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[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 23-13379 ____________________ MICHAEL HORTON, Plaintiff-Appellant, versus CAPTAIN GILCHRIST, JOHN DOE, Officer, RICHARD DOE, LT. THOMAS BANDA,

Defendants-Appellees,

LIEUTENANT VANDER, et al., USCA11 Case: 23-13379 Document: 66-1 Date Filed: 02/13/2025 Page: 2 of 15

2 Opinion of the Court 23-13379 Defendant.

____________________ Appeal from the United States District Court for the Southern District of Alabama D.C. Docket No. 1:20-cv-00464-TFM-MU ____________________ Before BRASHER, HULL, and WILSON, Circuit Judges.

BRASHER, Circuit Judge: Michael Horton, an Alabama prisoner and pro se plaintiff, sued two correctional officers for allegedly subjecting him to an unconstitutional body-cavity search. After requiring the officers to provide documents and other evidence and giving Horton an op- portunity to respond, the district court granted the officers sum- mary judgment and dismissed Horton’s lawsuit with prejudice.

Horton argues that the district court erred in granting sum- mary judgment without first sua sponte allowing him to amend his complaint to include new factual allegations. We disagree. We have held that, “[w]here a more carefully drafted complaint might state a claim, a [pro se] plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice.” Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991), limited to pro se litigants by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541 (11th Cir. 2002) (en banc). But the Bank rule applies in the context of Rule 12(b)(6) dismissals with prejudice—not in the USCA11 Case: 23-13379 Document: 66-1 Date Filed: 02/13/2025 Page: 3 of 15

23-13379 Opinion of the Court 3 context of summary judgment. Accordingly, we hold that a district court need not sua sponte give a pro se plaintiff the opportunity to amend his complaint before granting summary judgment. Because the district court did not err in granting summary judgment with- out sua sponte allowing Horton to amend his complaint, we affirm.

I.

Horton filed a complaint alleging violations of his First and Fourteenth Amendment rights and seeking, among other things, injunctive relief against being strip searched in the presence of fe- male officers. Horton alleged that, one morning, while he was per- forming his assigned duties as a barber at Fountain Correctional Facility, officers conducting an institution-wide search entered the shop. Lieutenant Thomas Banda asked the officers whether anyone had searched Horton. The officers indicated that they had not, and, at that point, Captain Jody Gilchrist told Horton to turn around and prepare to be searched. Noticing that two female correctional officers were present, Horton explained that his religious views for- bade him from “expos[ing] his naked body to any woman other than his wife.” Gilchrist nonetheless ordered Horton to take off his clothes. Horton complied, and was made to “bend over, pull the cheeks of his buttocks up and cough” in the view of the female cor- rectional officers. No contraband was found as a result of the search.

Horton attempted to name Banda and Gilchrist as defend- ants in his lawsuit but misspelled “Banda” as “Vander.” Accord- ingly, after “Vander” could not be served, the magistrate judge USCA11 Case: 23-13379 Document: 66-1 Date Filed: 02/13/2025 Page: 4 of 15

4 Opinion of the Court 23-13379 ordered Horton to advise the court of the correct name of the of- ficer or its correct spelling. In response to that order, Horton moved to substitute “Banda” for “Vander” and to add other defend- ants. The magistrate judge recommended that the district court grant the substitution of Banda but deny the addition of other de- fendants. The district court adopted that recommendation.

The magistrate judge also ordered Banda and Gilchrist to re- spond to Horton’s complaint with an “Answer and Special Report.”

The order required, among other things, that the defendants con- duct discovery. Banda and Gilchrist were directed to “undertake a review of the subject matter of the complaint,” “ascertain the facts and circumstances,” “consider whether any action should be taken by officials to resolve the subject matter of the complaint,” and “de- termine whether other similar complaints, whether pending in [the district court] or elsewhere, should be considered together.” The magistrate judge further instructed that the special report should contain “the sworn statements of all persons having knowledge of the subject matter of the complaint,” and, whenever relevant, “cer- tified copies of medical and/or psychiatric records.”

