            Case: 17-11278   Date Filed: 03/27/2018   Page: 1 of 4


                                                         [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                              No. 17-11278
                          Non-Argument Calendar
                        ________________________

                  D.C. Docket No. 6:16-cv-00045-JRH-RSB



STEPHEN RAY HOKE,

                                                           Plaintiff - Appellant,

                                   versus


MR. LYLE,
Chaplain,
WARDEN,
TIFFANY HENRY,
Mailroom Supervisor,

                                                        Defendants - Appellees,


GOVERNOR, et al.,

                                                                     Defendants.
              Case: 17-11278     Date Filed: 03/27/2018    Page: 2 of 4


                           ________________________

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

                                  (March 27, 2018)

Before WILSON, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM:

      Stephen Hoke, a Georgia prisoner, appeals the district court’s dismissal of

his pro se civil rights suit, brought pursuant to 42 U.S.C. § 1983 and the Religious

Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1(a),

challenging the return of a Bible study course and religious calendar to the senders

after he failed to submit a “prior package” request as required by prison policy.

The district court granted defendants’ motions to dismiss without expressly

addressing Hoke’s request for leave to amend his complaint. On appeal, Hoke

argues, among other things, that the district court abused its discretion by not

addressing, and thereby implicitly denying, his request for leave to amend. 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. Smith v. Sch. Bd. of Orange Cnty., 487 F.3d 1361, 1366 (11th Cir.

2007). Where (as here) a district court has not explicitly denied a pending motion,


                                          2
               Case: 17-11278     Date Filed: 03/27/2018    Page: 3 of 4


the subsequent entry of final judgment constitutes an implicit denial of that motion.

Addington v. Farmer’s Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir. Unit A

July 1981).

      A party may amend his 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,

within 21 days after service of a responsive pleading or a motion under Rule 12(b),

(e), or (f), whichever is earlier. Fed. R. Civ. P. 15(a)(1)(A),(B). Ordinarily, a

plaintiff waives his right to amend his complaint as a matter of course when his

counsel files an unnecessary motion for leave to amend. Coventry First, LLC v.

McCarty, 605 F.3d 865, 869–70 (11th Cir. 2010). However, a pro se plaintiff

(unlike a counseled party) does not waive his right to amend as a matter of course

by seeking the court’s leave to amend. See id. at 870 n.2.

      Under ordinary circumstances, a district court may properly deny leave to

amend where amendment would be futile. Corsello v. Lincare, Inc., 428 F.3d

1008, 1014 (11th Cir. 2005). A proposed amendment is futile when the complaint

as amended would not survive a Rule 12(b)(6) motion to dismiss. See Burger King

Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999). However, “[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 [district] court lacks the discretion to




                                           3
                 Case: 17-11278        Date Filed: 03/27/2018        Page: 4 of 4


reject the amended complaint based on its alleged futility.” Williams v. Bd. of

Regents of Univ. Sys. of Georgia, 477 F.3d 1282, 1292 n. 6 (11th Cir. 2007).

       Because Hoke is a pro se litigant who had not previously amended his

complaint, and because he requested leave to amend nearly seven weeks before the

defendants filed their Rule 12(b) motion, he had the right to amend his complaint

as a matter of course. See Fed. R. Civ. P. 15(a). Therefore, the district court

abused its discretion by failing to grant Hoke leave to amend his complaint as a

matter of course, as he was entitled to do under Rule 15(a). 1

       Accordingly, we vacate the dismissal of Hoke’s suit and remand to the

district court for further proceedings consistent with this opinion. In light of this

conclusion, we needn’t address Hoke’s remaining claims.

       VACATED AND REMANDED.




1
  Contrary to the defendants’ assertions, the failure to allow Hoke to amend his complaint was
not harmless error. Because Hoke had the right to file an amended complaint as a matter of
course, the district court lacked the discretion to deny leave to amend based on the alleged
futility of the proposed amendments. See Williams, 477 F.3d at 1292 (rejecting the argument
that the district court’s denial of leave to amend was harmless error due to the alleged futility of
the proposed amendments because the court “lacked the discretion to make that determination at
that time”).
                                                 4
