Whittington v. MilbyWhittington v. Milby
Elizabeth U. Mendel (argued), Woodward, Hobson & Fulton, Louisville, Ky., Willis C. Cunnagin, London, Ky., Robert V. Bullock, Asst. Atty. Gen., Office of the Atty. Gen. of Kentucky, Ryan M. Halloran, Gen. Counsel, Trisha Zeller James, Autumn F. Corns, Cabinet for Human Resources, Office of the Counsel, Frankfort, Ky., for defendants-appellees.
Before NELSON and RYAN, Circuit Judges, and LIVELY, Senior Circuit Judge.
PER CURIAM.
1 This action incorporates a claim under
I
2 In August of 1982 a young unmarried Kentucky woman gave birth to a child whom she agreed to put up for adoption. On the day the child was to be released from the hospital, plaintiff Kristen Clark Whittington filed a petition in the Circuit Court of Jefferson County, Kentucky, asserting rights as the child‘s father. The court denied Mr. Whittington‘s petition, and the child was placed with the prospective adoptive parents.
3 In October of the same year the adoptive parents filed a petition in the Circuit Court for Laurel County, Kentucky--the county of their residence--to terminate the parental rights of both of the child‘s natural parents. An attempt to make personal service of process on Mr. Whittington proved unsuccessful, but in February of 1983 the court nonetheless granted the petition. A petition for adoption was filed shortly thereafter. This petition was also granted, and judgment of adoption was entered in March of 1983.
4 In September of 1984 Mr. Whittington filed a motion in the Laurel County court to set aside the order terminating his parental rights. The court denied the motion. The Kentucky Court of Appeals reversed this decision because it found that the efforts to serve Mr. Whittington with process were not conducted in good faith and that the trial court therefore had not obtained jurisdiction over Mr. Whittington‘s person. The Kentucky Supreme Court reversed the decision of the Court of Appeals and reinstated the judgment of the trial court, finding that service had been attempted in good faith and that the lower court‘s exercise of jurisdiction was proper. We refer the reader to that decision, published at Unknown Person ex rel. Englert v. Whittington, 737 S.W.2d 676 (Ky.1987), cert. denied, 485 U.S. 979, 108 S.Ct. 1276, 99 L.Ed.2d 487 (1988), for a fuller recitation of the pertinent facts.
6 On February 28, 1989, Mr. Whittington moved for leave to amend his complaint to state a more definite claim and to name as defendants certain individual members of the Cabinet. This motion was not accompanied by a copy of the proposed amended complaint.
7 After a pretrial conference in May of 1989 the district court dismissed Mr. Whittington‘s original complaint, with prejudice, on statute of limitations grounds. Mr. Whittington then filed various post-judgment motions, including a motion to vacate, a motion to make specific findings as to his motion to amend the complaint, a motion to make specific findings as to when his cause of action accrued, a motion to make specific findings on the issue of equitable tolling, a motion to extend the time in which to file a reply to the defendants’ response to his motion to vacate, and a motion to subpoena records from the Laurel County Circuit Court. The district court denied each of these motions in an order entered on September 28, 1989. That order provided in part as follows:
8 “[t]hough the plaintiff moved to amend his complaint, he failed to tender an amended complaint. Furthermore, there is nothing in plaintiff‘s motion to amend which would indicate that the plaintiff could escape the one year statute of limitations by amending his complaint. The last three allegations merely represent the plaintiff‘s vehement belief that absent the statute of limitations he would succeed on the merits. The Court acknowledges that the plaintiff is a zealous advocate. However, even a strong belief in one‘s own case is insufficient to overcome the well-established bar to actions filed outside the limitations period. Therefore, the Court finds that no justifiable reason for relief from judgment has been asserted and judgment will stand.”
9 Five days later, on October 3rd, the district court issued the following order:
10 “In its Order of September 28, 1989, this Court stated that no amended complaint accompanied the plaintiff‘s motion which was filed on February 28, 1989. Upon review of the record, the Court finds that an amended complaint was tendered to the Court on March 28, 1989, one month following the filing of the motion to amend. This Court, in its discretion and by virtue of its actions, denied leave to amend the complaint and reiterates that ruling in this Order.
11 IT IS HEREBY ORDERED that the motion to amend the complaint be and hereby is DENIED.
12 This is a final and appealable Order, there being no just cause for delay.”
13 On November 2, 1989, Mr. Whittington filed his notice of appeal. He is now represented by counsel.
II
14 We must first consider whether Mr. Whittington‘s notice of appeal was timely.
15 “[i]n a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by
16 In the case at bar, Mr. Whittington filed his notice of appeal on November 2, 1989--within 30 days of the court‘s order of October 3rd, but not within 30 days of its order of September 28th. In the notice of appeal itself, Mr. Whittington asserted that the second order superseded the first; we do not believe that this assertion is correct.