Banda and Gilchrist investigated Horton’s claims and sub- mitted the requested materials to the court. The magistrate judge then notified the parties that the submissions would be converted to motions for summary judgment and advised Horton that “the granting of this motion would represent a final adjudication of this action, which may foreclose subsequent litigation on this matter.”

The magistrate judge gave Horton about two months to file USCA11 Case: 23-13379 Document: 66-1 Date Filed: 02/13/2025 Page: 5 of 15

23-13379 Opinion of the Court 5 materials in opposition to summary judgment and explained to him that “a plaintiff against whom a motion for summary judg- ment is filed must oppose that motion by affidavits or declarations, depositions, answers to interrogatories, admissions, or as other- wise provided in the rules,” that an affidavit must be “sworn to and subscribed before a notary public,” and that a declaration must be “signed under penalty of perjury.”

Despite these instructions, Horton responded to Banda’s and Gilchrist’s materials with an unsigned declaration that included new facts and new legal claims. For example, Horton alleged, for the first time, that he had been searched multiple times instead of once. The magistrate judge refused to consider the declaration for the purposes of summary judgment because it was not signed or dated but instead relied only on the complaint, which was signed under penalty of perjury, and Banda’s and Gilchrist’s evidentiary materials and arguments.

After reviewing the evidentiary materials, the magistrate judge recommended that summary judgment be granted for the defendants. The district court adopted the magistrate judge’s rec- ommendation. Horton filed a motion to alter, vacate, or amend the judgment, and the district court denied it All in all, the litigation spanned about three years.

Horton appealed.

II.

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6 Opinion of the Court 23-13379 We would normally review a district court’s decision to grant summary judgment de novo. Sylvester v. Fulton Cnty. Jail, 94 F.4th 1324, 1329 (11th Cir. 2024). But Horton does not argue that an issue of material fact precluded summary judgment. Instead, he argues only that the district court should have sua sponte allowed him to amend his complaint in response to the defendants’ eviden- tiary submission. We review that kind of decision—a decision about whether to allow an amendment to a complaint—for abuse of discretion. See Troville v. Venz, 303 F.3d 1256, 1259 (11th Cir. 2002).

III.

Horton makes three arguments that the district court abused its discretion by granting summary judgment without first offering him the opportunity to amend his complaint. First, he ar- gues that the Bank rule required the district court to sua sponte al- low him the opportunity to amend his complaint before ruling against him at any point during the litigation. Second, he contends that, at least when a district court employs the special report pro- cedure, a pro se plaintiff should be allowed to amend before sum- mary judgment. Third, apart from those proposed legal rules, he argues that the district court’s failure to sua sponte allow amend- ment is unfair on the unique facts of his case. We consider, and reject, each argument in turn.

Horton’s first argument overreads Bank and would extend that precedent beyond its facts and rationale. In Bank, the plaintiffs appealed a district court’s with-prejudice dismissal of their USCA11 Case: 23-13379 Document: 66-1 Date Filed: 02/13/2025 Page: 7 of 15

23-13379 Opinion of the Court 7 complaint for the failure to state a claim. 928 F.2d at 1109. There, we reasoned that, because a “complaint should not be dismissed under Fed. R. Civ. P. 12(b)(6) ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief’ . . . a district court should give a plaintiff an opportunity to amend his complaint instead of dismissing it.”

