Filed: Mar. 24, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 13-13761 Date Filed: 03/24/2014 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-13761 Non-Argument Calendar _ D.C. Docket No. 2:12-cv-00113-LGW-JEG ERIC WATKINS, Plaintiff - Appellant, versus ASSOCIATE WARDEN D. HUDSON, in his individual capacity, Defendant - Appellee. _ Appeal from the United States District Court for the Southern District of Georgia _ (March 24, 2014) Before HULL, MARCUS, and JORDAN, Circuit Judges. PER CURIAM: Case
Summary: Case: 13-13761 Date Filed: 03/24/2014 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-13761 Non-Argument Calendar _ D.C. Docket No. 2:12-cv-00113-LGW-JEG ERIC WATKINS, Plaintiff - Appellant, versus ASSOCIATE WARDEN D. HUDSON, in his individual capacity, Defendant - Appellee. _ Appeal from the United States District Court for the Southern District of Georgia _ (March 24, 2014) Before HULL, MARCUS, and JORDAN, Circuit Judges. PER CURIAM: Case:..
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Case: 13-13761 Date Filed: 03/24/2014 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13761
Non-Argument Calendar
________________________
D.C. Docket No. 2:12-cv-00113-LGW-JEG
ERIC WATKINS,
Plaintiff - Appellant,
versus
ASSOCIATE WARDEN D. HUDSON,
in his individual capacity,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(March 24, 2014)
Before HULL, MARCUS, and JORDAN, Circuit Judges.
PER CURIAM:
Case: 13-13761 Date Filed: 03/24/2014 Page: 2 of 7
Eric Watkins, who was formerly incarcerated at the Federal Correctional
Institution in Jesup, Georgia, and is proceeding pro se, appeals the dismissal of his
complaint, filed under Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), for failure to state a claim upon which relief may
be granted. After review, we affirm the dismissal, but conclude that the district
court erred in failing to grant Mr. Watkins leave to amend his complaint, and thus
vacate and remand for further proceedings.
I
Mr. Watkins filed a pro se complaint under Bivens, alleging First
Amendment retaliation and Fifth Amendment due process claims against D.
Hudson, the Associate Warden at FCI Jesup. Mr. Watkins alleged that on October
29, 2009, he fell asleep while a video was being shown during FCI Jesup’s
admissions and orientation program. Associate Warden Hudson woke him up and
asked him to step outside. He then told Mr. Watkins that he needed to wake up
and act as if he were interested in the video. Mr. Watkins replied that he did not
need to wake up. According to Mr. Watkins, Associate Warden Hudson then
fabricated an incident report, charging Mr. Watkins with refusing to obey his order
to wake up and act as if he were interested in the video.
Mr. Watkins alleged that, due to the fabricated incident report, he was
removed from the general population and placed in administrative detention in
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violation of the Fifth Amendment. He further asserted that he had a liberty interest
in remaining in the general population, and that this interest was infringed when he
was removed. Mr. Watkins also alleged that sleeping during the admissions and
orientation program was not prohibited by Bureau of Prisons rules, nor was he on
notice of any such prohibition, and, therefore, his actions did not constitute a valid
reason for his removal from the general population and subsequent placement into
administrative detention. Finally, Mr. Watkins claimed that his First Amendment
right to free speech was violated when Associate Warden Hudson retaliated against
him and ordered him to be placed in administrative detention.
In accordance with 28 U.S.C. § 1915A, the district court conducted a
preliminary screening and dismissed Mr. Watkins’ First Amendment retaliation
claim for failure to state a claim. The district court allowed Mr. Watkins’ Fifth
Amendment claim to proceed because it found that Mr. Watkins’ allegations
arguably stated a claim for violation of his right to due process. It ordered service
of the complaint on Associate Warden Hudson, who responded by filing a motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6). The district court
ultimately granted the motion to dismiss, concluding that Mr. Watkins made no
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allegations that he suffered an atypical and significant hardship in being removed
from the prison’s general population and being placed in administrative detention. 1
II
We first address Associate Warden Hudson’s argument that we lack
jurisdiction to review the district court’s dismissal of the First Amendment
retaliation claim because Mr. Watkins’ notice of appeal does not specifically list
the district court’s order dismissing that claim. We are not persuaded by the
argument.
