FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 28, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-15997

Non-Argument Calendar

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D. C. Docket No. 09-00961-CV-RBP-HGD

BERNARD JEMISON, JR.,

Plaintiff-Appellant,

versus

WARDEN DAVID WISE,

Defendant-Appellee.

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Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(July 28, 2010)

Before BARKETT, HULL and FAY, Circuit Judges.

PER CURIAM:

Bernard Jemison, Jr., an Alabama prisoner proceeding pro se, appeals the
district court’s sua sponte dismissal of his complaint, pursuant to 28 U.S.C.

§ 1915A, for failure to state a claim. Jemison’s complaint, which was brought

under 42 U.S.C. § 1983, alleged that Warden David Wise retaliated against him for

exercising his First Amendment right to free speech by filing a lawsuit against

Wise and other prison officers. On appeal, Jemison contends that the district court

should have provided him with the opportunity to amend his complaint before

dismissing it with prejudice. Jemison further argues that he adequately stated a

retaliation claim. Jemison has attached exhibits to his brief, which, he contends,

constitute evidence that Wise retaliated against him.

For the reasons set forth below, we vacate and remand for further

proceedings consistent with this opinion.

I.

Jemison, proceeding pro se, filed the § 1983 complaint naming Wise,

Warden of St. Clair Correctional Facility, as a defendant. Jemison alleged that, on

April 21, 2009, several correctional officers beat him because he had filed

numerous complaints against prison officials. Jemison filed a lawsuit against the

officers, and also named Wise as a defendant for allegedly failing to protect

Jemison from abuse. Jemison further alleged that “Wise took great offense” at

being named as a defendant, and that, “days later,” Wise retaliated by transferring

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Jemison to William E. Donaldson Correctional Facility (“Donaldson”), a prison

with a higher level of security. Jemison specified that he was transferred on April

30, 2009, and alleged that, days before his transfer, Wise gave him a threatening

letter. Jemison asserted that he still possessed this letter. Jemison asserted that, by

taking the actions described above, Wise unlawfully had retaliated against him for

filing a lawsuit challenging his conditions of confinement.

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Before Wise received service of process, the magistrate judge entered a

report and recommendation, recommending that, pursuant to the Prisoner

Litigation Reform Act, 28 U.S.C. § 1915A, (“PLRA”), the court sua sponte

dismiss Jemison’s complaint for failure to state a claim upon which relief could be

granted. The magistrate determined that Jemison had failed to state a retaliation

claim against Wise, because he did not plead specific facts from which the court

reasonably could infer that Wise acted with a retaliatory motive when he

transferred Jemison. The magistrate found that Jemison did not make a plausible

showing that Wise was actually aware of Jemison’s § 1983 lawsuit before he

ordered Jemison’s transfer to Donaldson, and that the mere fact that Jemison had

 Jemison also raised a claim alleging that the was subjected to cruel and unusual 1

punishment, in violation of the Eighth Amendment. Jemison, however, has not raised an

argument regarding his Eighth Amendment claim in his brief on appeal, and thus has abandoned

any argument as to the court’s dismissal of this claim. See Horsley v. Feldt, 304 F.3d 1125,

1128, 1131 n.1 (11th Cir. 2002) 

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filed a lawsuit before the transfer, standing alone, did not give rise to an inference

that Wise acted with a retaliatory motive. The magistrate noted that, in Jemison’s

previous § 1983 lawsuit against Wise and other officers, Jemison had filed a notice

of change of address that stated that his transfer to Donaldson was an “emergency

transfer.” The magistrate determined that an emergency transfer was “wholly

inconsistent” with the retaliation claim being asserted in the present case. The

magistrate acknowledged that Jemison alleged that Wise took “great offense” at

being named as a defendant in Jemison’s § 1983 lawsuit, but, relying on

Fed.R.Civ.P. 8(a)(2), found that this assertion was too vague to support a claim for

relief. Accordingly, the magistrate concluded that Jemison’s retaliation claim

should be dismissed.