Bank, 928 F.2d at 1112. But we explained that, “if a more carefully drafted complaint could not state a claim under the [12(b)(6) stand- ard], dismissal with prejudice is proper” without first granting leave to amend. Id. On its own terms, Bank has no application at the summary judgment stage of a lawsuit. Bank was expressly limited to dismis- sals that—unlike summary judgments—are based on a complaint’s allegations. Specifically, we held in Bank that “[a] complaint should not be dismissed under [Rule] 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” See id. at 1111–12 (empha- sis added) (internal marks omitted). We later limited the Bank rule to pro se plaintiffs, explaining that the Bank rule allowed a plaintiff to “sit idly by as he awaited the district court’s determination with respect to a Rule 12(b)(6) motion to dismiss.” Wagner, 314 F.3d at 543 (emphasis added). And we have routinely applied the Bank rule in appeals involving Rule 12(b)(6) dismissals with prejudice, but never to a summary judgment. See Silberman v. Miami Dade Transit, 927 F.3d 1123, 1130, 1132–33 (11th Cir. 2019) (Rule 12(b)(6) dismissal); Woldeab v. Dekalb Cnty. Bd. of Educ., 885 F.3d 1289, 1290–91 (11th Cir. 2018) (same); Silva v. Bieluch, 351 F.3d 1045, 1046, 1048–49 USCA11 Case: 23-13379 Document: 66-1 Date Filed: 02/13/2025 Page: 8 of 15

8 Opinion of the Court 23-13379 (11th Cir. 2003) (same); O’Halloran v. First Union Nat. Bank of Fla., 350 F.3d 1197, 1206 (11th Cir. 2003) (same).

Even if the express holding of Bank itself did not answer this question, it would make little sense to apply the Bank rule at sum- mary judgment. The idea of Bank is that a dismissal with preju- dice—in response to a Rule 12(b)(6) motion—is too harsh a penalty for a remediable defect on the face of a complaint. But the same rationale does not apply at summary judgment because, at that stage, “we look beyond the complaint.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 976 (11th Cir. 2005) (emphasis added); see also Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2713 (4th ed. June 2024 update); Am. C.L. Union of Fla., Inc. v. Dixie County, 690 F.3d 1244, 1248 n.1 (11th Cir. 2012). Because the ques- tion of summary judgment does not turn on the facial sufficiency of a complaint’s allegations, there is no reason to provide a chance to amend as a matter of course before summary judgment is re- solved.

To be sure, we do not doubt that district courts have discre- tion to allow amendments to pleadings as a case progresses. A dis- trict court may allow an amendment even “after the time for amendment” has passed in its own scheduling order. See Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754, 761 (11th Cir. 1995). But the Bank rule does not require that a district court allow amendment at each and every stage of litigation—only in certain circumstances before a Rule 12(b)(6) dismissal with prejudice or the functional equiva- lent. Because Horton’s case was not resolved at the Rule 12(b)(6) USCA11 Case: 23-13379 Document: 66-1 Date Filed: 02/13/2025 Page: 9 of 15

23-13379 Opinion of the Court 9 stage, but at summary judgment, the Bank rule does not apply on its own terms.

We will now turn to Horton’s second argument—that the special report procedure should afford him a sua sponte right to amend prior to dismissal. This Court has recommended the use of special reports in pro se prisoner litigation for fifty years. See Hard- wick v. Ault, 517 F.2d 295, 298 (5th Cir. 1975); see also Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209-11 (11th Cir. 1981) (adopting as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981). We have suggested that spe- cial reports can “serve the useful functions of notifying the respon- sible state officials of the precise nature of the prisoner’s grievance and encouraging informal settlement of it, or, at the least, of en- couraging them to give the matter their immediate attention so that the case may [be] expeditiously . . . shaped for adjudication.”

Hardwick, 517 F.2d at 298. They provide detailed information to the courts that pro se imprisoned plaintiffs would otherwise have to de- velop on their own. And they help to resolve cases involving im- portant constitutional challenges to correctional practices.

We believe Horton’s argument misunderstands the pur- pose, nature, and benefits of an order requiring a special report.

With the input of federal judges, a committee of the judiciary de- veloped a model special report order and recommended its use in 1980. See Federal Judicial Center, Recommended Procedures for Han- dling Prisoner Civil Rights Cases in the Federal Courts (1980). The com- mittee explained that the special report procedure is a useful USCA11 Case: 23-13379 Document: 66-1 Date Filed: 02/13/2025 Page: 10 of 15

10 Opinion of the Court 23-13379 “supplement to the traditional methods of discovery” because “[t]raditional discovery techniques do not work very well” for pro se prisoners who cannot, due to their confinement, conduct depo- sitions or the like. Id. at 16–18, 81. To that end, the main point of the special report order is to require the defendants to produce ev- idence to the plaintiff and the court, thereby progressing litigation beyond arguments about the sufficiency of the prisoner’s allega- tions and directly to a consideration of evidence at summary judg- ment or trial.

