United States Court of Appeals 

for the Fifth Circuit 

No. 20-11008 

Summary Calendar 

John Louis Atkins, 

Plaintiff—Appellant, 

versus

Jeffrey A. Propst, 

Defendant—Appellee. 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 1:19-CV-166 

Before Owen, Chief Judge, and Smith and Elrod, Circuit Judges. 

Per Curiam:*

John Louis Atkins, Texas prisoner # 2184778, appeals the district 

court’s dismissal of the amended complaint he filed pro se against his former 

attorney. After granting Atkins leave to proceed in forma pauperis, the 

district court sua sponte dismissed the case without prejudice for lack of 

*

 Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4. 

United States Court of Appeals 

Fifth Circuit 

FILED 

January 3, 2022 

Lyle W. Cayce 

Clerk 

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No. 20-11008 

2 

subject matter jurisdiction and for failure to state a claim upon which relief 

may be granted. The district court also alternatively ordered that the 

complaint be dismissed with prejudice for failure to state a claim upon which 

relief may be granted. The court denied as moot Atkins’s motion for a 

hearing under Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). 

Atkins argues that the district court erred by dismissing the case 

without first conducting a Spears hearing or otherwise permitting him to 

address the court’s concerns through a more specific pleading. Before sua 

sponte dismissing a pro se litigant’s case with prejudice, a district court 

ordinarily must provide an opportunity to amend the complaint to remedy 

the deficiencies. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998); Eason 

v. Thaler, 14 F.3d 8, 9 & n.5 (5th Cir. 1994). A dismissal without prejudice 

should be treated as a dismissal with prejudice when a refiling of the claims 

would be time barred by the time of the dismissal. See Berry v. CIGNA/RSICIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992); Murphy v. Kellar, 950 F.2d 290, 

292 & n.5 (5th Cir. 1992). 

Although the district court granted Atkins’s motion to file an 

amended complaint shortly after the filing of his original complaint, the 

amended complaint was not a meaningful opportunity for him to respond to 

deficiencies because he had no notice at the time that the complaint 

contained deficient allegations and was in jeopardy of dismissal. See Rodgers 

v. Lancaster Police & Fire Dep’t, 819 F.3d 205, 213 (5th Cir. 2016). The 

district court should have given Atkins an opportunity to further develop his 

allegations before sua sponte dismissing the case. See Bazrowx, 136 F.3d at 

1054; Eason, 14 F.3d at 9. 

Accordingly, we vacate the judgment and remand so that Atkins may 

receive such an opportunity. See Brown v. Taylor, 829 F.3d 365, 370 (5th Cir. 

2016). No other limitations are placed on the matters that the district court 

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may consider and decide on remand. We express no view on the merits 

regarding subject matter jurisdiction or Atkins’s claims.1

VACATED and REMANDED. 

1

 We do not consider Atkins’s argument here that the district court judge should 

have recused himself in this case, as it is raised for the first time on appeal. See Andrade v. 

Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003); Clay v. Allen, 242 F.3d 679, 681 (5th Cir. 

2001). Given our decision, we also do not reach Atkins’s remaining arguments challenging 

the dismissal of the case. 

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