Jemison filed objections to the magistrate’s report and recommendation,

asserting that the magistrate had erred in finding that his retaliation claim was

subject to dismissal. Jemison alleged that Wise had been “greatly upset” that

Jemison had filed a lawsuit against him, and that Wise verbally had expressed his

anger to Jemison in a face-to-face interaction. Jemison also asserted that all of his

incoming and outgoing mail was “censored” by prison officials. Jemison argued

that the magistrate abused his discretion in recommending the “immature”

dismissal of his complaint, asserting that, had Wise been given a chance to answer,

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and had the parties been granted the chance to engage in discovery, he could have

shown that Wise was aware of Jemison’s previous § 1983 lawsuit at the time that

he ordered Jemison’s transfer to Donaldson. Finally, Jemison alleged that the fact

that his transfer to Donaldson was termed an “emergency” transfer indicated only

that the transfer was unscheduled. He asserted that, while the transfer process

usually lasts for a matter of months, his transfer to Donaldson was accomplished in

a number of hours. Jemison contended that Wise had no reason to transfer him,

apart from retaliation.

The district court entered an opinion, adopting the report and

recommendation and dismissing Jemison’s complaint under § 1915A(b) for failure

to state a claim upon which relief may be granted. The court found that the fact

that Jemison had filed a lawsuit before he was transferred, standing alone, did not

permit an inference that Wise had acted with a retaliatory motive when he ordered

Jemison’s transfer to Donaldson. The court also found that, while Jemison alleged

in his objections to the report and recommendation that Wise verbally had

expressed his anger regarding Jemison’s complaint, this allegation was too vague

to raise more than an inference of a “possibility” that Wise had acted unlawfully.

Based on its finding that the complaint permitted an inference of only the mere

possibility of misconduct, the court determined that Jemison’s complaint should be

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dismissed.

II.

Pursuant to 28 U.S.C. § 1915A, a district court “shall review, before

docketing, if feasible, or, in any event, as soon as practicable after docketing, a

complaint in a civil action in which a prisoner seeks redress from a government

entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a).

On review, the court “shall” dismiss the complaint if, among other things, it fails to

state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(1). We

review de novo a district court’s sua sponte dismissal of a prisoner’s complaint for

failure to state a claim upon which relief may be granted, pursuant to 28 U.S.C.

§ 1915A(b)(1). Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1278-79 (11th Cir.

2001). The standards that apply to a dismissal under Fed.R.Civ.P. 12(b)(6) apply

to a dismissal under § 1915A(b)(1). See Leal, 254 F.3d at 1278-79 (noting that the

language in § 1915A(b)(1) “mirrors” the language in 28 U.S.C. § 1915(e)(2)(B)(ii),

which “tracks” the language in Rule 12(b)(6)). We review “a district court’s

decision regarding leave to amend for abuse of discretion.” Troville v. Venz, 303

F.3d 1256, 1259 (11th Cir. 2002).

When reviewing a court’s dismissal of a complaint pursuant to Rule

12(b)(6), we accept the factual allegations in the complaint as true and construe

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them in the light most favorable to the plaintiff. Hill v. White, 321 F.3d 1334, 1335

(11th Cir. 2003). In order to survive a motion to dismiss, a complaint must allege

facts that, if true, “state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quotation

omitted). A claim is plausible where the plaintiff alleges facts that “allow[] the

court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. The plausibility standard requires that a plaintiff allege

sufficient facts “to raise a reasonable expectation that discovery will reveal

evidence” that supports the plaintiff’s claim. Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 556, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). Conclusory

statements, without more, are insufficient to show a right to relief. See Ashcroft,

556 U.S. at ___, 129 S.Ct. at 1949.

“A party may amend its pleading once as a matter of course . . . before

being served with a responsive pleading.” Fed.R.Civ.P. 15(a)(1) (2005). In all

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other cases, a party is required to obtain leave to amend his pleading, and the court

should “freely” grant leave to amend “when justice so requires.” Fed.R.Civ.P.

 Effective December 1, 2009, Rule 15(a) has been amended to provide that “[a] party 2

may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if

the pleading is one to which a responsive pleading is required, 21 days after service of a

responsive pleading or 21 days after service of a motion under 12(b), (e), or (f), whichever is

earlier.” See Fed.R.Civ.P. 15(a); Fed.R.Civ.P. 15, Advisory Committee Notes. 

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15(a)(2). “[A] district court’s discretion to dismiss a complaint without leave to

amend is severely restricted by Fed.R.Civ.P. 15(a).” Bryant v. Dupree, 252 F.3d

1161, 1163 (11th Cir. 2001) (quotation and alteration omitted). “Nothing in the

language of the PLRA repeals Rule 15(a).” Brown v. Johnson, 387 F.3d 1344,

1349 (11th Cir. 2004). We have held that a district court erred by denying the

plaintiff’s motion to amend his in forma pauperis complaint, as he had the right to

amend his complaint as a matter of course under Fed.R.Civ.P. 15(a) without

seeking leave to amend. See Troville, 303 F.3d at 1260 n.5.

