Hernandez v. El Pasoans Fighting ( 2022 )

Case: 22-50240 Document: 00516594103 Page: 1 Date Filed: 12/30/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 30, 2022
No. 22-50240
Lyle W. Cayce
Clerk
Alejandro Hernandez,
Plaintiff—Appellant,
versus
El Pasoans Fighting Hunger; Jose "Abe" Gonzalez;
Susan E. Goodall,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:21-CV-55
Before King, Stewart, and Haynes, Circuit Judges.*
Per Curiam:**
Alejandro Hernandez, proceeding pro se and in forma pauperis, appeals
the dismissal of his complaint with prejudice. For the following reasons, we
AFFIRM in part, REVERSE in part, and REMAND for further
proceedings.
*
Judge Haynes concurs in the judgment only.
**
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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I.
In March 2021, Plaintiff-Appellant Alejandro Hernandez, proceeding
pro se, filed a single-count complaint against Defendants-Appellees seeking
injunctive relief for violations of the Americans with Disabilities Act
(“ADA”). After Hernandez filed an application to proceed in forma pauperis,
the district court referred the application to a magistrate judge. The district
court also directed the magistrate judge to consider whether Hernandez’s
action should be dismissed under the in forma pauperis statute, 28 U.S.C.
§ 1915. Hernandez subsequently amended his complaint (as amended, the
“Complaint”) after his application to proceed in forma pauperis was granted.
In his Complaint, Hernandez alleges that he suffers from asthma exacerbated
by breathing difficulties caused by a deviated septum in addition to severe
PTSD, chronic anxiety, and “panic triggers” that “hinder breathing
abruptly” and disrupt “other normal daily functions,” all of which
“substantially limit most major life activities with distress.” Hernandez
alleges that he is unable to wear a face covering for “medical reasons,” i.e.,
due to his disabilities. Defendants-Appellees are a food bank, El Pasoans
Fighting Hunger (“EPFH”), and two of its employees, Jose “Abe”
Gonzalez and Susan E. Goodall (collectively, the “Defendants”).
EPFH operates “walk-up locations” where it distributes food to those
who are in need. During the COVID-19 pandemic, EPFH had a policy
requiring all food recipients to wear a face covering while at a walk-up
location. On January 13, 2021, Hernandez alleges that he went to one of
EPFH’s walk-up locations in El Paso, Texas without wearing a mask.
According to Hernandez, he was “pushed by an attendant working for the
Defendants, experienced shaming in the form of name calling,” and was
publicly “labeled with demeaning, humiliating and degrading language and
treatment” while attempting to receive food at the El Paso walk-up location.
Hernandez also alleges that he had been previously “physically pushed out
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of the building by a male staff member” at the El Paso walk-up location on or
about January 10, 2021. Accordingly, Hernandez asserts that Defendants
have prevented him from accessing their food services by denying him entry
to walk-up locations.
The Complaint also describes Hernandez’s “good faith effort[s]” to
resolve this dispute with Defendants. Hernandez spoke to numerous EPFH
employees on multiple occasions, including Goodall and Gonzalez,
explaining the nature of his disability; Gonzalez, however, denied any
wrongdoing. Instead, Hernandez alleges that Gonzalez “violated
[Hernandez’s] privacy by making public searches about [him] to determine
whether he was the property owner of the residence where he lives” and
whether Hernandez owned a vehicle as well. Hernandez also alleges that
EPFH’s website “provides no information on reasonable accommodations
for persons who cannot wear face covering[s].” Hernandez, however, admits
that he “was told that he could register for home delivery as a reasonable
accommodation.” But he alleges that he only received food via home delivery
once after registering for the service in November 2020. According to
Hernandez, he brought this issue to Defendants’ attention and requested that
he alternatively be allowed to receive “curb side service” beside a walk-up
location but that Defendants refused, citing the current home delivery
accommodation as good enough.
Hernandez seeks an injunction requiring Defendants to allow him to
benefit from their food services without wearing a face covering.
Additionally, Hernandez requests that the court “provide clear protocols”
to Defendants, if necessary, and direct Defendants to “train their staff about
its legal obligations and to post and disseminate notice to . . . all pertinent
staff regarding their legal obligations under the ADA.”
