                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-12090                MARCH 23, 2011
                                                                     JOHN LEY
                                   Non-Argument Calendar               CLERK
                                 ________________________

                           D.C. Docket No. 6:10-cv-00384-JA-DAB

SCOTT R. ZABRISKIE,

lllllllllllllllllllll                                                Plaintiff-Appellant,

                                            versus

BOB HANSELL,
Sheriff of Osceola,
JOHN DOE NO. 1,
JOHN DOE NO. 4,
JOHN DOE NO. 5,
JOHN DOE NO. 2, et al.,

lllllllllllllllllllll                                            Defendants-Appellees.

                                ________________________

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

                                       (March 23, 2011)
Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

      Scott Ray Zabriskie, proceeding pro se, appeals the district court’s dismissal

of his 42 U.S.C. § 1983 action as frivolous. The district court adopted the magistrate

judge’s report and recommendation denying Zabriskie’s motion to proceed in forma

pauperis and sua sponte dismissing the case as frivolous, pursuant to 28 U.S.C. §

1915(e)(2)(B)(i), because Zabriskie was bound by his representation in another

pending case, and therefore could not maintain his factually inconsistent position in

the instant case. See Scott Ray Zabriskie v. City of Kissimmee Police Department,

case no. 6:10-cv-70-PCF-KRS. After the dismissal, Zabriskie amended the complaint

in the City of Kissimmee case, which resolved the inconsistency underlying the

district court’s order dismissing the instant case as frivolous. On appeal, Zabriskie

argues that his complaint in the instant case at least meets the minimal pleading

standards for pro se plaintiffs, that the “minor error” in the City of Kissimmee

complaint has been resolved, and that the district court erred when it dismissed the

instant case without sua sponte offering Zabriskie an opportunity to amend the

complaint in the City of Kissimmee case. After thorough review, we vacate and

remand.




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      We review a district court’s sua sponte dismissal for frivolity under 28 U.S.C.

§ 1915(e)(2)(B)(i) for abuse of discretion. Hughes v. Lott, 350 F.3d 1157, 1160 (11th

Cir. 2003); Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). We also review for

abuse of discretion denials of leave to amend, Troville v. Venz, 303 F.3d 1256, 1259

(11th Cir. 2002), but we review questions of law de novo. Williams v. Board of

Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1291 (11th Cir. 2007).

      Pursuant to Federal Rule of Civil Procedure 15(a), a party may amend its

pleading once as a matter of course at any time before a responsive pleading is

served. Fed.R.Civ.P. 15(a)(1). We have held: “[w]here a more carefully drafted

complaint might state a claim, a plaintiff must be given at least one chance to amend

the complaint before the district court dismisses the action with prejudice.” 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) (not

addressing pro se plaintiffs). We apply the rule even where the plaintiff never sought

leave to amend in the district court before filing an appeal. Id.

      Here, the district court did not abuse its discretion when it dismissed the instant

case nor when it did not sua sponte offer Zabriskie an opportunity to amend the

complaint in the City of Kissimmee case, because the complaint in this case was

implausible on its face, and Zabriskie failed to resolve the inconsistency after it was


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pointed out to him by the district court. However, Zabriskie has now amended the

complaint in the City of Kissimmee case. Therefore, the factual inconsistency

underlying the district court’s dismissal in the instant case has been resolved. We

vacate the district court’s order dismissing the case, and remand to the district court

for proceedings consistent with this opinion.1

      VACATED AND REMANDED.




      1
       In addition, Scott Zabriskie’s Motion to Supplement the Record (Motion to Add/Amend
Appendix for Initial Brief) is GRANTED.

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