“Where 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.” Bryant, 252 F.3d at 1163 (quotation and

alteration omitted). We have held that, where a pro se prisoner did not expressly

request the opportunity to amend his complaint, but alleged facts supporting a First

Amendment retaliation claim for the first time in his objections to the magistrate’s

report and recommendation, the district court erred by failing to provide the

prisoner an opportunity to amend before sua sponte dismissing his complaint under

the PLRA’s screening provisions. See Boxer X v. Harris, 437 F.3d 1107, 1110 n.2,

1112 & n.4 (11th Cir. 2006). Unless a court specifies otherwise, a dismissal based

on a finding that the complaint fails to state a claim upon which relief may be

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granted operates as an adjudication on the merits. See Fed.R.Civ.P. 41(b)

(providing that, unless a dismissal order states otherwise, an involuntary dismissal

“operates as an adjudication on the merits”).

“The First Amendment forbids prison officials from retaliating against

prisoners for exercising the right of free speech.” Farrow v. West, 320 F.3d 1235,

1248 (11th Cir. 2003). An inmate raises a First Amendment claim of retaliation if

he shows that the prison official disciplined him for filing a grievance or lawsuit

concerning the conditions of his imprisonment. Wildberger v. Bracknell, 869 F.2d

1467, 1468 (11th Cir. 1989). Even though a prisoner does not have a liberty

interest in not being transferred to another prison, he may state a retaliation claim

by alleging that he was transferred due to his filing of a grievance or lawsuit

concerning his conditions of his confinement. See Bridges v. Russell, 757 F.2d

1155, 1156-57 (11th Cir. 1985). To establish a retaliation claim, the inmate must

show, inter alia, a causal connection between his protected conduct and the prison

official’s action. Farrow, 320 F.3d at 1248-49. In other words, the prisoner must

show that, as a subjective matter, a motivation for the defendant’s adverse action

was the prisoner’s grievance or lawsuit. Smith v. Mosley, 532 F.3d 1270, 1278

(11th Cir. 2008).

Here, the district court abused its discretion by dismissing Jemison’s

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complaint with prejudice before providing him with an opportunity to amend his

complaint. See Fed.R.Civ.P. 41(b); Fed.R.Civ.P. 15(a). Because Wise had not

filed a responsive pleading at the time that the court dismissed Jemison’s complaint

under § 1915A, Jemison had the right to amend his complaint as a matter of

course, pursuant to Fed.R.Civ.P. 15(a). See Troville, 303 F.3d at 1260 n.5. While

Jemison did not expressly state that he wished to amend his complaint, he alleged

additional facts in his objections to the report and recommendation that were

relevant to the causation element of his retaliation claim—namely, that Wise

expressed his anger regarding Jemison’s lawsuit in a personal conversation with

Jemison, and that Jemison’s mail was censored by prison officials, thus indicating

the plausibility that prison officials learned about Jemison’s lawsuit by viewing his

mail. See Boxer X, 437 F.3d at 1112 & n.4.

By alleging these additional facts in his objections to the report and

recommendation, Jemison indicated that he could state a plausible claim that Wise

acted with a retaliatory motive by describing the content of his conversation with

Wise, and by detailing the unusual circumstances surrounding his transfer to

Donaldson. See Ashcroft, 556 U.S. at ___, 129 S.Ct. at 1949; Twombly, 550 U.S.

at 556, 127 S.Ct. at 1965. Accordingly, regardless of whether Jemison’s retaliation

claim ultimately has merit, the district court erred by dismissing Jemison’s

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complaint with prejudice before providing him with an opportunity to amend.

Finally, we note that we do not consider the exhibits that Jemison has

attached to his brief on appeal. Because Jemison failed to submit these exhibits to

the district court, they are not relevant to the issue of whether the court erred in

dismissing his complaint. See Brooks v. Blue Cross and Blue Shield of Fla., Inc.,

116 F.3d 1364, 1368-69 (11th Cir. 1997) (holding that the analysis of a motion to

dismiss under Fed.R.Civ.P. 12(b)(6) is limited “primarily to the face of the

complaint and attachments thereto”).

VACATED AND REMANDED.

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