Because there is no reason to apply the Bank rule at the sum- mary judgment stage, it also makes no sense to require a Bank equivalent as part of the special report procedure. No doubt be- cause of our urging, district courts in this Circuit have required spe- cial reports in pro se prisoner litigation for decades. See, e.g., Kelly v. Ambroski, 97 F. Supp. 3d 1320, 1327 (N.D. Ala. 2015); Harris v. Dug- ger, 757 F. Supp. 1359, 1364 (S.D. Fla. 1991); Jackson v. Wharton, 687 F. Supp. 595, 596 (M.D. Ga. 1988) (collecting cases). But we are not aware that any have ever provided for sua sponte amendment after converting a special report into a summary judgment motion and ruling on that motion. Instead, because the very function of the special report procedure is to advance claims to the evidentiary stage, the special report procedure does not mandate any particular rule about pleadings or testing the facial sufficiency of a complaint.

Horton’s final argument—that the district court’s failure to sua sponte allow an amendment is unfair on the facts of his case—is similarly unavailing. At the summary judgment stage, fairness to USCA11 Case: 23-13379 Document: 66-1 Date Filed: 02/13/2025 Page: 11 of 15

23-13379 Opinion of the Court 11 pro se litigants requires that they be informed that the court is con- sidering summary judgment and that they be allowed time to mar- shal evidence in support of their allegations. As a general matter, a court must “giv[e] notice and a reasonable time to respond” before it “consider[s] summary judgment on its own.” Fed. R. Civ. P. 56(f).

And we have recognized that “a court should be particularly careful to ensure proper notice to a pro se litigant.” Smith v. Sch. Bd. of Or- ange Cnty., 487 F.3d 1361, 1368 (11th Cir. 2007) (internal marks omitted).

Here, Horton received both notice and an opportunity to respond. The magistrate judge explained to Horton that the special report would be converted to a motion for summary judgment. He instructed Horton that “a plaintiff against whom a motion for sum- mary judgment is filed must oppose that motion” with evidence, that an affidavit must be “sworn to and subscribed before a notary public,” and that a declaration must be “signed under penalty of perjury.” He notified Horton that the granting of the motion would represent a final adjudication and potentially foreclose sub- sequent litigation. And he gave Horton two months to respond.

Under our caselaw, this process was more than sufficient.

For example, in Coleman v. Smith, we deemed sufficient a district court’s instruction to a pro se plaintiff “that the defendants’ report might be treated as a motion for summary judgment,” “that coun- ter-affidavits were necessary to rebut the matters presented by the defendants,” and “that defendants’ motion for summary judgment will be presented to the district court for final ruling.” 828 F.2d 714, USCA11 Case: 23-13379 Document: 66-1 Date Filed: 02/13/2025 Page: 12 of 15

12 Opinion of the Court 23-13379 716–17 (11th Cir. 1987) (internal marks omitted). We reasoned that “the clear implication of telling the plaintiff that he must ‘rebut’ statements of the defendant and that the district court would give a ‘final ruling’ as to summary judgment is that the defendants’ re- port might be accepted as the truth and that the ruling would be ‘final[]’ unless plaintiff responded.” Id. at 716.

In short, the problem here is not that Horton needed sua sponte leave to amend—the problem is that Horton needed to file evidence in response to a motion for summary judgment, which the magistrate judge specifically instructed him to do. Horton could have requested leave to amend his complaint—indeed, he was not under any time pressure to proceed without amendment, he knew how to amend, and he had already amended once. In- stead, Horton ignored the magistrate judge’s instructions and re- sponded to the defendants’ evidentiary materials with an unsigned declaration that included new allegations. We cannot say that Hor- ton’s failure to follow instructions makes the result unfair.

IV.

For the foregoing reasons, we AFFIRM the judgment of the district court.