18 “[T]he mere fact that a judgment previously entered has been reentered or revised in an immaterial way does not toll the time within which review must be sought. Only when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken or a petition for certiorari filed begin to run anew. The test is a practical one. The question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality.” Federal Trade Commission v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-212, 73 S.Ct. 245, 248-49, 97 L.Ed. 245 (1952).
19 The district court‘s order of October 3rd did not “disturb or revise” legal rights settled by its order of September 28th. The only reason for issuance of the October 3rd order appears to have been that the court wished to correct its earlier statement that Mr. Whittington had failed to tender a copy of his amended complaint. Under ordinary circumstances we would conclude that the order of September 28th was the final order from which Mr. Whittington was obligated to appeal in a timely fashion and that because he did not file his notice of appeal within thirty days of that date his complaint should be dismissed for lack of appellate jurisdiction. See
20 What makes this case unusual is a fact to which Mr. Whittington drew our attention in a supplemental brief filed after we raised the jurisdictional issue: the district court failed to comply with the “separate document” rule of
21 It is true that the district court did not enter a separate judgment with respect to its October 3rd order either. We have previously held, however, that the parties to an appeal may waive the separate judgment requirement where three conditions have been met: first, the district court must “‘clearly evidence[ ] its intent that the opinion ... represent[ed] the final decision in the case‘“; second, the judgment must have been “properly recorded on the clerk‘s docket“; and third, “the appellee from the district court [must not have] objected to perfecting the appeal from that order.” Id. (quoting Bankers Trust v. Mallis, 435 U.S. 381, 387, 98 S.Ct. 1117, 1121, 55 L.Ed.2d 357 (1978)). In the case at bar, the district court‘s order of October 3rd met each of these requirements. We therefore conclude that the 30-day period described in
III
22 A second preliminary question we are constrained to mention is whether venue was proper in the Western District of Kentucky.
IV
24 The district court dismissed the Sec. 1983 claim as “barred by the one year statute of limitations.” Because Mr. Whittington‘s complaint was filed in 1989, and because it was only in 1990 that this court finally decided that Sec. 1983 actions brought in Kentucky were subject to the one-year limitation of
25 We first consider Mr. Whittington‘s claim against Mr. Cunnagin, Mr. Evans, and Judge Luker. Under Wells v. Brown, 891 F.2d 591, 594 (6th Cir.1989), absent any indication that these defendants are being sued individually, we must assume that they are being sued in their official capacities--county attorney, warning officer attorney, and judge, respectively. Because Mr. Whittington is seeking monetary relief only, his Sec. 1983 claim against these officials cannot be sustained. Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989) (a state official, sued in his official capacity for monetary relief, is not a “person” within the meaning of Sec. 1983); Walden v. Wishengrad, 745 F.2d 149, 152 (2d Cir.1984) (county attorneys authorized to represent the interests of the county in proceedings to terminate parental rights enjoy absolute immunity from Sec. 1983 suits for damages).
26 Neither can the plaintiff maintain a Sec. 1983 action against Mr. Milby and Ms. Ridings. As we stated in Bier v. Fleming, 717 F.2d 308, 310, 311 (6th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1283, 79 L.Ed.2d 686 (1984),
27 “[t]o be entitled to relief under Sec. 1983, plaintiff must establish that defendant deprived him of a right secured by the Constitution and the laws of the United States and that the deprivation occurred under color of state law. The ultimate issue in determining whether a person is subject to suit under Sec. 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights ‘fairly attributable to the state?’ ... The Supreme Court has developed the so-called nexus test to determine whether conduct of a private actor is fairly attributable to a state. Under this test, a finding of state action may be made when ‘there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the latter may be fairly treated as that of the State itself.’ ... The required nexus may be established by showing that the State has ‘exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.’ Also a nexus may be established if the private entity has exercised powers that are ‘traditionally the exclusive prerogative of the State.’ ” (Citations omitted.)
28 Applying this test here, we find that the representation of the child‘s adoptive parents by Mr. Milby and Ms. Riding did not constitute state action.
29 The Kentucky Cabinet of Human Resources was not subject to suit by Mr. Whittington because a state agency may not be sued in federal court, regardless of the relief sought, unless the state has waived its sovereign immunity or Congress has overridden it. Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978). It is well settled that “Congress [did not] intend[ ] by the general language of Sec. 1983 to override the traditional sovereign immunity of the States.” Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358 (1979).
V
31 Accordingly, the district court‘s dismissal of the plaintiff‘s Sec. 1983 claim is AFFIRMED, but its dismissal of the plaintiff‘s pendent state-law claims is VACATED and the case is REMANDED with instructions to dismiss those claims without prejudice.