Anthony M. Wilger and Martha D. Wilger v. Department of Pensions and Security for the State of Alabama
Anthony M. WILGER and Martha D. Wilger, Plaintiffs-Appellants, v. DEPARTMENT OF PENSIONS AND SECURITY FOR the STATE OF ALABAMA, Defendant-Appellee
Opinion
PER CURIAM:
Anthony M. Wilger and his wife, Martha, brought this appeal after their pro se complaint against the Department of Pensions and Security for the State of Alabama (the Department) for damages and equitable relief based upon the Department’s removal of eight of their children from their custody was dismissed. For the reasons set forth below, we remand the case to the district court.
The background to this appeal is somewhat involved. The Wilgers moved from Wisconsin to Alabama in 1969, and have had frequent contacts with the Department since that time. The Department feels that the Wilgers are not properly able to care for most of their children; at various times and in various state court proceedings the Department has been granted custody of eight Wilger children.
On December 14, 1977, the Wilgers filed their pro se complaint in district court claiming $1,000,000,000 in damages from the Department and equitable relief. On January 5, 1978, the Department filed a motion to quash and vacate and set aside service of process and to dismiss. Numerous grounds for dismissal were alleged, including improper service of process, failure to state a claim upon which relief could be granted, lack of federal court jurisdiction because of the eleventh amendment, U.S. Const, amend. XI, and lack of subject matter jurisdiction. After the Wilgers filed an amended complaint, record at 23-24, and various other pleadings were generated, the court dismissed the Wilgers’ action. In its order of January 22, 1978, the court stated: “Upon consideration of the motion to dismiss filed in this case by the defendant Department of Pensions and Security for the State of Alabama on January 5,1978, it is ORDERED that said motion be and is hereby granted and this cause be and is hereby dismissed.”
Id.
at 43. It is this order of dismissal that is now before us.
We note that the court below gave no grounds for its order of dismissal and failed to specify that the dismissal was with prejudice. We further observe that the motion to dismiss set forth many potential grounds for dismissal. We assume that the dismissal of this action was predicated upon the eleventh amendment, see, e. g., Quern v. Jordan, - U.S. -, 99 S.Ct. 1139 , 59 L.Ed.2d 358 (1979);
Edelman v. Jordan, 415 U.S. 651 , 94 S.Ct. 1347 , 39 L.Ed.2d 662 (1974), and not based upon the merits of the Wilgers’ claim (i. e., it was without prejudice). In their pro se complaint the Wilgers made allegations which indicate that there may be individuals (whether state officials or others) who are amenable to suit in federal court. The Wilgers should be allowed to amend their complaint in order to add such parties-defendant as they choose to name. Accordingly, we remand this case to the district court with the direction that it accord the Wilgers a reasonable opportunity to amend their complaint and add parties-defendant to the action. As for the Department, the claim for damages against it stands dismissed.
AFFIRMED IN PART AND REMANDED IN PART WITH DIRECTIONS.
How later courts describe this case
Explanatory parentheticals written by citing courts — 6 in all; the most informative distinct ones are shown.
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(allowing pro se plaintiffs the opportunity to amend because there were indications that individuals not named in the original complaint could have been proper defendants)
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(directing district court to permit pro se plaintiffs “to amend their complaint in order to add such parties-defendant as they choose to name.”)
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(affirming dismissal of suit but remanding for plaintiff to add additional defendants)
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(allowing plaintiffs to add defendants that could not assert state sovereign immunity)
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(“In their pro se complaint the Wilgers made allegations which indicate that there may be individuals (whether state officials or others)
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(“A stay should not be granted unless it appears likely the other 13 proceedings will be concluded within a reasonable time.”)
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