                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-7248


PAUL SCINTO, SR.,

                Plaintiff – Appellant,

          v.

WARDEN PATRICIA STANSBERRY, Warden, FCI - Butner-Low; SUSAN
G. MCCLINTOCK, Camp Administrator, FPC-Butner; R. HOLT,
Senior Officer Specialist,

                Defendants – Appellees,

          and

FEDERAL BUREAU OF PRISONS, a division of the U.S.
Department of Justice; HARLEY G. LAPPIN, Director, Bureau
of Prisons; KIM M. WHITE, Mid Atlantic Regional Director,

                Defendants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
Chief District Judge. (5:10-ct-03165-D)


Submitted:   November 29, 2012              Decided:   January 25, 2013


Before MOTZ, DAVIS, and FLOYD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.
Paul Scinto, Sr., Appellant Pro Se. William Ellis         Boyle,
Christian Alexander Natiello, OFFICE OF THE UNITED        STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              Paul Scinto, Sr., appeals from the district court’s

order      denying    his   motion   to   amend   his    Bivens 1   complaint   and

granting the Defendants’ motion to dismiss.                  Because Scinto had

the right to file an amended complaint as a matter of course, we

vacate      the   district    court’s     judgment   and    remand   for   further

proceedings.

              Under Federal Rule of Civil Procedure 15(a)(1)(B), a

plaintiff may amend his complaint once as a matter of course

within 21 days after the earlier of (1) service of a responsive

pleading or (2) service of a motion under Rule 12(b), (e), or

(f).       After expiration of this time period, a party may amend

only with either the opposing party’s written consent or the

court’s leave.         Fed. R. Civ. P. 15(a)(2).           We review a district

court’s denial of a motion to amend a complaint for abuse of

discretion.          Pub. Emps.’ Ret. Ass’n v. Deloitte & Touche LLP,

551 F.3d 305, 313 n.3 (4th Cir. 2009).                  A district court abuses

its discretion if it fails or refuses to exercise its discretion

or if it relies on an erroneous factual or legal premise.                   James

v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).




       1
       Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).



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           Here, no responsive pleading was filed, and Scinto had

not filed a previous amended complaint.                     Instead, on August 1,

2011, Defendants filed a motion to dismiss. 2                  Also, on August 1,

Scinto filed a motion to amend his complaint. 3

           The district court denied Scinto’s motion to amend on

the   grounds     that        it   was    futile      and    Scinto     offered     no

justification for waiting years after the events giving rise to

his   complaint   to     file      his   motion      to   amend.      “However,    the

doctrine of futility only applies when the plaintiff seeks leave

of court to amend and does not have a right to amend.                              The

plaintiff’s     right    to    amend     once   is    absolute.”       Galustian    v.

Peter, 591 F.3d 724, 730 (4th Cir. 2010).                   Further, as discussed

above, Scinto’s pro se amendments and related materials were

timely filed within 21 days of the motion to dismiss.                       Because

Scinto had the right to amend his complaint as a matter of

course and without leave of court, the district court abused its

      2
       The case was transferred from the District Court for the
District of Columbia.   While Defendants had filed a motion to
dismiss in that court, a prior version of Rule 15(a)(1) was in
effect at that time.     Prior Rule 15(a)(1) provided that a
responsive pleading, but not a motion to dismiss, terminated a
plaintiff’s right to amend his complaint as a matter of course.
Thus, Defendants’ prior motion to dismiss filed in the District
of Columbia did not terminate Scinto’s right to amend as a
matter of course.
      3
       Within the twenty-one day period, Scinto also filed a
response to the motion to dismiss, attaching an affidavit as
well as other documentary evidence.



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discretion by denying the motion to amend.               As a result, the

district court further erred in ruling on Defendants’ motion to

dismiss without considering Scinto’s amendments.

              Accordingly, we vacate the district court’s judgment

and remand for the district court to file and consider Scinto’s

amended complaint.       We dispense with oral argument because the

facts   and    legal   contentions    are   adequately   presented    in   the

materials     before   this   court   and   argument   would   not   aid   the

decisional process.

                                                       VACATED AND REMANDED




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