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On March 10, 2021, the district court referred Hernandez’s
Complaint to the magistrate judge to determine if the Complaint should be
dismissed under 28 U.S.C. § 1915(e). On April 23, 2021, the magistrate judge
issued his report and recommendations, recommending that the Complaint
be dismissed without prejudice as frivolous and for failing to state a claim.
The magistrate judge reasoned that while Hernandez was able to sufficiently
allege the first two prongs of his ADA claim—that he has a disability and that
“food banks are places of public accommodation under the ADA”—the
Complaint failed to demonstrate that Defendants took adverse action against
him because of his disability. The magistrate judge explained that because the
law does not require a business to “modify or alter the goods and services
that it offers in order to avoid violating” the ADA, Defendants were under
no obligation to alter their masking policy.
On July 1, 2021, the district court issued an order, accepting in part
and rejecting in part the magistrate judge’s report and recommendations.
First, the court explained that the Complaint did not sufficiently allege how
Defendants failed to provide Hernandez with a reasonable accommodation.
Specifically, the court pointed to the paucity of facts surrounding
Defendants’ response to Hernandez’s complaints that he had not been
receiving food deliveries. Rather, the court determined that the Complaint
merely stated in a conclusory manner that Defendants failed to provide a
reasonable accommodation to Hernandez. The court also found that EPFH’s
website showed that, in addition to home delivery, EPFH offered a “Mobile
Pantry” service where “people can alternatively pick [food] up via a ‘drive
thru’ without the need to enter [EPFH’s] facilities,” further refuting
Hernandez’s contention that Defendants failed to provide reasonable
accommodations. The court noted that although Hernandez is entitled to a
reasonable accommodation, this is not necessarily commensurate with his
preferred accommodation, i.e., curb side service. The court also ruled that
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the magistrate judge was correct in that the law does not require Defendants
to alter their masking policy for Hernandez.
Second, and after already holding that the Complaint failed to state a
claim, the court also determined that Hernandez failed to establish that he
had Article III standing to bring his claim. The court held that Hernandez
could not show that there was a threat of future discrimination, i.e., an injury-
in-fact, relying on the same information from EPFH’s website—the Mobile
Pantry service—that it had used to refute the Complaint’s allegations that
Defendants failed to provide a reasonable accommodation. The court also
ruled that the accommodations listed on EPFH’s website mooted
Hernandez’s claim for injunctive relief. The court thus dismissed the
Complaint as frivolous but deviated from the magistrate judge’s
recommendation by ordering that the Complaint be dismissed with
prejudice. The court reasoned that there is a presumption to dismiss
frivolous cases with prejudice unless the court provides an explanation as to
why an exception is warranted. The court declined to provide such an
explanation, noting that the magistrate judge did not do so as well.
On appeal, Hernandez asserts that his Complaint states a claim and is
not frivolous, and that the district court erred when it took judicial notice of
EPFH’s website to refute the Complaint’s allegations.
II.
A court may dismiss a complaint filed by a plaintiff proceeding in
forma pauperis “at any time” if it determines, inter alia, that the action is
frivolous or the complaint fails to state a claim on which relief may be granted.
28 U.S.C. § 1915(e)(2)(B). Accordingly, a court may examine the frivolity of
such a suit before service of process has been effectuated. Green v. McKaskle,
788 F.2d 1116, 1119 (5th Cir. 1986). This is one of those cases; here, the
magistrate judge ordered that service of process should not issue until he
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determined whether Hernandez’s Complaint had merit. In these cases,
“[d]ismissal is ‘often made sua sponte prior to the issuance of process, so as
to spare prospective defendants the inconvenience and expense of answering
such complaints.’” Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir. 1991)
(quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).
Under Title III of the ADA (“Title III”), “[n]o individual shall be
discriminated against on the basis of disability in the full and equal enjoyment
of the goods, services, facilities, privileges, advantages, or accommodations
of any place of public accommodation by any person who owns, leases (or
leases to), or operates a place of public accommodation.” 42 U.S.C.
§ 12182(a). A successful claim under this provision must satisfy three
elements: (1) the plaintiff has a disability; (2) the defendant owns, leases, or
operates a place of public accommodation; and (3) the defendant
discriminates against the plaintiff in connection with that public
accommodation based on the plaintiff’s disability. Accord Molski v. M.J.
Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007); Mershon v. St. Louis Univ., 442
F.3d 1069, 1076 (8th Cir. 2006); Kennedy v. Floridian Hotel, Inc., 998 F.3d
1221, 1231 (11th Cir. 2021); see McNeil v. Time Ins. Co., 205 F.3d 179, 186 (5th
Cir. 2000). The district court held that Hernandez adequately pleaded the
first and second elements of his claim. At issue on appeal is the court’s
determination that the Complaint was deficient in pleading the third element.
But the court’s analysis went beyond the sufficiency of the Complaint’s
factual allegations; it also dismissed the Complaint for lack of subject matter
jurisdiction.
“[W]hen the issue of jurisdiction is intertwined with the merits,
district courts should deal with the objection as a direct attack on the merits
of the plaintiff’s case under . . . [Federal Rule of Civil Procedure] 12(b)(6).”
In re S. Recycling, L.L.C., 982 F.3d 374, 379 (5th Cir. 2020) (internal
quotations omitted); Pickett v. Texas Tech Univ. Health Scis. Ctr., 37 F.4th
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1013, 1019 (5th Cir. 2022); Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir.
1981). Here, the district court held that the Complaint failed to state a claim
for the same reason that it held Article III standing was wanting—the factual
allegations were insufficient to show that Defendants failed to provide a
reasonable accommodation. Additionally, those holdings relied on the same
facts—which the court found on EPFH’s website—to refute the
Complaint’s allegations. The court did not address, however, whether the
jurisdictional and merits issues should be dealt with simultaneously. Without
explanation, the court began its analysis by addressing the Complaint’s
failure to state a claim. Only after completing its 12(b)(6) analysis did the
court turn to Hernandez’s standing. If these two issues are distinct, the court
should have addressed them in reverse order: first, the court should have
ruled on whether it had subject matter jurisdiction, and then, only if it had
ruled in the affirmative, should it have assessed whether the Complaint failed
to state a claim. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95
(1998) (“The requirement that jurisdiction be established as a threshold
matter springs from the nature and limits of the judicial power of the United
States and is inflexible and without exception.” (internal quotations
omitted)); see e.g., Crane v. Johnson, 783 F.3d 244, 251 (5th Cir. 2015) (“We
must first consider the threshold question of jurisdiction.”).
Yet, despite this apparent oversight, an accessible offramp is in reach.
On a typical motion to dismiss for failure to state a claim, a complaint’s
factual allegations are taken as true. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). At this stage of the proceedings, a court is confined to a limited
factual universe: “(1) the facts set forth in the complaint, (2) documents
attached to the complaint, and (3) matters of which judicial notice may be
taken under Federal Rule of Evidence 201.” Walker v. Beaumont Indep. Sch.
Dist., 938 F.3d 724, 735 (5th Cir. 2019). A court may also consider
“[d]ocuments that a defendant attaches to a motion to dismiss,” which “are
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considered part of the pleadings if they are referred to in the plaintiff’s
complaint and are central to her claim.” Causey v. Sewell Cadillac-Chevrolet,
Inc., 394 F.3d 285, 288 (5th Cir. 2004) (quoting Collins v. Morgan Stanley
Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)). Citing this last
exception, the district court made findings of fact based on information it
found on EPFH’s website, implying that it considered the website central to
Hernandez’s claim. The entirety of the district court’s standing and
mootness analyses is dependent on these factual findings. Likewise, much of
the court’s analysis concerning whether the Complaint states a claim relies
on these findings as well.
Hernandez now argues that it was improper for the court to make
these findings. If Hernandez is correct, then he would indeed have standing,
his case would not be moot, and the remaining issue would be whether the
Complaint states a claim. Accordingly, we will first consider whether the
district court was permitted to rely on its factual findings. If not, we need not
determine whether “the issue of jurisdiction is intertwined with the merits”
(nor whether this action is moot). S. Recycling, 982 F.3d at 379 (internal
quotations omitted).
A.
