                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                      TENTH CIRCUIT                       November 29, 2011

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

SHAWN NELSON STAATS,

             Plaintiff - Appellant,

v.                                                         No. 11-6172
                                                    (D.C. No. 5:11-CV-00417-D)
ROBIN COBB, records department                             (W.D. Okla.)
JCCC; WARDEN OF JAMES
CRABTREE CORRCTIONAL CENTER;
MIKE ROGERS, Warden's manager of
James Crabtree Correctional Center;
BECKY GUFFY, Administrator, sentence
administration and offender records;
JUSTIN JONES, Director of Department
of Corrections,

              Defendants - Appellees.


                              ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.




       * After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
App. P. 32.1 and 10th Cir. R. 32.1.
       Petitioner-Appellant Shawn Staats, a former Oklahoma state prisoner appearing

pro se,1 appeals from the district court’s sua sponte dismissal of his 42 U.S.C. § 1983

complaint against various employees of the James Crabtree Correctional Center

(“JCCC”). Mr. Staats argues that the JCCC improperly calculated his release date,

thereby imprisoning him for approximately ten months beyond his proper release date.

He contends that this error violated his Fourth, Eighth, and Fourteenth Amendment

constitutional rights.

       On April 15, 2011, Mr. Staats filed a §1983 complaint against the JCCC consisting

of a list of seven documents, the documents themselves, and no factual allegations. On

April 26, 2011, the United States District Court for the Western District of Oklahoma

dismissed Mr. Staats’s complaint without prejudice for failure to meet the pleading

requirements of Rule 8(a) of the Federal Rules of Civil Procedure. See Staats v. Cobb,

No. CIV-11-417-D, at 2 (W.D. Okla. Apr. 26, 2011) (unpublished order). The court did

not issue a separate judgment.

       On June 20, 2011, Mr. Staats filed a second complaint containing factual

allegations along with the seven supplemental documents. On June 21, 2011, the district

court ordered that the second complaint and the supplemental materials be stricken.

       1
         Because Mr. Staats is proceeding pro se, we construe his pleadings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584 F.3d
972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments liberally;
this rule of liberal construction stops, however, at the point at which we begin to serve as
his advocate.”).


                                            -2-
Staats v. Cobb, No. CIV-11-417-D (W.D. Okla. June 21, 2011) (unpublished order). The

court stated: “[Mr. Staats’s] submissions are STRICKEN because this case was closed

on April 26, 2011 as a result of the Court’s Order dismissing this case without prejudice

for the filing of a new lawsuit.” Id. The court noted that Mr. Staats’s second complaint

was “erroneously docketed as an amended complaint” because “the Court’s [first] Order

did not authorize the filing of an amended complaint.” Id. at n.1. The court did not

evaluate whether the second complaint satisfied Rule 8(a)’s pleading requirements. Mr.

Staats filed a notice of appeal on July 5, 2011.2

       Construing Mr. Staats’s arguments on appeal liberally, we understand them to

include the contention that when the district court dismissed his complaint without

prejudice on April 26, 2011, it erred by not granting him leave to amend. See Travis v.

Park City Mun. Corp., 565 F.3d 1252, 1254 (10th Cir. 2009) (“Because [the petitioner]

proceeds pro se, we construe his pleadings and briefs liberally.”).

       We review a district court’s failure to grant leave to amend for abuse of discretion.

See Cohen v. Longshore, 621 F.3d 1311, 1315 (10th Cir. 2010). In general, “the grant or

denial of an opportunity to amend is within the discretion of the District Court.” Foman

       2
         A notice of appeal must normally be filed within 30 days of the entry of the order
or judgment being appealed. Fed. R. App. P. 4(a)(1)(A). The district court’s dismissal
order dated April 26, 2011, suggests that Mr. Staats’s notice of appeal should have been
filed on or before May 26, 2011. However, because the district court did not enter a
separate final judgment as required under Federal Rule of Civil Procedure 58, Mr. Staats
had 150 days from the dismissal order to file his notice of appeal. Fed. R. App. P.
4(a)(7)(A)(ii). Thus, Mr. Staats’s notice of appeal, filed on July 5, 2011, was timely.


                                             -3-
v. Davis, 371 U.S. 178, 182 (1962). But in exercising this discretion, the court must heed

Rule 15(a)’s direction that leave to amend “shall be freely given when justice so

requires.” Fed. R. Civ. P. 15(a); see also Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir.

2001) (“We reiterate that the district court should allow a plaintiff an opportunity to cure

technical errors or otherwise amend the complaint when doing so would yield a

meritorious claim.”); Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991) (“[P]ro

se litigants are to be given reasonable opportunity to remedy the defects in their

pleadings.”); Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (“Fed. R. Civ. P.

15 provides that leave to amend ‘shall be freely given.’ This is especially true here

because [the plaintiff] is proceeding pro se.”). Without apparent grounds to deny leave—

such as undue delay, repeated failure to cure deficiencies in the pleadings, or undue

prejudice to the opposing party—the court should have “afforded [the plaintiff] an

opportunity to test his claim on the merits.” Foman, 371 U.S. at 182.

       We have previously explained that a court “should dismiss with leave to amend . .

. if it is at all possible that the party against whom the dismissal is directed can correct the

defect in the pleading or state a claim for relief.” Brever v. Rockwell Int’l Corp., 40 F.3d

1119, 1131 (10th Cir. 1994) (quoting 6 C. Wright & A. Miller, Federal Practice and

Procedure, § 1483, at 587 (2d ed. 1990)); see also Murray v. Albany County Bd. of

County Comm’rs, 2000 U.S. App. LEXIS 7202, at *5-6 (10th Cir. Apr. 20, 2000)




                                              -4-
(unpublished)3 (“A district court may dismiss a pro se complaint sua sponte without

permitting the plaintiff to amend the complaint only if it is clear that the amendment

would be futile.”). Thus, “it will generally be an abuse of discretion to deny [a pro se

plaintiff] leave to amend when dismissing a nonfrivolous original complaint on the sole

ground that it does not constitute the short and plain statement required by Rule 8.”

Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).

       By dismissing Mr. Staat’s original complaint without prejudice, the district court

implicitly indicated that Mr. Staats may be able to overcome the Rule 8(a) defect in his

original complaint. The “without prejudice” dismissal would allow Mr. Staats to file a

new action, which is functionally similar to his filing an amended complaint. But filing a

new action would require new service of process and new filing fees or a new application

to proceed in forma pauperis. It also might present statute of limitations issues. When

Mr. Staats’s complaint was dismissed, no responsive pleading or motion to dismiss had

been filed and no hearing had been held. Mr. Staats could have amended his original

complaint as a matter of course under Rule 15(a)(1) up to entry of the dismissal order, but

he had no reason to request leave to amend because he had no notice that his complaint

was deficient.

       Under these circumstances, and because “it is possible that [Mr. Staats] . . . can

correct the defect in [his complaint],” the district court should have dismissed his original

       3
        Unpublished opinions lack precedential value but may be cited for their
persuasive value. See Fed. R. App. P. 32.1, 10th Cir. R. 32.1.

                                             -5-
complaint with leave to amend. See Brever, 40 F.3d at 1131. Failing to do so was an

abuse of discretion. We therefore REMAND to the district court with instructions to

allow Mr. Staats to amend his complaint. Mr. Staats’s motion to proceed in forma

pauperis is GRANTED.

                                        ENTERED FOR THE COURT



                                        Scott M. Matheson, Jr.
                                        Circuit Judge




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