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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12895
Non-Argument Calendar
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D.C. Docket No. 1:09-cv-00165-WLS-TQL
DONALD W. TOENNIGES,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
GEORGIA DEPARTMENT OF CORRECTIONS,
WARDEN, AUTRY STATE PRISON,
MARTY ALLEN,
KEITH JONES,
DR. SAUD, et al.,
llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Georgia
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(December 26, 2012)
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Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Donald Toenniges, a former Georgia state prisoner, appeals pro se the district
court’s grant of the defendants’ motion to dismiss Toenniges’s civil rights action,
brought under 42 U.S.C. § 1983. Toenniges’s complaint included claims of the denial
and/or delay of medical treatment; medical negligence; deliberate indifference to
medical needs; denial of visitation; overcrowding; retaliation; denial of parole; and
due process claims regarding denial of access to courts. After numerous motions,
magistrate judge recommendations, and orders, the district court ultimately granted
the defendants’ motions to dismiss based on Toenniges’s failure to exhaust the prison
grievance process and to state a claim. On appeal, Toenniges argues, among other
things, that the district court erred in refusing to grant his motions to amend his
complaint pursuant to Fed.R.Civ.P. 15(a). After careful review, we vacate and
remand for further proceedings consistent with this opinion.
We review a district court’s denial of leave to amend a complaint for abuse of
discretion. Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999).
Indeed, we will only reverse a district court’s denial of a motion to amend when the
district court has clearly abused its discretion. Smith v. Sch. Bd. of Orange Cnty.,
487 F.3d 1361, 1366 (11th Cir. 2007).
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A party may amend its pleading once as a matter of course within 21 days after
serving it, or if the pleading is one to which a responsive pleading is required, 21 days
after service of a responsive pleading or 21 days after service of a motion under Rule
12(b), (e), or (f), whichever is earlier. Fed.R.Civ.P. 15(a)(1)(A),(B); see also Brown
v. Johnson, 387 F.3d 1344, 1349 (11th Cir. 2004) (holding that district court abused
its discretion when it denied plaintiff’s motion to amend when plaintiff filed his
motion before the district court dismissed his complaint and before any responsive
pleadings were filed). A plaintiff has a right to amend a complaint once as a matter
of course so long as no responsive pleading has been filed. Coventry First, LLC v.
McCarty, 605 F.3d 865, 869 (11th Cir. 2010). In Coventry First, we held that a
plaintiff waives the right to amend his complaint as a matter of course if he chooses
to file a motion to amend instead of filing the amended complaint as a matter of
course. Id. at 869-70. However, we distinguished Brown because the plaintiff in
Brown was pro se. Id. at 870 n.2. Applying this distinction here, Toenniges,
proceeding pro se, did not waive his right to amend as a matter of course merely
because he filed a motion to amend instead of amending as a matter of course.
Nothing in the Prison Litigation Reform Act repeals Rule 15(a). Brown, 387
F.3d at 1349. Moreover, “[w]hen the plaintiff has the right to file an amended
complaint as a matter of course . . . the plain language of Rule 15(a) shows that the
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court lacks the discretion to reject the amended complaint based on its alleged
futility.” Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1292 n.6
(11th Cir. 2007). Rule 15(a) governs amendment of pleadings before judgment is
entered. Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010).
Here, the district court clearly abused its discretion in not permitting Toenniges
to amend his complaint as a matter of course, as he was entitled to do so under Rule
15(a). See Fed.R.Civ.P. 15(a)(1)(B); Smith, 487 F.3d at 1366. The record shows that
Toenniges filed two motions for leave to amend his complaint -- the first motion was
filed on January 15, 2010, and the second was filed on February 26, 2010. At the
time Toenniges filed his motions to amend, no responsive pleadings had been filed.
See Coventry First, 605 F.3d at 869. Indeed, the pre-answer motion to dismiss by
seven defendants was not filed until May 26, 2010. Further, final judgment was not
entered until April 26, 2012. See Jacobs, 626 F.3d at 1344.
The magistrate judge, in denying Toenniges’s initial motion for leave to amend,
found that Toenniges needed to attach his proposed amended motion so that the
magistrate judge could consider its merits. Because Toenniges had the right to amend
as a matter of course, however, the merits of his amendment, at that stage, were
irrelevant. See Williams, 477 F.3d at 1292 n.6. The magistrate judge further
recommended denial of Toenniges’s second motion to amend based on the finding
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that the defendants’ later-filed motion to dismiss should be resolved before
determining whether to grant Toenniges’s motion to amend. But Toenniges’s
motions to amend were filed months before the seven defendants filed their motion
to dismiss.
In adopting the magistrate judge’s recommendation, the district court merely
stated that “the Docket reflects that none of those conditions [of Rule 15(a)(1)] are
satisfied.” As we’ve detailed above, this conclusion was unsupported. See Jacobs,
626 F.3d at 1344; Coventry First, 605 F.3d at 869; Brown, 387 F.3d at 1349.
Therefore, Toenniges retained the right to amend his complaint as a matter of course
under Fed.R.Civ.P. 15(a)(1)(B). Because the district court clearly abused its
discretion in denying Toenniges’s motion to amend as a matter of course, we vacate
the district court’s order denying Toenniges’s motion to amend, and remand to allow
Toenniges to file an amended complaint. See Smith, 487 F.3d at 1366; Burger King
Corp., 169 F.3d at 1315.
Contrary to the appellees’ assertions, the failure to allow Toenniges to amend
his complaint was not harmless error. The appellees contend that Toenniges’s
amended complaint would have been dismissed as futile, even if the district court had
permitted the amendment. However, as we’ve said, when the plaintiff has the right
to file an amended complaint as a matter of course, the district court lacks the
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discretion to reject the amended complaint based on its alleged futility. Williams, 477
F.3d at 1292 n.6. Moreover, because we’ve concluded that the district court should
have allowed Toenniges to amend his complaint, we need not address whether
Toenniges properly exhausted his administrative remedies or failed to state a claim
for relief under his recast complaint. See Bryant v. Dupree, 252 F.3d 1161, 1165 n.3
(11th Cir. 2001) (noting that we need not consider whether the plaintiff’s complaint
satisfied pleading requirements when the district court should have allowed the
plaintiff to amend his complaint as a matter of course).
VACATED AND REMANDED.
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