Atkins v. Propst

Case: 20-11008 Document: 00516151849 Page: 1 Date Filed: 01/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 3, 2022
No. 20-11008
Summary Calendar Lyle W. Cayce
Clerk
John Louis Atkins,
Plaintiff—Appellant,
versus
Jeffrey A. Propst,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:19-CV-166
Before Owen, Chief Judge, and Smith and Elrod, Circuit Judges.
Per Curiam:*
John Louis Atkins, Texas prisoner # 2184778, appeals the district
court’s dismissal of the amended complaint he filed pro se against his former
attorney. After granting Atkins leave to proceed in forma pauperis, the
district court sua sponte dismissed the case without prejudice for lack of
*
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opinion should not be published and is not precedent except under the limited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.
Case: 20-11008 Document: 00516151849 Page: 2 Date Filed: 01/03/2022
No. 20-11008
subject matter jurisdiction and for failure to state a claim upon which relief
may be granted. The district court also alternatively ordered that the
complaint be dismissed with prejudice for failure to state a claim upon which
relief may be granted. The court denied as moot Atkins’s motion for a
hearing under Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
Atkins argues that the district court erred by dismissing the case
without first conducting a Spears hearing or otherwise permitting him to
address the court’s concerns through a more specific pleading. Before sua
sponte dismissing a pro se litigant’s case with prejudice, a district court
ordinarily must provide an opportunity to amend the complaint to remedy
the deficiencies. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998); Eason
v. Thaler, 14 F.3d 8, 9 & n.5 (5th Cir. 1994). A dismissal without prejudice
should be treated as a dismissal with prejudice when a refiling of the claims
would be time barred by the time of the dismissal. See Berry v. CIGNA/RSI-
CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992); Murphy v. Kellar, 950 F.2d 290,
292 & n.5 (5th Cir. 1992).
Although the district court granted Atkins’s motion to file an
amended complaint shortly after the filing of his original complaint, the
amended complaint was not a meaningful opportunity for him to respond to
deficiencies because he had no notice at the time that the complaint
contained deficient allegations and was in jeopardy of dismissal. See Rodgers
v. Lancaster Police & Fire Dep’t, 819 F.3d 205, 213 (5th Cir. 2016). The
district court should have given Atkins an opportunity to further develop his
allegations before sua sponte dismissing the case. See Bazrowx, 136 F.3d at
1054; Eason, 14 F.3d at 9.
Accordingly, we vacate the judgment and remand so that Atkins may
receive such an opportunity. See Brown v. Taylor, 829 F.3d 365, 370 (5th Cir.
2016). No other limitations are placed on the matters that the district court
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No. 20-11008
may consider and decide on remand. We express no view on the merits
regarding subject matter jurisdiction or Atkins’s claims.1
VACATED and REMANDED.
1
We do not consider Atkins’s argument here that the district court judge should
have recused himself in this case, as it is raised for the first time on appeal. See Andrade v.
Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003); Clay v. Allen, 242 F.3d 679, 681 (5th Cir.
2001). Given our decision, we also do not reach Atkins’s remaining arguments challenging
the dismissal of the case.
3