Lagrange v. Galloway

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 19, 2000
• Docket: 99-50977
• Status: Unpublished

Opinion

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.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-99-CV-462-JN -------------------- 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.