                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-16514                ELEVENTH CIRCUIT
                                                            AUGUST 16, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                               CLERK

                   D. C. Docket No. 09-22905-CV-JAL

THOMAS B. STRINGER,

                                                           Plaintiff-Appellant,

                                  versus

GATO B. JACKSON,
MS. L. HARRIS,
MIAMI-DADE CORRECTIONS &
REHABILITATION DEPARTMENT,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                             (August 16, 2010)

Before BARKETT, HULL and MARCUS, Circuit Judges.

PER CURIAM:
      Thomas B. Stringer, a pro se prisoner, appeals the district court’s dismissal

of his 42 U.S.C. § 1983 complaint for failure to state a claim for relief pursuant to

28 U.S.C. § 1915(e)(2)(B)(ii). On appeal, Stringer argues that the district court

abused its discretion when it denied his request to amend his complaint to include

retaliation facts because such an amendment would not have been futile. After

careful review, we vacate and remand.

      We review the denial of a motion to amend a complaint for abuse of

discretion, but review the underlying legal conclusion of whether a particular

amendment to the complaint would have been futile de novo. Corsello v. Lincare,

Inc., 428 F.3d 1008, 1012 (11th Cir. 2005). We hold pro se pleadings to a less

stringent standard than pleadings drafted by attorneys and, therefore, will liberally

construe those pleadings. Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008).

      A district court may dismiss a complaint if the facts as pled do not state a

claim for relief that is plausible on its face. Sinaltrainal v. Coca-Cola Co., 578

F.3d 1252, 1260 (11th Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. __, 129 S.Ct.

1937, 1950 (2009)).     Although a complaint need not contain detailed factual

allegations, it must contain “more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Id. at 1261 (quoting Iqbal, 129 S.Ct. at 1949).




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      A party may amend its pleading as a matter of course within 21 days after

serving it, or 21 days after service of a responsive pleading.         Fed.R.Civ.P.

15(a)(1)(A)-(B). “In all other cases, a party may amend its pleading only with the

opposing party’s written consent or the court’s leave. The court should freely give

leave when justice so requires.” Fed.R.Civ.P. 15(a)(2).   If the underlying facts or

circumstances relied on by plaintiff may be a proper subject of relief, leave to

amend “should be freely given.” Hall v. United Ins. Co. of Am., 367 F.3d 1255,

1262 (11th Cir. 2004).    However, a district court may properly deny leave to

amend under Rule 15(a) if such amendment “would be futile.” Id. at 1262-63.

Denial of leave to amend “is justified by futility when the complaint as amended is

still subject to dismissal.” Id. at 1263. Additionally, the Prison Litigation Reform

Act, 28 U.S.C. § 1915, does not preclude a district court from granting a motion to

amend under Rule 15(a).      Brown v. Johnson, 387 F.3d 1344, 1349 (11th Cir.

2004). In Brown, we held that Brown had the right to amend his complaint under

Rule 15(a) because he had filed his motion to amend before the district court had

dismissed his complaint and before any responsive pleadings had been filed. Id.

      Section 1983 of Title 42 of the U.S. Code provides a cause of action against

any person acting under the color of state law for deprivations of any right secured

by the Constitution. 42 U.S.C. § 1983. We have held that “First Amendment



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rights to free speech and to petition the government for a redress of grievances are

violated when a prisoner is punished for filing a grievance concerning the

conditions of his imprisonment.” Boxer X v. Harris, 437 F.3d 1107, 1112 (11th

Cir. 2006).   In Boxer X, the district court dismissed the appellant’s § 1983

complaint, in part, for failure to state a claim. Id. at 1109. We held that the

appellant had expressly claimed that he had been punished for complaining

through the established grievance system about his treatment by one of the prison

guards. Id. at 1112. We noted that the appellant had first presented these facts in

his objections to the magistrate’s R&R. Id. at 1112 n.4. We held that the district

court should have allowed the appellant to incorporate his retaliation claim because

the assertion was sufficient to state a claim under § 1983, based on a liberal

construction. Id. at 1112.

      In this case, the district court had not yet dismissed his case and no

responsive pleading had been filed.     Thus, Stringer had the right to amend his

complaint under Rule 15(a). See Brown, 387 F.3d at 1349.

      Moreover, as the record shows, the magistrate judge recommended that the

district court dismiss Stringer’s retaliation claim because Stringer had raised no

facts to state a claim for retaliation; indeed, Stringer had merely noted “retaliation”

in his complaint. However, after the magistrate judge found that Stringer failed to



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raise facts for retaliation, Stringer raised those facts in his objections to the R&R.

Specifically, Stringer asserted that, after filing a grievance with the prison

concerning the loss of money from an incorrect commissary order, the defendants

retaliated against him by “improperly transferring him to another ‘much harsher

condition’ jail, without due process, without any incident or disciplinary reasons”

and continued to deprive him of food, legal access, and materials. Based on a

liberal construction of Stringer’s assertions, he did allege a claim of First

Amendment retaliation in connection with the grievances he filed. See Boxer X,

437 F.3d at 1112.

      Therefore, the district court should have allowed Stringer to amend his

complaint as a matter of course and because such an amendment would not have

been futile. See id.; see Hall, 367 F.3d at 1262-63; see Fed.R.Civ.P. 15(a); Brown,

387 F.3d at 1349. Accordingly, the district court abused its discretion by denying

Stringer leave to amend his complaint.

      VACATED and REMANDED.




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