Johnson v. Russ ( 2021 )

Case: 20-30497 Document: 00516051538 Page: 1 Date Filed: 10/12/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 12, 2021
No. 20-30497
Lyle W. Cayce
Summary Calendar Clerk
Andre Johnson,
Plaintiff—Appellant,
versus
Edward Russ,
Defendant—Appellee.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:19-CV-856
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Andre Johnson, Louisiana prisoner # 375946, appeals the sua sponte
dismissal with prejudice of his 42 U.S.C. § 1983 complaint as frivolous and
for failure to state a claim. See 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii) and
1915A(b)(1). He contends, inter alia, that the district court erred by
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-30497
dismissing his claims of retaliation without first providing him an opportunity
to amend his complaint. We review the dismissal de novo. See Geiger
v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
Before dismissing a pro se litigant’s case for failure to state a claim, a
district court ordinarily must provide an opportunity to amend the complaint
to remedy the deficiencies. Brown v. Taylor, 829 F.3d 365, 370 (5th
Cir. 2016); Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994). Such notice and
opportunity are unnecessary, however, when the facts alleged are “fantastic
or delusional scenarios” or when the legal theory upon which a complaint
relies is “indisputably meritless.” Eason, 14 F.3d at 9 n.5 (internal quotation
marks and citation omitted). Further, sua sponte dismissal without notice
may be permissible “if the dismissal is without prejudice, or if the plaintiff
has alleged his best case.” Brown, 829 F.3d at 370. However, if “[w]ith
further factual development and specificity” a plaintiff’s “allegations may
pass . . . muster,” we will remand to give him “an opportunity . . . to offer a
more detailed set of factual claims.” Eason, 14 F.3d at 10.
When his pro se complaint is construed liberally, Johnson alleged,
inter alia, that Edward Russ and others acted individually and in concert to
prosecute false disciplinary complaints against him in retaliation for his
having filed administrative complaints and lawsuits regarding prison
conditions; his allegations are not fantastic or delusional, nor does he rely on
an indisputably meritless legal theory. See Morris v. Powell, 449 F.3d 682,
684-86 (5th Cir. 2006) (setting forth elements of retaliation claim); Eason, 14
F.3d at 9 n.5. The dismissal was with prejudice, and we cannot conclude that
Johnson alleged his best case. See Brown, 829 F.3d at 370.
Consequently, the judgment of dismissal is VACATED, and the case
is REMANDED for further proceedings. We express no opinion on the
merits of Johnson’s complaint. Johnson’s motions for the appointment of
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Case: 20-30497 Document: 00516051538 Page: 3 Date Filed: 10/12/2021
No. 20-30497
counsel are DENIED without prejudice to his right to request appointment
of counsel in the district court.
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