Hernandez argues that EPFH’s website is not central to his
Complaint, and therefore, the district court should not have incorporated it
into its analysis. The Complaint states that “EPFH operates a website which
provides no information on reasonable accommodations for persons who
cannot wear face covering [sic].” This fact forms part of the basis for
Hernandez’s argument that Defendants failed to provide him with a
reasonable accommodation. If EPFH’s website contradicts the Complaint’s
allegations, the remaining allegations supporting his claim cannot stand. The
Complaint recounts Hernandez’s communications with EPFH’s staff.
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According to the Complaint, Defendants told Hernandez that he could
register for home delivery, but the Complaint alleges that this was not a
reasonable accommodation. But Hernandez admits that he is familiar with
EPFH’s website. And the Complaint alleges that Hernandez checked the
website for reasonable accommodations. Therefore, if a reasonable
accommodation was listed on the website, Hernandez would be expected to
inquire as to its availability when communicating with EPFH staff. See
Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1059 (5th Cir. 1997)
(“The plaintiff has the burden of proving that a modification was requested
and that the requested modification is reasonable.”). There can be no Title
III claim if the Complaint cannot show that Hernandez met his burden.
Accordingly, EPFH’s website is central to the Complaint because the
veracity of the relevant factual allegations depends on Hernandez’s
knowledge of the website.
What is troubling, however, is that we cannot locate the information
the district court cited on EPFH’s website. The court held that Defendants
offered individuals like Hernandez reasonable accommodations because
“their website indeed shows that due to COVID-19, Defendants do offer
services such as . . . a ‘Mobile Pantry’ program in which people can
alternatively pick [food] up via a ‘drive thru’ without the need to enter
[Defendants’] facilities,” in addition to the home delivery program. 1
Hernandez asserts that the link cited by the court does not mention the
availability of the Mobile Pantry program. We agree. The article does not
refer to the Mobile Pantry program by name, nor does it describe a similar
1
See EPFH, El Pasoans Fighting Hunger Food Bank’s Response to COVID-19
(Coronavirus), https://elpasoansfightinghunger.org/details/news/el-pasoans-fighting-
hunger-food-banks-response-to-covid-19-coronavirus (last visited Nov. 21, 2022).
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initiative. Therefore, the district court erred in considering these proffered
facts.
The entirety of the district court’s standing and mootness analyses
relied on its factual findings from EPFH’s website. As we have determined
that those factual findings were unsupported, we reverse the court’s order to
the extent it depends on either analysis. We accordingly turn to the court’s
decision to dismiss the Complaint for failure to state a claim.
B.
We review a § 1915(e)(2)(B)(ii) dismissal for failure to state a claim de
novo using the standard applicable to Rule 12(b)(6) dismissals. Butler v. S.
Porter, 999 F.3d 287, 292 (5th Cir. 2021), cert. denied sub nom. Butler v. Porter,
142 S. Ct. 766 (2022), reh’g denied, 142 S. Ct. 1224 (2022). To overcome a
motion to dismiss, a complaint must allege enough facts, accepted as true,
“to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. Although “detailed factual allegations” are not required, the
complaint must include “factual allegations that when assumed to be true
‘raise a right to relief above the speculative level.’” Cuvillier v. Taylor, 503
F.3d 397, 401 (5th Cir. 2007) (quoting Twombly, 550 U.S. at 555). Conclusory
statements or “‘naked assertion[s]’ devoid of ‘further factual
enhancement’” are insufficient. Iqbal, 556 U.S. at 678 (alteration in original)
(quoting Twombly, 550 U.S. at 557). “The plausibility standard . . . asks for
more than a sheer possibility that a defendant has acted unlawfully.” Id. A
complaint pleading facts “that are ‘merely consistent with’ a defendant’s
liability . . . ‘stops short of the line between possibility and plausibility of
entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). Whether the
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plausibility standard has been met is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. at
679. Additionally, the pleadings of a pro se litigant such as Hernandez “are
construed liberally.” Butler, 999 F.3d at 292 (citing Haines v. Kerner, 404
U.S. 519, 520–21 (1972) (per curiam)).
