[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12090 MARCH 23, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 6:10-cv-00384-JA-DAB
SCOTT R. ZABRISKIE,
lllllllllllllllllllll Plaintiff-Appellant,
versus
BOB HANSELL,
Sheriff of Osceola,
JOHN DOE NO. 1,
JOHN DOE NO. 4,
JOHN DOE NO. 5,
JOHN DOE NO. 2, et al.,
lllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 23, 2011)
Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Scott Ray Zabriskie, proceeding pro se, appeals the district court’s dismissal
of his 42 U.S.C. § 1983 action as frivolous. The district court adopted the magistrate
judge’s report and recommendation denying Zabriskie’s motion to proceed in forma
pauperis and sua sponte dismissing the case as frivolous, pursuant to 28 U.S.C. §
1915(e)(2)(B)(i), because Zabriskie was bound by his representation in another
pending case, and therefore could not maintain his factually inconsistent position in
the instant case. See Scott Ray Zabriskie v. City of Kissimmee Police Department,
case no. 6:10-cv-70-PCF-KRS. After the dismissal, Zabriskie amended the complaint
in the City of Kissimmee case, which resolved the inconsistency underlying the
district court’s order dismissing the instant case as frivolous. On appeal, Zabriskie
argues that his complaint in the instant case at least meets the minimal pleading
standards for pro se plaintiffs, that the “minor error” in the City of Kissimmee
complaint has been resolved, and that the district court erred when it dismissed the
instant case without sua sponte offering Zabriskie an opportunity to amend the
complaint in the City of Kissimmee case. After thorough review, we vacate and
remand.
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We review a district court’s sua sponte dismissal for frivolity under 28 U.S.C.
§ 1915(e)(2)(B)(i) for abuse of discretion. Hughes v. Lott, 350 F.3d 1157, 1160 (11th
Cir. 2003); Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). We also review for
abuse of discretion denials of leave to amend, Troville v. Venz, 303 F.3d 1256, 1259
(11th Cir. 2002), but we review questions of law de novo. Williams v. Board of
Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1291 (11th Cir. 2007).
Pursuant to Federal Rule of Civil Procedure 15(a), a party may amend its
pleading once as a matter of course at any time before a responsive pleading is
served. Fed.R.Civ.P. 15(a)(1). We have held: “[w]here 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 (11th Cir. 2002) (en banc) (not
addressing pro se plaintiffs). We apply the rule even where the plaintiff never sought
leave to amend in the district court before filing an appeal. Id.
Here, the district court did not abuse its discretion when it dismissed the instant
case nor when it did not sua sponte offer Zabriskie an opportunity to amend the
complaint in the City of Kissimmee case, because the complaint in this case was
implausible on its face, and Zabriskie failed to resolve the inconsistency after it was
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pointed out to him by the district court. However, Zabriskie has now amended the
complaint in the City of Kissimmee case. Therefore, the factual inconsistency
underlying the district court’s dismissal in the instant case has been resolved. We
vacate the district court’s order dismissing the case, and remand to the district court
for proceedings consistent with this opinion.1
VACATED AND REMANDED.
1
In addition, Scott Zabriskie’s Motion to Supplement the Record (Motion to Add/Amend
Appendix for Initial Brief) is GRANTED.
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