Spring v. University of Texas Medical Branch , 84 F. App'x 452 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 7, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40549
Summary Calendar
RAYMOND DUANE SPRING,
Plaintiff-Appellant,
versus
THE UNIVERSITY OF TEXAS MEDICAL BRANCH, Galveston;
JOHN D. STOBO; A. BABBILI; UNIDENTIFIED CHARIAN, Doctor;
UNIDENTIFIED JOYNER, Doctor,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
No. 6:02-CV-592
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Raymond Spring appeals from the dismissal of his 42 U.S.C.
§ 1983 civil rights suit alleging deliberate indifference in
providing medical care. Following a hearing performed pursuant to
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), a magistrate
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-40549
-2-
judge recommended dismissing the claims as frivolous and for fail-
ure to state a claim. In his objections, Spring argued that his
claims are meritorious and that he had been denied the right to
amend his complaint to include additional defendants.
The district court denied his objections, ruling that the at-
tempted addition of new defendants was presented for the first time
in the objections to the report of the magistrate judge and that
Spring had failed properly to allege exhaustion. The record re-
veals, however, that twice during the Spears hearing, Spring had
mentioned his desire to amend. Further, the requested amendment
could not have been denied for failure properly to allege exhaus-
tion until Spring had been afforded an opportunity to make the
requisite showing. See Miller v. Stanmore, 636 F.2d 986, 991 (5th
Cir. Unit A Feb. 1981). Because the putative amendment would have
been the amendment filed by Spring in this case, it should have
been permitted as a matter of course. See FED. R. CIV. P. 15(a).
Although we express no opinion as to the merit of the existing
allegations, it is premature to affirm the dismissal before Spring
is given the opportunity to amend. Accordingly, we VACATE and
REMAND for proceedings consistent with this opinion.