Lagrange v. Galloway ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50977
Summary Calendar
RICARDO LAGRANGE,
Plaintiff-Appellant,
VERSUS
DEBRA GALLOWAY, Lieutenant, ET AL.,
Defendants,
DEBRA GALLOWAY, Lieutenant; TRAVIS COUNTY
SHERIFF; NORMAN MATTHEWS, Post Officer,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-99-CV-462-JN
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June 15, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Ricardo Lagrange appeals the dismissal of his 42 U.S.C. § 1983
complaint against Debra Galloway, the Travis County Sheriff, and
Norman Matthews for failure to state a claim, pursuant to 28 U.S.C.
§ 1915(e). Lagrange also appeals the district court’s denial of
his motion to amend his complaint to add additional parties and to
allege the additional claim of deliberate indifference to
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 CIR.
R. 47.5.4.
No. 99-50977
-2-
Lagrange’s medical needs. Finally, Lagrange has moved this court
to appoint appellate counsel.
We have reviewed the record and briefs submitted by the
parties and find no error in the dismissal of Lagrange’s failure to
protect claim. See Farmer v. Brennan, 511 U.S. 825, 837 (1994);
Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995); Oliver v.
Collins, 914 F.2d 56, 60 (5th Cir. 1990).
Lagrange was entitled to amend his complaint once as of right
because the defendants had not filed a responsive pleading. Fed.
R. Civ. P. 15(a); see Barksdale v. King, 699 F.2d 744, 746-47 (5th
Cir. 1983); McGruder v. Phelps, 608 F.2d 1023, 1025 (5th Cir.
1979). This right is absolute absent unusual circumstances.
Aguilar v. Texas Dep’t of Criminal Justice, 160 F.3d 1052, 1053
(5th Cir. 1998). Accordingly, because we find that the district
court abused its discretion in denying Lagrange’s motion to amend,
we vacate and remand with instructions that the district court
grant Lagrange’s motion to amend and address the merits of his
additional claim.
Lagrange’s motion for appellate counsel is DENIED.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.