The district court held that the Complaint contained insufficient
factual allegations regarding the third prong of a Title III claim—the
discrimination prong. Discrimination under Title III includes:
a failure to make reasonable modifications in policies,
practices, or procedures, when such modifications are
necessary to afford such goods, services, facilities, privileges,
advantages, or accommodations to individuals with disabilities,
unless the entity can demonstrate that making such
modifications would fundamentally alter the nature of such
goods, services, facilities, privileges, advantages, or
accommodations.
42 U.S.C. § 12182(b)(2)(A)(ii). Hernandez claims that because he was
unable to comply with EPFH’s masking requirements on account of his
disability, which precluded him from benefiting from EPFH’s services,
Defendants were obligated to make reasonable modifications to
accommodate him. The Complaint alleges that Defendants offered
Hernandez a reasonable accommodation in the form of home delivery once
he had initiated communication with EPFH staff. But Hernandez contends
that the Complaint also alleges that the home delivery program was
ineffective. The Complaint states that Hernandez “register[ed] for home
delivery . . . in November [2020] and only received food once since that
time.” The Complaint then states that when Hernandez “informed
Defendants about this fact, . . . Defendants refused to provide a reasonable
accommodation.” The Complaint provides only one additional detail
concerning this interaction: Hernandez requested that Defendants
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alternatively allow him to receive curb side service, but “once again the
Defendants refused to provide this reasonable accommodation citing their
practice as ‘good enough.’”
These allegations are insufficient to show that Hernandez was denied
a reasonable accommodation. Hernandez does not explain how Defendants
responded to his complaint regarding the infrequency of home delivery, apart
from the legal conclusion that they “refused to provide a reasonable
accommodation.” There are no allegations describing Defendants’ actual
response. Hernandez’s characterization of Defendants’ response
necessitates an inferential leap beyond the bounds of a well-pleaded
complaint. A court need not substitute legal conclusions for factual
allegations. Iqbal, 556 U.S. at 678. Tellingly, Hernandez provides a factual
allegation in describing Defendants’ response to his suggested alternative,
i.e., curb side service—that home delivery was “good enough.” This
allegation also demonstrates that Defendants relied on home delivery as a
reasonable modification to their masking policies that could not otherwise
accommodate individuals with disabilities like Hernandez. Thus, the
Complaint would likely be well pleaded had it alleged facts showing that
Defendants refused to ensure that home delivery was an effective alternative.
But this link in the logical chain is not supported by any factual allegations.
Therefore, the Complaint fails to state a claim and we affirm the district
court’s holding in this respect.2
2
Hernandez also challenges the district court’s determination that Defendants
were not required to provide Hernandez with a reasonable accommodation, in part, because
“exempting [Hernandez] from [EPFH’s] mask policy would pose a direct threat to the
health and safety of others . . . due to the COVID-19 pandemic.” We need not reach this
issue as there is a sufficient basis to dismiss the Complaint regardless.
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C.
The district court also dismissed Hernandez’s Complaint as frivolous.
We review a § 1915(e)(2)(B)(i) dismissal for a complaint as frivolous for
abuse of discretion. Butler, 999 F.3d at 292 (5th Cir. 2021). A complaint is
frivolous “where it lacks an arguable basis either in law or in fact.” Neitzke,
490 U.S. at 325. “A complaint lacks an arguable basis in law if it is based on
an indisputably meritless legal theory, such as if the complaint alleges the
violation of a legal interest which clearly does not exist.” Harper v. Showers,
174 F.3d 716, 718 (5th Cir. 1999). “A complaint lacks an arguable basis in fact
if, after providing the plaintiff the opportunity to present additional facts
when necessary, the facts alleged are clearly baseless.” Talib v. Gilley, 138
F.3d 211, 213 (5th Cir. 1998). “[C]learly baseless” is a “category
encompassing allegations that are fanciful, fantastic, and delusional.” Denton
v. Hernandez, 504 U.S. 25, 32–33 (1992) (internal quotations and citations
omitted). “[A] finding of factual frivolousness is appropriate when the facts
alleged rise to the level of the irrational or the wholly incredible, whether or
not there are judicially noticeable facts available to contradict them.” Id. at
33. But an in forma pauperis complaint “may not be dismissed . . . simply
because the court finds the plaintiff’s allegations unlikely.” Id. The standard
to dismiss a complaint as frivolous is more exacting than the standard for
failure to state a claim; accordingly, a court may hold that a complaint fails to
state a claim but does not rise to the level of frivolous. Neitzke, 490 U.S. at
328–29 (“That frivolousness in the § 1915(d) context refers to a more limited
set of claims than does Rule 12(b)(6) accords, moreover, with the
understanding articulated in other areas of law that not all unsuccessful
claims are frivolous.”).
