[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 4, 2008
No. 07-14876 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-01688-CV-ODE-1
JOHN CLARK,
Plaintiff-Appellant,
versus
GERARDO MALDONADO,
Warden,
DELRA WILLIS,
Supervisor of Unicor,
DARRYL ACRES,
Supervisor of SIS,
DARREL ACERS,
Head of SIS,
MICHAEL BRANCH,
Captain,
OTHERS WHOSE IDENTITIES PRESENTLY ARE UNKNOWN,
Defendants-Appellees.
________________________
No. 07-14921
Non-Argument Calendar
________________________
D. C. Docket No. 07-01743-CV-ODE-1
JOHN ALDON CLARK, II,
Plaintiff-Appellant,
versus
GERARDO MALDONADO,
Warden,
DELRA WILLIS,
Supervisor of Unicor,
DARRYL ACRES,
Head of SIS,
MICHAEL BRANCH,
Captain,
OTHERS WHOSE IDENTITIES PRESENTLY ARE UNKNOWN,
Defendants-Appellees.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(August 4, 2008)
Before CARNES, HULL and PRYOR, Circuit Judges.
2
PER CURIAM:
John Clark, a pro se federal prisoner, appeals the district court’s sua sponte
dismissal of his Bivens 1 complaint against defendants Gerardo Maldonado, Delra
Willis, Darryl Acres, and Michael Branch, all federal prison officials. After
review, we vacate the district court’s dismissal order.
Clark’s complaint alleged that defendants violated his Eighth Amendment
rights by failing to protect him from an attack by another prisoner. According to
Clark’s complaint, while at his workstation in the prison’s Unicor factory, Clark
was stabbed in the neck and back by inmate Damion Rowe with scissors issued
from the Unicor tool room. The day before, Clark had assaulted Rowe.
Clark’s complaint alleged that all prison employees were aware of the “War”
between inmates who were members of the Bloods and the Crips and that the
“War” would “always subject those inmates to risk of [a] substantial harm.” Clark
further alleged that prison officials knew of his “gang status,” knew that there had
been a “serious altercation” between Clark and Rowe the day before and knew that
Rowe had been issued a pair of scissors from the tool supply room on the day of
the attack. Clark alleged that immediately after Rowe’s assault of Clark, a guard
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.
Ct. 1999 (1971). Clark filed two nearly identical complaints in the district court. The district
court issued one order dismissing both complaints, and Clark filed one notice of appeal. The
two cases were subsequently consolidated by this Court.
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reassured Clark that Rowe’s attack was not Clark’s fault, but “the result of a
‘Prison Life Time Wa[r]’ between two rival street gangs (Crips vs. Bloods).”
Clark’s complaint quoted the prison’s response to his grievance, which stated:
“[Y]ou were assaulted on July 25, 2005, which is approximately four
months ago. According to the investigation, you assaulted your
assailant the day prior to you being assaulted[.] Both of these assaults
were considered to be gang related between two rival street gangs
(Crips vs Bloods). You were afforded the same protection and
security as the inmate who you assaulted.”
Clark alleged that defendants’ subjective knowledge of a substantial risk of harm
could be inferred from these facts.
After conducting a 28 U.S.C. § 1915A frivolity screening, the district court
sua sponte dismissed Clark’s complaint for failure to state a claim. Specifically,
the district court concluded that Clark’s complaint failed to allege that defendants
had subjective knowledge of the risk of harm to Clark. The district court pointed
out that Clark had not alleged that, before prison officials conducted their post-
attack investigation, they actually were aware of Clark’s earlier attack on Rowe or
that it was likely Rowe would retaliate.
On appeal, Clark argues that the district court erred in dismissing his
complaint with prejudice without first giving him the opportunity to amend it.2 We
2
We review de novo a sua sponte dismissal pursuant to § 1915A for failure to state a
claim. Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1278-79 (11th Cir. 2001).
4
agree.
Prior to 2002, a district court could not dismiss a complaint with prejudice
without first giving the plaintiff a chance to amend the complaint if a more
carefully drafted complaint might state a claim. Bank v. Pitt, 928 F.2d 1108, 1112
(11th Cir. 1991). In 2002, we overruled Bank and held that, “[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.” Wagner v. Daewoo Heavy
Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc) (emphasis added).
We were careful to note, however, that our holding did not address pro se
complaints. Id. at 542 n.1. Thus, the Bank rule remains applicable to pro se
litigants when their complaints are dismissed with prejudice.
Here, the district court dismissed Clark’s complaint with prejudice. See Fed.
R. Civ. P 41(b) (providing that, unless a dismissal order states otherwise, an
involuntary dismissal “operates as an adjudication on the merits”).3 However, as
the district court’s order highlights, Clark may be able to allege facts sufficient to
show defendants’ subjective knowledge of a substantial risk of harm to him – that
3
When a complaint is sua sponte dismissed without prejudice, the pro se plaintiff often
can refile. However, the district court dismissed Clark’s complaint with prejudice, which
triggers the Bank rule.
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is, that defendants Maldonado, Willis, Acres and Branch were aware prior to the
attack that there was a substantial risk that Rowe would seriously harm Clark.4
Accordingly, pursuant to Bank, we vacate the district court’s dismissal of Clark’s
complaint and remand for the district court to allow Clark to amend his complaint.5
VACATED AND REMANDED.
4
On appeal, Clark does not argue that his complaint sufficiently alleged defendants’
subjective awareness that a substantial risk of serious harm existed. Although the district court
found that Clark’s complaint failed to allege that defendants knew of Clark’s earlier attack on
Rowe before their investigation, we note that Clark’s complaint alleged that the defendants “had
knowledge before hand, the time of work; a day prior Plaintiff, Mr. John Clark and the Attacker,
Mr. Damion Rowe did have a serious altercation.” Because Clark does not argue this issue on
appeal and, in any event, will be permitted to amend his complaint on remand, we do not address
whether this allegation was sufficient to state an Eighth Amendment claim.
5
At the § 1915A stage, the defendants have not been served and thus have not filed an
answer in the district court or a brief on appeal. Therefore, we limit our opinion solely to the
district court’s sua sponte dismissal, and nothing herein shall prejudice the defendants, once
served, from raising any and all deficiencies or defenses the defendants may wish to assert as to
whether Clark’s amended complaint states a claim for relief.
6