           Case: 13-13761   Date Filed: 03/24/2014   Page: 1 of 7


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13761
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:12-cv-00113-LGW-JEG



ERIC WATKINS,

                                              Plaintiff - Appellant,

versus

ASSOCIATE WARDEN D. HUDSON,
in his individual capacity,

                                              Defendant - Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                              (March 24, 2014)

Before HULL, MARCUS, and JORDAN, Circuit Judges.

PER CURIAM:
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      Eric Watkins, who was formerly incarcerated at the Federal Correctional

Institution in Jesup, Georgia, and is proceeding pro se, appeals the dismissal of his

complaint, filed under Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971), for failure to state a claim upon which relief may

be granted. After review, we affirm the dismissal, but conclude that the district

court erred in failing to grant Mr. Watkins leave to amend his complaint, and thus

vacate and remand for further proceedings.

                                          I

      Mr. Watkins filed a pro se complaint under Bivens, alleging First

Amendment retaliation and Fifth Amendment due process claims against D.

Hudson, the Associate Warden at FCI Jesup. Mr. Watkins alleged that on October

29, 2009, he fell asleep while a video was being shown during FCI Jesup’s

admissions and orientation program. Associate Warden Hudson woke him up and

asked him to step outside. He then told Mr. Watkins that he needed to wake up

and act as if he were interested in the video. Mr. Watkins replied that he did not

need to wake up. According to Mr. Watkins, Associate Warden Hudson then

fabricated an incident report, charging Mr. Watkins with refusing to obey his order

to wake up and act as if he were interested in the video.

      Mr. Watkins alleged that, due to the fabricated incident report, he was

removed from the general population and placed in administrative detention in


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violation of the Fifth Amendment. He further asserted that he had a liberty interest

in remaining in the general population, and that this interest was infringed when he

was removed. Mr. Watkins also alleged that sleeping during the admissions and

orientation program was not prohibited by Bureau of Prisons rules, nor was he on

notice of any such prohibition, and, therefore, his actions did not constitute a valid

reason for his removal from the general population and subsequent placement into

administrative detention. Finally, Mr. Watkins claimed that his First Amendment

right to free speech was violated when Associate Warden Hudson retaliated against

him and ordered him to be placed in administrative detention.

      In accordance with 28 U.S.C. § 1915A, the district court conducted a

preliminary screening and dismissed Mr. Watkins’ First Amendment retaliation

claim for failure to state a claim. The district court allowed Mr. Watkins’ Fifth

Amendment claim to proceed because it found that Mr. Watkins’ allegations

arguably stated a claim for violation of his right to due process. It ordered service

of the complaint on Associate Warden Hudson, who responded by filing a motion

to dismiss under Federal Rule of Civil Procedure 12(b)(6). The district court

ultimately granted the motion to dismiss, concluding that Mr. Watkins made no




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allegations that he suffered an atypical and significant hardship in being removed

from the prison’s general population and being placed in administrative detention. 1

                                               II

       We first address Associate Warden Hudson’s argument that we lack

jurisdiction to review the district court’s dismissal of the First Amendment

retaliation claim because Mr. Watkins’ notice of appeal does not specifically list

the district court’s order dismissing that claim. We are not persuaded by the

argument.

       The notice of appeal states that Mr. Watkins is appealing from the final

judgment issued on June 17, 2013. “[T]he appeal from a final judgment draws in

question all prior non-final orders and rulings which produced the judgment.”

Barfield v. Brierton, 883 F.2d 923, 930 (11th Cir. 1989). As a result, and because

we construe pro se filings liberally, see Bellizia v. Fla. Dep't of Corr., 614 F.3d

1326, 1329 (11th Cir. 2010), we have jurisdiction to review Mr. Watkins’

challenge to the district court’s dismissal of the First Amendment retaliation claim.

                                               III

       Under § 1915A, a district court shall review, as soon as possible, a

prisoner’s complaint in a civil action against a government entity or employee of a
       1
          Because the dismissal orders did not state that they were without prejudice, the
dismissal was by law with prejudice. See Fed. R. Civ. P. 41(b) (providing that any dismissal
except for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 operates
“as an adjudication on the merits” unless “the dismissal order states otherwise”).

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governmental entity. See 28 U.S.C. § 1915A(a). The district court must dismiss

the complaint if it is “frivolous, malicious, or fails to state a claim upon which

relief may be granted.” 28 U.S.C. § 1915A(b)(1).

      A dismissal under § 1915A is governed by the same standards as a dismissal

under Rule 12(b)(6). See Jones v. Bock, 549 U.S. 199, 215-16 (2007); Leal v. Ga.

Dep't of Corrs., 254 F.3d 1276, 1278-79 (11th Cir. 2001). That is, although the

complaint need not provide detailed factual allegations, it must contain “sufficient

factual matter” to state a claim that is “plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). Accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007).

      Even construing his pro se brief liberally, Mr. Watkins admits that the

allegations in his complaint failed to state a claim for First Amendment retaliation

or for a Fifth Amendment due process violation under Bivens. Thus, we affirm the

dismissal of those claims, but address Mr. Watkins’ contention that the district

court erred by dismissing his claims with prejudice and without first granting him

leave to amend.

      We review a district court’s decision to grant or deny leave to amend only

for an abuse of discretion. See Forbus v. Sears Roebuck & Co., 30 F.3d 1402,

1404 (11th Cir. 1994).     The district court erred by dismissing the complaint

without affording Mr. Watkins an opportunity to amend. When it appears that a


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pro se plaintiff’s complaint, if more carefully drafted, might state a claim, the

district court should give the pro se plaintiff an opportunity to amend his complaint

instead of dismissing it. See Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991),

overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541,

542 (11th Cir. 2002) (en banc). 2

       A court must therefore afford a plaintiff an opportunity to amend his pro se

complaint before dismissing with prejudice unless the plaintiff expresses a desire

not to amend or an amendment would be futile. See id. at 1112. Here, Mr.

Watkins never expressed a desire not to amend his complaint. Indeed, in his

objection to the magistrate’s report recommending dismissal of the Fifth

Amendment claim, Mr. Watkins included additional factual allegations with

respect to the purported atypical and significant hardship he encountered in

administrative detention.         Without commenting on the sufficiency of those

allegations, we cannot say with certainty that allowing Mr. Watkins to amend his

complaint would be futile. Nor can we say that additional allegations could not

demonstrate that Associate Warden Hudson’s purported decision to place Mr.


       2
          In Wagner, we overruled Bank with respect to counseled plaintiffs who failed to request
leave to amend. See Wagner, 314 F.3d at 542 (“A district court is not required to grant a plaintiff
leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never
filed a motion to amend nor requested leave to amend before the district court.”). But pro se
litigants are held to a less stringent standard, see Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998), and our decision in Wagner did not disturb our decision in Bank with
respect to pro se litigants. See Wagner, 314 F.3d at 542 n.1 (“In this opinion, we decide and
intimate nothing about a party proceeding pro se.”).
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Watkins in administrative detention was in retaliation for Mr. Watkins engaging in

protected speech. Thus, we conclude that the district court erred in dismissing Mr.

Watkins’ First Amendment retaliation and Fifth Amendment due process claims

without granting him leave to amend.

                                        IV

      We affirm the district court’s dismissal of Mr. Watkins’ First and Fifth

Amendment claims, but we vacate and remand the dismissal with prejudice so that

Mr. Watkins may be allowed to amend his complaint.

      AFFIRMED IN PART, VACATED IN PART, and REMANDED.




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