Pro Se Litigant Given Opportunity to Cure Inadequate Complaint

In Lozano v. Schubert, the U.S. Fifth Circuit Court addressed whether the district court properly granted the defendant’s Motion for Summary Judgment.

Eric Lozano, filed an action under 42 USC §1983 against employees of the Texas Department of Criminal Justice who worked at a prison where he was housed. Lozano, who is Muslim, asserted that he was not provided with kosher meals even though he alleged Jewish inmates received kosher meals.

On appeal, the U.S. Fifth Circuit Court addressed whether the district court granted the defendant’s Motion for Summary Judgment properly. The Fifth Circuit reversed and remanded, finding that the district court erred by not giving Lozano an opportunity to correct the deficiencies in his Complaint. The Fifth Circuit held that the district court denied Lozano an opportunity to cure the inadequacies in his pleading, and that the district court failed to notify Lozano before dismissing his lawsuit with prejudice. The Fifth Circuit instructed that because Lozano may have a plausible claim that his Constitutional rights had been violated and that it is possible that he has pled or could plead an equal protection claim, the Court instructed the district court to give Lozano an adequate opportunity to cure any inadequacies in his Complaint.

In defending this type of case, consideration should be given as to whether the court has allowed sufficient opportunity to cure any deficiencies in a complaint before using that complaint as a basis for seeking summary judgment.

Lozano v. Schubert, 21-20010 (5 Cir. July 22, 2022)