                    Case: 12-12895          Date Filed: 12/26/2012   Page: 1 of 6

                                                                        [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-12895
                                        Non-Argument Calendar
                                      ________________________

                            D.C. Docket No. 1:09-cv-00165-WLS-TQL



DONALD W. TOENNIGES,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellant,

                                                versus

GEORGIA DEPARTMENT OF CORRECTIONS,
WARDEN, AUTRY STATE PRISON,
MARTY ALLEN,
KEITH JONES,
DR. SAUD, et al.,


llllllllllllllllllllllllllllllllllllllll                               Defendants-Appellees.

                                     ________________________

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

                                           (December 26, 2012)
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Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

      Donald Toenniges, a former Georgia state prisoner, appeals pro se the district

court’s grant of the defendants’ motion to dismiss Toenniges’s civil rights action,

brought under 42 U.S.C. § 1983. Toenniges’s complaint included claims of the denial

and/or delay of medical treatment; medical negligence; deliberate indifference to

medical needs; denial of visitation; overcrowding; retaliation; denial of parole; and

due process claims regarding denial of access to courts. After numerous motions,

magistrate judge recommendations, and orders, the district court ultimately granted

the defendants’ motions to dismiss based on Toenniges’s failure to exhaust the prison

grievance process and to state a claim. On appeal, Toenniges argues, among other

things, that the district court erred in refusing to grant his motions to amend his

complaint pursuant to Fed.R.Civ.P. 15(a). After careful review, we vacate and

remand for further proceedings consistent with this opinion.

      We review a district court’s denial of leave to amend a complaint for abuse of

discretion. Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999).

Indeed, we will only reverse a district court’s denial of a motion to amend when the

district court has clearly abused its discretion. Smith v. Sch. Bd. of Orange Cnty.,

487 F.3d 1361, 1366 (11th Cir. 2007).

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

serving it, or if the pleading is one to which a responsive pleading is required, 21 days

after service of a responsive pleading or 21 days after service of a motion under Rule

12(b), (e), or (f), whichever is earlier. Fed.R.Civ.P. 15(a)(1)(A),(B); see also Brown

v. Johnson, 387 F.3d 1344, 1349 (11th Cir. 2004) (holding that district court abused

its discretion when it denied plaintiff’s motion to amend when plaintiff filed his

motion before the district court dismissed his complaint and before any responsive

pleadings were filed). A plaintiff has a right to amend a complaint once as a matter

of course so long as no responsive pleading has been filed. Coventry First, LLC v.

McCarty, 605 F.3d 865, 869 (11th Cir. 2010). In Coventry First, we held that a

plaintiff waives the right to amend his complaint as a matter of course if he chooses

to file a motion to amend instead of filing the amended complaint as a matter of

course. Id. at 869-70. However, we distinguished Brown because the plaintiff in

Brown was pro se. Id. at 870 n.2. Applying this distinction here, Toenniges,

proceeding pro se, did not waive his right to amend as a matter of course merely

because he filed a motion to amend instead of amending as a matter of course.

      Nothing in the Prison Litigation Reform Act repeals Rule 15(a). Brown, 387

F.3d at 1349. Moreover, “[w]hen the plaintiff has the right to file an amended

complaint as a matter of course . . . the plain language of Rule 15(a) shows that the

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court lacks the discretion to reject the amended complaint based on its alleged

futility.” Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1292 n.6

(11th Cir. 2007). Rule 15(a) governs amendment of pleadings before judgment is

entered. Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010).

      Here, the district court clearly abused its discretion in not permitting Toenniges

to amend his complaint as a matter of course, as he was entitled to do so under Rule

15(a). See Fed.R.Civ.P. 15(a)(1)(B); Smith, 487 F.3d at 1366. The record shows that

Toenniges filed two motions for leave to amend his complaint -- the first motion was

filed on January 15, 2010, and the second was filed on February 26, 2010. At the

time Toenniges filed his motions to amend, no responsive pleadings had been filed.

See Coventry First, 605 F.3d at 869. Indeed, the pre-answer motion to dismiss by

seven defendants was not filed until May 26, 2010. Further, final judgment was not

entered until April 26, 2012. See Jacobs, 626 F.3d at 1344.

      The magistrate judge, in denying Toenniges’s initial motion for leave to amend,

found that Toenniges needed to attach his proposed amended motion so that the

magistrate judge could consider its merits. Because Toenniges had the right to amend

as a matter of course, however, the merits of his amendment, at that stage, were

irrelevant. See Williams, 477 F.3d at 1292 n.6. The magistrate judge further

recommended denial of Toenniges’s second motion to amend based on the finding

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that the defendants’ later-filed motion to dismiss should be resolved before

determining whether to grant Toenniges’s motion to amend. But Toenniges’s

motions to amend were filed months before the seven defendants filed their motion

to dismiss.

      In adopting the magistrate judge’s recommendation, the district court merely

stated that “the Docket reflects that none of those conditions [of Rule 15(a)(1)] are

satisfied.” As we’ve detailed above, this conclusion was unsupported. See Jacobs,

626 F.3d at 1344; Coventry First, 605 F.3d at 869; Brown, 387 F.3d at 1349.

Therefore, Toenniges retained the right to amend his complaint as a matter of course

under Fed.R.Civ.P. 15(a)(1)(B). Because the district court clearly abused its

discretion in denying Toenniges’s motion to amend as a matter of course, we vacate

the district court’s order denying Toenniges’s motion to amend, and remand to allow

Toenniges to file an amended complaint. See Smith, 487 F.3d at 1366; Burger King

Corp., 169 F.3d at 1315.

      Contrary to the appellees’ assertions, the failure to allow Toenniges to amend

his complaint was not harmless error. The appellees contend that Toenniges’s

amended complaint would have been dismissed as futile, even if the district court had

permitted the amendment. However, as we’ve said, when the plaintiff has the right

to file an amended complaint as a matter of course, the district court lacks the

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discretion to reject the amended complaint based on its alleged futility. Williams, 477

F.3d at 1292 n.6. Moreover, because we’ve concluded that the district court should

have allowed Toenniges to amend his complaint, we need not address whether

Toenniges properly exhausted his administrative remedies or failed to state a claim

for relief under his recast complaint. See Bryant v. Dupree, 252 F.3d 1161, 1165 n.3

(11th Cir. 2001) (noting that we need not consider whether the plaintiff’s complaint

satisfied pleading requirements when the district court should have allowed the

plaintiff to amend his complaint as a matter of course).

      VACATED AND REMANDED.




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