The notice of appeal states that Mr. Watkins is appealing from the final
judgment issued on June 17, 2013. “[T]he appeal from a final judgment draws in
question all prior non-final orders and rulings which produced the judgment.”
Barfield v. Brierton, 883 F.2d 923, 930 (11th Cir. 1989). As a result, and because
we construe pro se filings liberally, see Bellizia v. Fla. Dep't of Corr.,
614 F.3d
1326, 1329 (11th Cir. 2010), we have jurisdiction to review Mr. Watkins’
challenge to the district court’s dismissal of the First Amendment retaliation claim.
III
Under § 1915A, a district court shall review, as soon as possible, a
prisoner’s complaint in a civil action against a government entity or employee of a
1
Because the dismissal orders did not state that they were without prejudice, the
dismissal was by law with prejudice. See Fed. R. Civ. P. 41(b) (providing that any dismissal
except for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 operates
“as an adjudication on the merits” unless “the dismissal order states otherwise”).
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governmental entity. See 28 U.S.C. § 1915A(a). The district court must dismiss
the complaint if it is “frivolous, malicious, or fails to state a claim upon which
relief may be granted.” 28 U.S.C. § 1915A(b)(1).
A dismissal under § 1915A is governed by the same standards as a dismissal
under Rule 12(b)(6). See Jones v. Bock, 549 U.S. 199, 215-16 (2007); Leal v. Ga.
Dep't of Corrs.,
254 F.3d 1276, 1278-79 (11th Cir. 2001). That is, although the
complaint need not provide detailed factual allegations, it must contain “sufficient
factual matter” to state a claim that is “plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Accord Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555
(2007).
Even construing his pro se brief liberally, Mr. Watkins admits that the
allegations in his complaint failed to state a claim for First Amendment retaliation
or for a Fifth Amendment due process violation under Bivens. Thus, we affirm the
dismissal of those claims, but address Mr. Watkins’ contention that the district
court erred by dismissing his claims with prejudice and without first granting him
leave to amend.
We review a district court’s decision to grant or deny leave to amend only
for an abuse of discretion. See Forbus v. Sears Roebuck & Co., 30 F.3d 1402,
1404 (11th Cir. 1994). The district court erred by dismissing the complaint
without affording Mr. Watkins an opportunity to amend. When it appears that a
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pro se plaintiff’s complaint, if more carefully drafted, might state a claim, the
district court should give the pro se plaintiff an opportunity to amend his complaint
instead of dismissing it. See 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 (11th Cir. 2002) (en banc). 2
A court must therefore afford a plaintiff an opportunity to amend his pro se
complaint before dismissing with prejudice unless the plaintiff expresses a desire
not to amend or an amendment would be futile. See id. at 1112. Here, Mr.
Watkins never expressed a desire not to amend his complaint. Indeed, in his
objection to the magistrate’s report recommending dismissal of the Fifth
Amendment claim, Mr. Watkins included additional factual allegations with
respect to the purported atypical and significant hardship he encountered in
administrative detention. Without commenting on the sufficiency of those
allegations, we cannot say with certainty that allowing Mr. Watkins to amend his
complaint would be futile. Nor can we say that additional allegations could not
demonstrate that Associate Warden Hudson’s purported decision to place Mr.
2
In Wagner, we overruled Bank with respect to counseled plaintiffs who failed to request
leave to amend. See Wagner, 314 F.3d at 542 (“A district court is not required to grant a plaintiff
leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never
filed a motion to amend nor requested leave to amend before the district court.”). But pro se
litigants are held to a less stringent standard, see Tannenbaum v. United States,
148 F.3d 1262,
1263 (11th Cir. 1998), and our decision in Wagner did not disturb our decision in Bank with
respect to pro se litigants. See
Wagner, 314 F.3d at 542 n.1 (“In this opinion, we decide and
intimate nothing about a party proceeding pro se.”).
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Watkins in administrative detention was in retaliation for Mr. Watkins engaging in
protected speech. Thus, we conclude that the district court erred in dismissing Mr.
Watkins’ First Amendment retaliation and Fifth Amendment due process claims
without granting him leave to amend.
IV
We affirm the district court’s dismissal of Mr. Watkins’ First and Fifth
Amendment claims, but we vacate and remand the dismissal with prejudice so that
Mr. Watkins may be allowed to amend his complaint.
AFFIRMED IN PART, VACATED IN PART, and REMANDED.
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