does not argue that the Board is a proper defendant.
2
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the capacity to be sued, the magistrate judge would still recommend his complaint
be dismissed for failure to state a claim. Woldeab, proceeding pro se, objected on
the basis that he believed the Board should be held accountable for its actions. He
also objected to, inter alia, the R&R’s recommendation his complaint be dismissed
for failure to state a claim.
The district court agreed with the magistrate judge’s determination that a
county board of education in Georgia cannot be sued, and therefore the Board
could not be sued. While the district court stated it “adopts the report and
recommendation as the opinion and order of this court,” it went on to clarify which
of the grounds considered by the magistrate judge it was endorsing, stating
“[b]ecause the magistrate judge properly ruled that the DeKalb County Board of
Education is not an entity capable of being sued, the court will not address the
plaintiffs remaining objections. The remaining objections are DISMISSED as
MOOT.” Woldeab appealed, pro se, to this Court. Counsel was appointed when
this case was set for oral argument and counsel filed a replacement brief.
II.
We review a district court’s decision to deny leave to amend for abuse of
discretion. Santiago v. Wood, 904 F.2d 673, 675 (11th Cir. 1990). A district
court’s discretion to deny leave to amend a complaint is “severely restricted” by
Fed. R. Civ. P. 15, which stresses that courts should freely give leave to amend
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“when justice so requires.” Thomas v. Town of Davie, 847 F.2d 771, 773 (11th
Cir. 1988). “Where a more carefully drafted complaint might state a claim, a
plaintiff must be given at least one chance to amend the complaint before the
district court dismisses the action with prejudice.” Bank v. Pitt, 928 F.2d 1108,
1112 (11th Cir. 1991 ), overruled in part by Wagner v. Daewoo Heavy Indus. Am.
Corp., 314 F.3d 541, 542 & n.l (11th Cir. 2002) (en banc) (overruling Bank as to
counseled plaintiffs, but deciding “nothing about a party proceeding pro se”). This
rule applies even when the plaintiff does not seek leave to amend the complaint
until after final judgment. Id. But a district court need not grant leave to amend
when either (1) “the district court has a clear indication that the plaintiff does not
want to amend his complaint,” or (2) “a more carefully drafted complaint could not
state a claim.” Id.
Here, the district court abused its discretion in dismissing Woldeab’s case
with prejudice because he never “clearly indicated” he did not want to amend, and
because a more carefully crafted complaint might be able to state a claim. The
Board argues Woldeab indicated his unwillingness to amend his complaint by
failing to respond to the motion to dismiss and by failing to amend after the R&R.
However, Woldeab was not required to accept the Board’s argument in its motion
to dismiss as true. See Santiago, 904 F.2d at 676 (stating that a plaintiff is not
required to consider an opponent’s arguments as properly stating the law). And
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although the R&R found that the Board could not be sued, Woldeab’s objection to
the R&R demonstrates his confusion as a pro se plaintiff “unschooled in the
intricacies of Title VII pleading.” Id. at 675. Woldeab construed the R&R as
saying no one is accountable for the actions alleged, as he argued: “Does it mean
[the] Local Board of Education is not accountable for the action the board makes
which is recommending hiring, firing and intimidating teachers? Who is
accountable . . .? I contest the Board of Education should be accountable.” This is
not a refusal to amend.
Further, the deficiencies in Woldeab’s complaint might be curable. Neither
the magistrate judge nor the district court held that repleading the factual
allegations behind the June 2014 Title VII claims would be futile. While the
magistrate judge did find that amending to include the proper defendant would not
save the complaint, this says nothing of whether Woldeab might be able to make
out a plausible claim if given the opportunity to replead the factual allegations.
And we have held that where “[m]ore specific allegations . . . would have remedied
the pleading problems found by the district court,” the court was required to give a
pro se plaintiff the opportunity to amend his complaint. Thomas, 847 F.2d at 773.
Because a more carefully drafted complaint, which includes more specific
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allegations against the correct defendant, might state a Title VII claim, Woldeab’s
complaint does not fit into the futility exception to Bank.2
The district court should have advised Woldeab, proceeding pro se, of his
complaint’s deficiency and given him the opportunity to amend to name the proper
defendant before the court dismissed with prejudice. Accordingly, we VACATE
the dismissal of Woldeab’s complaint and REMAND with instructions to give
Woldeab an opportunity to file an amended complaint.
VACATED and REMANDED.
2
We note Woldeab concedes any allegations based on adverse employment actions that may
have occurred prior to January 1, 2014, and were not timely filed in the district court. [Gray
Brief at 12]. However, because a discrimination claim based on his June 25, 2014 termination
has been properly exhausted, administrative exhaustion cannot provide the basis for futility
regarding that claim.
6