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23-13379 WILSON, J., Dissenting 1 WILSON, Circuit Judge, Dissenting: As the majority explains, our decision in Bank v. Pitt requires the district court to give a plaintiff “at least one chance to amend the complaint” before dismissing the case (known as the Bank Rule). 928 F.2d 1108, 1112 (11th Cir. 1991) (per curiam) (emphasis added). But this court limited the Bank Rule only to pro se plain- tiffs, by holding that “[a] district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plain- tiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before the district court.” See Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc). Today, the majority explicitly cabins Bank and Wagner to Rule 12(b)(6) dismissals with prejudice and chooses not to ex- tend the Bank Rule to the summary judgment context. This seems like a logical restriction. But there is a wrinkle that makes the re- striction of the Bank Rule problematic—the use of special reports by district courts.

Here, Michael Horton filed his complaint alleging violations of his constitutional rights, specifically related to body-cavity searches of him during an institution-wide search. The district court ordered the officers named in Horton’s complaint to respond with an “Answer and Special Report.” This special report required the officers to conduct discovery and provide sworn statements and medical records.

The only case that approves the use of special reports is one from the former Fifth Circuit. See Hardwick v. Ault, 517 F.2d 295, USCA11 Case: 23-13379 Document: 66-1 Date Filed: 02/13/2025 Page: 14 of 15

2 WILSON, J., Dissenting 23-13379 (5th Cir. 1975). But the Fifth Circuit specifically explained that the use of these reports should be careful not to “divest the [Sec- tion] 1983 plaintiff of any of the rights he enjoys under the Federal Rules of Civil Procedure.” Id. Although we have adopted decisions from the old Fifth Circuit from before October 1, 1981, Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court hasn’t explicitly endorsed the practice in the over forty years that we have existed as a court.

Even still, the use of special reports is common practice in Alabama.1 Typically, once the district court receives this special report, the court converts that report to a motion for summary judgment. Then, the court typically gives the often pro se prisoner plaintiff, like Horton, a chance to submit only his own affidavits to counter those of the officers. The district court’s order here does not allow the plaintiff to conduct any discovery or to depose the officers.

While I understand the need for district courts to manage their dockets and address cases promptly, the use of special reports removes a consequential part of litigation—discovery—from those

1 See, e.g., Kister v. Jackson, No. 2:20-CV-757, 2023 WL 4675949, at *1 (M.D. Ala. Apr. 25, 2023), report and recommendation adopted, No. 2:20-CV-757, 2023 WL 4673440 (M.D. Ala. July 20, 2023); Inniss v. Finklea, No. CV 19-0295, 2022 WL 561656, at *1 (S.D. Ala. Jan. 18, 2022), report and recommendation adopted, No. CV 19-00295, 2022 WL 551259 (S.D. Ala. Feb. 23, 2022); Favors v. Gates, No. 7- 14-CV-01733, 2016 WL 8578160, at *1 (N.D. Ala. Nov. 17, 2016), report and recommendation adopted, No. 7-14-CV-01733, 2017 WL 1047637 (N.D. Ala. Mar.

20, 2017).

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23-13379 WILSON, J., Dissenting 3 who are trying to navigate a system without help from a lawyer— pro se prisoners. I am wary of a court-imposed system that re- moves a large part of litigation for litigants who are already at a disadvantage. With that, I would find that the district court erred in sua sponte converting the special report to a motion for sum- mary judgment.

The best practice 2 would have been for the district court to allow Horton the opportunity to file an amended complaint. Be- cause the district court did not do that, I would have remanded the case to allow Horton an opportunity to amend. Thus, I respect- fully dissent.

2 Nothing prevented the district court from allowing Horton to amend his complaint even after previously construing the special report as a motion for summary judgment. See Loyde v. Brown, No. CV 18-0244, 2019 WL 1757530, at *1 (S.D. Ala. Apr. 19, 2019) (withdrawing order converting the defendant’s answer and special report to a motion for summary judgment and directing the pro se prisoner-plaintiff to amend his complaint).