Lozano v. Schubert, No. 21-20010 (5th Cir. 2022)

Plaintiff filed a 1983 civil rights complaint against various employees of the Texas Department of Criminal Justice (TDCJ) who worked at the Wallace Pack Unit. Plaintiff, who is Muslim, alleged that when he was evacuated from the Stringfellow Unit (a state prison) to the Wallace Pack Unit due to Hurricane Harvey, he was not provided with kosher meals, even though such meals were received by similarly situated Jewish inmates.
 
The district court granted Defendants’ summary judgment motion. The court noted that Plaintiff had never submitted an amended complaint, and it explained that it could not consider any new allegations that Plaintiff had presented in his response to the defendants’ motion for summary judgment.
 
The Fifth Circuit previously instructed the district court to make sure that, on remand, Plaintiff had an “adequate opportunity to cure the inadequacies in his pleading,” despite his status as a pro se litigant. Plaintiff argued that the district court erred by not giving him an opportunity to cure the inadequacies in his complaint.
 
The Fifth Circuit reversed and remanded explaining that the district court read the court’s mandate too narrowly. The court wrote that the record indicates that the district court only explicitly “informed” Plaintiff of its requirement that a motion for leave to amend must be accompanied by a proposed amended complaint. For a pro se litigant, such a denial of a motion to amend is not, by itself, an adequate opportunity to cure. At a minimum, the district court should have construed Plaintiff’s reply to Defendants’ answer as a proposed amended complaint, which it should have accepted.