                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                     FILED
                          ________________________         U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 January 6, 2009
                                 No. 08-10391                 THOMAS K. KAHN
                             Non-Argument Calendar                CLERK
                           ________________________

                      D. C. Docket No. 06-00172-CV-WLS-1

MICHAEL DAVID DENNEY,


                                                              Plaintiff-Appellant,

                                      versus

CYNTHIA NELSON,
Warden,
JOHN DOES,
C.E.R.T. Officers at Autry State Prison,


                                                            Defendants-Appellees.

                           ________________________

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

                                (January 6, 2009)

Before BLACK, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:
      Michael David Denney appeals the dismissal of his complaint that Cynthia

Nelson, the warden of Autry State Prison, and Nelson’s employees denied Denney

his right of access to the courts when they confiscated Denney’s legal materials.

42 U.S.C. § 1983. We vacate in part, remand in part, and affirm in part.

                                 I. BACKGROUND

      Michael David Denney is a Georgia state prisoner who was formerly

incarcerated at Autry State Prison. On August 4, 2006, four unknown correctional

officers who worked on an emergency response team searched Denney’s cell and

confiscated Denney’s personal property, including legal research materials, key

pieces of evidence, pleadings from his state criminal cases, and a federal petition

for a writ of habeas corpus. In December 2006, Denney filed a complaint against

Warden Nelson and four unnamed correction employees and alleged that the

confiscation deprived him of his right of access to the courts in violation of the

First and Fourteenth Amendments.

      The district court ordered Denney to supplement his complaint with

information about which legal actions the confiscation affected. Denney

complained that the employees confiscated exculpatory evidence in his state

criminal case, records of a federal habeas petition, copies of an application to file a

second or successive habeas petition, and pleadings and documents relevant to a



                                           2
federal case and a federal appeal. Nelson moved to dismiss Denney’s complaint

for failure to state a claim and for failure to exhaust administrative remedies.

Nelson argued that Denney’s complaint failed to state a claim because Denney

alleged no legal action that was hindered by the confiscation. Nelson presented

evidence that the litigation to which Denney referred had been resolved and that

Denney had no other pending litigation.

      While Nelson’s motion was pending, Denney moved to compel Nelson to

answer interrogatories and a document request. Nelson moved for a protective

order and a stay of discovery pending resolution of the motion to dismiss, and

Denney requested a hearing on the motion for a protective order and stay. Denney

also requested leave to supplement his complaint with evidence that he had

exhausted his administrative remedies, and Denney sought discovery and a hearing

or pretrial conference.

      The magistrate judge recommended that the district court grant Nelson’s

motion to dismiss because Denney had neither challenged Nelson’s argument that

Denney had no pending litigation when his materials were confiscated nor proved

that the confiscation prevented him from timely pursuing other litigation. The

magistrate judge denied the other pending motions as moot. Denney objected to

the recommendation of the magistrate judge. Denney argued that the confiscation



                                           3
deprived him of materials he needed to “attack his sentences,” he had a pending

state habeas petition, and his request for a new trial had been denied because the

exculpatory evidence he needed to support it had been confiscated. Denney also

objected to the denial of his motion to compel discovery and request for a hearing.

         The district court accepted the recommendation of the magistrate judge. The

district court determined that the litigation to which Denney referred “w[as]

concluded prior to the confiscation of his legal materials,” and that Denney failed

to allege that he suffered an actual injury. Denney filed a motion for

reconsideration and argued that he had a pending state court case and appeal, the

district court erred when it denied him discovery and leave to amend his complaint,

and he supported his allegations with facts and evidence. Denney appealed to this

Court.

         The district court later denied his motion for reconsideration and gave two

reasons for denying Denney leave to amend his complaint. First, the district court

stated that it denied Denney leave because Denney made his request after Nelson

had moved to dismiss, and the district court considered Nelson’s motion a

responsive pleading. Second, the district court stated that it denied leave because

the amendment Denney sought, the inclusion of evidence that he exhausted his

administrative remedies, would not have affected the decision to dismiss the



                                            4
complaint.