At the conclusion of its analysis, the district court ruled that
Hernandez’s claim was “factually frivolous because the facts alleged are
‘clearly baseless.’” The court, however, did not provide any reasoning for its
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determination, nor did it identify which particular facts were “clearly
baseless.” Because the court held that the Complaint sufficiently pleaded
that Hernandez has a disability and that Defendants operate a place of public
accommodation, we infer that the court deemed the allegations surrounding
the alleged discrimination as frivolous. The Complaint alleges that EPFH
makes no exceptions for its masking policy, effectively preventing Hernandez
from accessing its services. It then recounts Hernandez’s attempt to access
EPFH’s services at a walk-up location without wearing a face covering and
the resulting backlash he experienced. The Complaint also alleges that
Hernandez communicated with EPFH staff in an attempt to rectify his lack
of access to EPFH’s services. We cannot reason that any of these facts (or
the others alleged in the Complaint) are “fanciful,” “fantastic,” or
“delusional,” nor do these allegations read as “irrational” or “wholly
incredible.” See Denton, 504 U.S. at 32–33.
Although we have ruled that the Complaint is lacking in sufficient
detail regarding Hernandez’s communications with EPFH staff, see supra
II.B, this deficiency alone does not render the whole complaint frivolous.
Indeed, the district court recognized that the Complaint easily satisfied the
first two prongs of a Title III claim. And the Complaint does contain
allegations (albeit incomplete) relating to the third prong as well. None of
these facts can be described as frivolous. Therefore, we hold that the district
court abused its discretion in dismissing the Complaint as frivolous.
A complaint that is dismissed as frivolous is presumed to be dismissed
with prejudice unless the district court “specifically dismisses without
prejudice.” Marts v. Hines, 117 F.3d 1504, 1506 (5th Cir. 1997). If a court
dismisses a frivolous action without prejudice, it is expected to provide
reasoning for its decision. Id. Here, the magistrate judge recommended that
the Complaint be dismissed without prejudice. The district court rejected
this recommendation and dismissed the Complaint with prejudice because
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(1) it found no reason that warranted an exception and (2) the magistrate
judge provided no reason for his recommendation on the issue. But now that
we have ruled the Complaint is not frivolous, defaulting to a dismissal with
prejudice may no longer be appropriate. “Generally a district court errs in
dismissing a pro se complaint for failure to state a claim under Rule 12(b)(6)
without giving the plaintiff an opportunity to amend.” Bazrowx v. Scott, 136
F.3d 1053, 1054 (5th Cir. 1998). But “if a complaint alleges the plaintiff’s best
case, there is no need to remand for a further factual statement from the
plaintiff.” Jones v. Greninger, 188 F.3d 322, 327 (5th Cir. 1999). Here, the
record does not indicate that Hernandez was given an opportunity to amend
his Complaint once it was screened by the magistrate judge and district court.
It is also unclear to us that the Complaint alleges Hernandez’s best case
considering that he may only be a few factual allegations away from stating a
claim. Therefore, in light of our ruling that the Complaint should not have
been dismissed as frivolous, we remand this action to the district court to
reconsider whether Hernandez should be given leave to amend his
Complaint.3
III.
For the foregoing reasons, we AFFIRM the dismissal of the
Complaint for failure to state a claim, but we REVERSE the district court’s
holding that the Complaint is frivolous. We accordingly REMAND to the
3
Hernandez filed his initial complaint on March 8, 2021, nearly two years ago. In
the intervening period since this filing, many health precautions, including masking
requirements, have abated. Given these general developments, it is possible that
Hernandez may be seeking to enjoin a policy that is no longer in place. Therefore, the
district court should consider if Hernandez’s claim is moot on this basis when determining
whether he should be provided with the opportunity to amend his Complaint.
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district court to reassess whether dismissal with prejudice is warranted and
whether Hernandez should be afforded leave to amend his Complaint.
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