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                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-11076
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 5:16-cv-00287-LC-GRJ



MARTINEZ LUIS ALBERTO,

                                                             Plaintiff-Appellant,

                                   versus

SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, and
SECRETARY, WASHINGTON STATE
DEPARTMENT OF CORRECTIONS,

                                                         Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                              (April 30, 2019)

Before WILSON, GRANT, and HULL, Circuit Judges.

PER CURIAM:
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      Martinez Luis Alberto, a Washington state inmate serving his sentence in a

Florida state prison, appeals the dismissal of his 42 U.S.C. § 1983 complaint

alleging violation of his constitutional right of access to the courts. Specifically,

Alberto states that he has been denied access to Washington legal materials that he

needs in order to attack his conviction. After careful review, we vacate and

remand with instructions to grant Alberto leave to amend his complaint.

                                           I.

      In 2006, Alberto was convicted in Washington of first-degree murder and

second-degree assault with a firearm. He was sentenced to thirty-four years in

prison and committed to the custody of the Washington State Department of

Corrections (WDOC). On October 1, 2012, Alberto was transferred to the Florida

Department of Corrections (FDOC) under an interstate compact agreement.

Alberto wants to attack his Washington conviction, but he was transferred to

Florida without any of his legal documents. He also has no access to Washington

case law, statutes, or rules of procedure. Alberto claims to have exhausted his

administrative remedies in seeking access to these legal materials. Neither the

WDOC nor the FDOC has provided him with access to date.

      On October 12, 2016, Alberto filed a pro se 42 U.S.C. § 1983 complaint

seeking damages and injunctive relief for the violation of his constitutional right of

access to the courts. He later amended that complaint as a matter of course on


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January 23, 2017. Both the original and amended complaints named two

defendants: the Secretary of the Florida Department of Corrections, Julie Jones,

and the Secretary of the Washington State Department of Corrections, Dan

Pacholke. Because Alberto was granted leave to proceed in forma pauperis, the

district court was responsible for serving process on the defendants on his behalf.

See 28 U.S.C. § 1915(d). A magistrate judge ordered marshals to serve process on

the Florida Secretary. The magistrate refused to direct service on the Washington

Secretary, however, on grounds that Alberto was in FDOC custody and

challenging FDOC policy.

      The Florida Secretary moved to dismiss Alberto’s complaint. The

magistrate issued a report and recommendation concluding that Alberto’s damages

claims were barred, and that he had failed to state a claim for injunctive relief

because he did not articulate what “nonfrivolous, arguable underlying claim” he

would bring if he had access to Washington legal materials. The magistrate further

determined that any amendment to the complaint would be futile because Alberto

should have named the Washington Secretary, not the Florida Secretary, as a

defendant. The magistrate recommended dismissal of Alberto’s case without leave

to amend—that is, with prejudice. Over Alberto’s objections, the district court

adopted the magistrate’s report and dismissed the suit.




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      Alberto appealed and filed a motion for appointment of counsel, which this

Court granted on September 5, 2018. Alberto now argues that the district court

imposed a “Catch-22” by demanding that he state a claim under Washington law,

when lack of access to Washington law is the very constitutional violation for

which he seeks relief. He further maintains that the district court erred by

dismissing his case without leave to amend, because he did in fact sue both the

Washington Secretary and the Florida Secretary—at least one of whom, he argues,

must have been a proper defendant. Lastly, Alberto claims that if the Washington

Secretary was the only proper defendant, then the district court abused its

discretion by declining to transfer his case to a federal district court in Washington.

                                          II.

      We review a district court’s denial of leave to amend for abuse of discretion.

Santiago v. Wood, 

, 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 ‘when

justice so requires.’” Woldeab v. Dekalb Cty. Bd. of Educ., 

, 1291

(11th Cir. 2018) (quoting Thomas v. Town of Davie, 

, 773 (11th Cir.

1988)). In addition, when a more carefully drafted complaint might state a claim, a

pro se litigant “must be given at least one chance to amend the complaint before

the district court dismisses the action with prejudice.” 

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      A court may nevertheless dismiss a pro se complaint with prejudice where

any amendment would be futile—that is, where even “a more carefully drafted

complaint could not state a claim.” 

the futility of an amendment de

novo. See Brooks v. Warden, 

, 1300 (11th Cir. 2015). Here, the

court below determined that any amendment to Alberto’s complaint “would be

futile because the sending state [Washington], and not the receiving state [Florida],

has the responsibility for ensuring a prisoner has access to the courts of the sending

state.” Dismissal without leave to amend was appropriate, in the court’s view,

because “Washington State officials, and not Florida correctional officials,” were

the “proper defendants.”

      This was error. The fact that a complaint named the wrong defendant does

not render subsequent amendments futile. On the contrary, we have previously

said that a pro se plaintiff’s failure to include a proper defendant is a curable

defect. 

(holding that a pro se plaintiff should have

been given “the opportunity to amend to name the proper defendant before the

court dismissed with prejudice”). This is the case even if the district court believes

that merely “amending to include the proper defendant would not save the

complaint.” 

more carefully drafted complaint, which includes more

specific allegations against the correct defendant, might state a . . . claim,” the

plaintiff should be granted leave to amend. 

cannot say that Alberto, if


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given the chance to amend his complaint, could not include additional allegations

stating a claim.

       Moreover, at least by the district court’s own reasoning, Alberto did not fail

to sue the proper defendant. The operative complaint clearly identifies the

Washington Secretary as a defendant. It was the district court that declined to

serve the Washington Secretary, on grounds that only the Florida Secretary was a

proper defendant—the opposite of the position it later adopted in granting the

motion to dismiss. In forma pauperis litigants “should be entitled to rely on the

court officers and United States Marshals to effect proper service, and should not

be penalized for failure to effect service where such failure is not due to fault on

the litigant’s part.” Rance v. Rocksolid Granit USA, Inc., 

, 1288

(11th Cir. 2009) (quoting Fowler v. Jones, 

, 1095 (11th Cir. 1990)).

For the court to turn around and fault Alberto for proceeding against the wrong

defendant was unfair and inaccurate.1

       Accordingly, we vacate the judgment and remand with instructions to grant

Alberto an opportunity to amend his complaint. We do not consider in this opinion

whether the Washington Secretary or the Florida Secretary is a proper defendant in

this case. We also leave it to the district court to determine in the first instance


1
  The FDOC makes much of the fact that the Washington Secretary was never served, yet failed
to bring to the Court’s attention that the district court, not Alberto, was responsible for serving
process in this case. Counsel is reminded of the duty of candor to this tribunal.
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whether it has jurisdiction over the Washington Secretary, or whether transfer to a

district court in Washington is appropriate. Finally, we make no ruling on whether

Alberto articulated a sufficient injury to state a claim of access to the courts. We

do note, however, that Alberto was both pro se and an incarcerated inmate when he

filed his complaint. We also note that Alberto seeks access to only five

Washington state court opinions, as well as a limited number of other documents—

the same documents, perhaps, that he would need in order to articulate a claim

under Washington law.

      VACATED and REMANDED.




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