                         II. STANDARDS OF REVIEW

      We review de novo the dismissal of a complaint for failure to state a claim,

and we accept the allegations in the complaint as true and construe them in the

light most favorable to the plaintiff. White v. Lemacks, 183 F.3d 1253, 1255 (11th

Cir. 1999). We review for abuse of discretion a denial of a motion to amend a

complaint, Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001), a denial of a

motion to compel discovery, Holloman v. Mail-Well Corp., 443 F.3d 832, 837

(11th Cir. 2006), and a decision to rule on a motion to dismiss without an

evidentiary hearing, Sunseri v. Macro Cellular Partners, 412 F.3d 1247, 1250 (11th

Cir. 2005).

                                 III. DISCUSSION

      Denney argues that his complaint stated a valid claim for denial of access to

the courts, and the district court abused its discretion when it denied his motion for

leave to amend his complaint, his motion to compel discovery, and his request for a

hearing. Denney’s first two arguments are meritorious, but his third argument

fails. We discuss each argument in turn.

      The district court erred when it dismissed Denney’s complaint because

Denney adequately alleged an injury to his right of access to the courts. Prisoners



                                           5
have a right to access to the courts under the Fourteenth Amendment. Wilson v.

Blankenship, 163 F.3d 1284, 1290 (11th Cir. 1998). “The doctrine of standing

requires that an inmate alleging a violation of the right of access to the courts must

show an actual injury” to that right. Bass v. Singletary, 143 F.3d 1442, 1445 (11th

Cir. 1998) (citing Lewis v. Casey, 518 U.S. 343, 346, 349–51, 116 S. Ct. 2174,

2177, 2179–80 (1996)). An inmate must prove that the defendants’ actions

hindered or frustrated his efforts to pursue a non-frivolous direct criminal appeal,

habeas petition, or civil rights action. Lewis, 518 U.S. at 354, 116 S. Ct. at

2181–82. Examples of actual injury include “missing filing deadlines or being

prevented from presenting claims.” Wilson, 163 F.3d at 1290 n.10.

      Denney established that the confiscation of his legal papers caused him

actual injury. Denny alleged that he intended but was unable to file a timely

habeas petition because he had been denied access to relevant legal materials.

Denney’s state conviction became final on March 1, 2006, and he had until March

1, 2007, to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). Denney’s legal

materials were confiscated on August 4, 2006, and he filed his complaint on

December 20, 2006. In his supplement to the complaint, Denney complained that

the confiscation “hindered [his] filing of his habeas corpus petition in a timely

manner.” Because the confiscation of Denney’s materials allegedly hindered the



                                           6
timely filing of a habeas petition, Denney alleged an actual injury to his right of

access to the courts.

      The district court also abused its discretion when it denied Denney leave to

amend his complaint to establish that he had exhausted his administrative remedies

on the grounds that Nelson had already filed a responsive pleading and the

amendment was futile. Denney was entitled to amend his complaint as a matter of

course. A plaintiff may amend his complaint “once as a matter of course” before a

responsive pleading is served. Fed. R. Civ. P. 15(a)(1). Nelson’s motion to

dismiss did not terminate Denney’s entitlement to amend his complaint because the

motion was not a responsive pleading: “[T]he term ‘responsive pleading’ does not

include such filings as a motion to dismiss or a motion for summary judgment.”

Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1284 (11th Cir. 2000).

Neither did the alleged futility of Denney’s amendment terminate his entitlement to

file it. “When 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 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).

The district court did not have the discretion to deny Denney leave to amend his

complaint.



                                           7
      The district court did not abuse its discretion when it denied Denney’s

motion to compel discovery and denied Denney a hearing. Although neither

discovery nor a hearing are ordinarily necessary to resolve a motion to dismiss

because the allegations in the complaint are taken as true, Chudasama v. Mazda

Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997), the district court engaged in

limited discovery to determine whether Denney alleged an actual injury to his right

of access to the courts. Although Denney argues that he needed to present

evidence in response to Nelson’s motion to dismiss, the evidence he wanted to

present—that he exhausted his administrative remedies—was not relevant to the

question whether he had alleged an actual injury. The district court did not abuse

its discretion when it denied Denney’s requests for discovery and a hearing.

                               IV. CONCLUSION

      We VACATE the dismissal of Denney’s complaint and denial of leave to

amend that complaint and REMAND for further proceedings. We AFFIRM the

denial of Denney’s requests for discovery and a hearing.




                                         8
