FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 3, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-16513

Non-Argument Calendar

________________________

D. C. Docket No. 08-02271-CV-TWT-1

AVERY LAMAR MILLER, 

Plaintiff-Appellant, 

versus

R.L. CONWAY, 

Sheriff, 

FERGUSON, 

Lieutenant Deputy, 

E. MCKENZIE, 

Deputy, 

J. LAND, 

Deputy, 

H. BREITINGER, 

Deputy, 

Defendants-Appellees. 
________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

 (June 3, 2009)

Before DUBINA, Chief Judge, TJOFLAT and PRYOR, Circuit Judges.

PER CURIAM:

Avery Lamar Miller, a pretrial detainee, appeals pro se the dismissal of his

complaint against R.L. Conway, FNU Ferguson, E. McKenzie, and H. Breitinger

of the Sheriff’s Department of Gwinnett County. See 42 U.S.C. § 1983; 28 U.S.C.

§ 1915A(b)(1). The district court concluded that Miller’s complaint failed to state

a claim. 28 U.S.C. § 1915A(b). We affirm in part, vacate in part, and remand.

“We generally review the denial of a motion to amend a complaint for an

abuse of discretion, but we review questions of law de novo.” Williams v. Bd. of

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

omitted). We review de novo a dismissal under Rule 12(b)(6) for failure to state a

claim, accept the allegations in the complaint as true, and construe them in the

light most favorable to the plaintiff. Doe v. Moore, 410 F.3d 1337, 1342 (11th

Cir. 2005).

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The district court erred when it denied as futile Miller’s motion to amend

his complaint to include additional defendants. “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). Because none of the police officers named in the complaint

had filed a responsive pleading when Miller sought to amend his complaint, Miller

had the right to amend his complaint as a matter of course. See Williams, 477

F.3d at 1292 & n.6. We vacate the order that denied Miller’s motion to amend and

remand for the district court to allow Miller to file an amended complaint.

The district court also erred when it dismissed Miller’s claim about the “no

talking” rule. “Due process prohibits a state from punishing a pretrial detainee at

all until he is lawfully convicted of a crime.” McMillan v. Johnson, 88 F.3d 1554,

1564 (11th Cir. 1996). “[A] showing of intent to punish suffices to show

unconstitutional pretrial punishment” and “may be inferred when a condition of

pretrial detention is not reasonably related to a legitimate governmental goal.” Id. 

Because Miller alleged that the “no talking” rule was arbitrary and capricious, he

stated a claim that the rule was imposed to punish him.

The district court did not err when it dismissed the remainder of Miller’s

complaint. Miller asserts that Breitinger made “horrific threats” to another inmate,

but Miller lacks standing to pursue a claim on behalf of another person. See

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Granite State Outdoor Adver., Inc. v. City of Clearwater, Fla., 351 F.3d 1112,

1116 (11th Cir. 2003). Miller argues that an officer retaliated against him for

exercising his right to free speech, but he failed to allege facts that Conway,

Ferguson, McKenzie, and Breitinger participated in the retaliation. See Douglas v.

Yates, 535 F.3d 1316, 1321–22 (11th Cir. 2008).

We AFFIRM the dismissal of Miller’s complaint except his claim regarding

the “no talking” rule and we REVERSE the dismissal of that claim. We

VACATE the order that denied Miller’s motion to amend and REMAND for

further proceedings.

AFFIRMED IN PART, REVERSED IN PART. VACATED AND

REMANDED IN PART.

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