[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-11278

Non-Argument Calendar

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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.

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Appeal from the United States District Court

for the Southern District of Georgia

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(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, 

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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 

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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”). 

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