Debbie Dash v. Arthur Chasen, et al

Filing

Opinion issued by court as to Appellant Debbie Lloyd Dash. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12203
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cv-00039-JRH-WLB
DEBBIE LLOYD DASH,
Plaintiff-Appellant,
versus
DR. ARTHUR B. CHASEN,
DEPARTMENT OF THE ARMY,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(January 10, 2013)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Debbie Dash, proceeding pro se, appeals the district court’s sua sponte
dismissal without prejudice of her complaint, brought under the Federal Tort

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Claims Act (“FTCA”), 28 U.S.C. § 1346(b), for failure to effect timely service on
the defendants in accordance with Federal Rule of Civil Procedure 4. After
review, we affirm.
I. BACKGROUND
A.

Federal Rule of Civil Procedure 4
Under Rule 4, “[t]he plaintiff is responsible for having the summons and

complaint served within the time allowed by Rule 4(m).” Fed. R. Civ. P. 4(c)(1).
Rule 4(m) provides 120 days for service as follows:
Time Limit for Service. If a defendant is not served within 120 days
after the complaint is filed, the court—on motion or on its own after
notice to the plaintiff—must dismiss the action without prejudice
against that defendant or order that service be made within a specified
time.
Fed. R. Civ. P. 4(m). Rule 4(m) also provides that if the plaintiff shows “good
cause” for the failure to serve within that 120 days, the court “must extend the time
for service for an appropriate period.” Id. “Good cause exists only when some
outside factor, such as reliance on faulty advice, rather than inadvertence or
negligence, prevented service.” Lepone-Dempsey v. Carroll Cnty. Comm’rs, 476
F.3d 1277, 1281 (11th Cir. 2007) (internal quotation marks and alteration omitted).
Rule 4 further provides instructions on how to serve different types of
defendants. For example, to serve the United States, a party must deliver a copy of
the summons and complaint to (1) the U.S. Attorney for the district where the
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action is brought, and (2) the U.S. Attorney General of the United States at
Washington, D.C. Fed. R. Civ. P. 4(i)(1). To serve a federal agency, a plaintiff
must serve the United States, as described above, and also send a copy of the
summons and complaint to the agency itself. Id. 4(i)(2).
With this background, we turn to the facts of the present case.
B.

Dash’s Complaint and the District Court’s Initial Instructions
On March 25, 2011, Dash filed her complaint in the district court against Dr.

Arthur Chasen and the Department of the Army (“Army”), alleging medical
malpractice. Dash’s malpractice claim arose out of her surgical procedure in
January 2007 at the Army Medical Center in Fort Gordon, Georgia. Dash alleged
that Dr. Chasen accidentally tore a muscle in her throat while performing the
surgery; that she has suffered and will continue to suffer pain and severe medical
complications as a result of this throat injury; and that Dr. Chasen misrepresented
to her the scope and long-term consequences of the injury he caused.
On April 20, 2011, given Dash’s pro se status, a magistrate judge issued an
order to provide Dash with “some basic instructions regarding the development
and progression of this case.” The order informed Dash that she was responsible
for serving process on the defendants. Because it was not clear in what capacity
Dr. Chasen was being sued, the order instructed Dash on how to serve both
individuals and government entities. With regard to serving government entities,
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the court’s order instructed Dash that she would need to deliver a summons and
complaint to (1) the civil process clerk at the office of the U.S. Attorney for the
Southern District of Georgia; (2) the Attorney General of the United States, Eric H.
Holder, Jr.; and (3) the officer or agency being sued. The order further notified
Dash that she had to serve the defendants within 120 days from the date she filed
her complaint, pursuant to Federal Rule of Civil Procedure 4(m), and that failure to
do so would result in dismissal. The order directed the clerk to attach a copy of
Rule 4 to Dash’s copy of the order.
On August 1, 2011, more than 120 days after filing her complaint, Dash
filed a “Response” to the magistrate judge’s April 20 instructions order, stating that
she was bringing her FTCA suit against the Army only, and not against Dr. Chasen
personally. Dash did not mention service of process in her “Response.”
C.

August 4, 2011 Show Cause Order
On August 4, 2011, the magistrate judge issued an order directing Dash to

show cause as to why her suit should not be dismissed for failure to effect service.
The magistrate judge stated that there was no evidence in the record that any of the
defendants had been served. The magistrate judge further directed the Clerk of
Court to attach a copy of Rule 4(m) to Dash’s copy of the order.
D.

August 12, 2011 Extension of Time to Effect Service

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On August 12, 2011, Dash responded to the show-cause order by moving for
an extension of time to effect service. Dash stated that, since the filing of her
complaint, she had experienced several physical and mental problems stemming
from the throat injury caused by Dr. Chasen. On August 15, 2011, the magistrate
judge granted Dash’s motion for an extension, concluding that she had
demonstrated good cause for failure to serve process. The magistrate judge gave
Dash an additional 30 days (until September 14) to serve the defendants.
On August 24, 2011, Dash filed in the district court a one-page “Notice of
Service on Defendants.” In this notice, Dash asserted that on July 30, 2011, she
had sent a “[n]otice of a lawsuit,” a request to waive service of summons, and a
waiver of the service of summons, via certified mail, to the “Army Headquarters
Dwight David Eisenhower Army Medical Center” at Fort Gordon, Georgia. To
corroborate this assertion, Dash attached a Certified Mail receipt from the U.S.
Postal Service.
E.

Dismissal of Dash’s Lawsuit
On September 28, 2011, the magistrate judge issued a Report and

Recommendation (“R&R”), recommending that Dash’s complaint be dismissed
without prejudice for failure to effect timely service. The magistrate judge stated
that, notwithstanding Dash’s “Notice of Service on Defendants,” there was no
proof of proper service in the record. The magistrate judge noted that Dash had
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not offered proof that she had served the civil process clerk of the U.S. Attorney
for the Southern District of Georgia or the Attorney General of the United States,
as instructed in the magistrate judge’s April 20 instructions order.
The magistrate judge recognized that (1) certain factors, such as the running
of a statute of limitations, may justify an extension of time for service even absent
good cause, and (2) in the present case, the applicable statute of limitations might
bar Dash’s action upon refiling. However, the magistrate judge found no reason to
once more extend time for service. The magistrate judge explained that, although
Dash had filed her complaint six months previously and had already received an
extension of time, there was no evidence that she “has made an attempt to properly
effect service on Defendants.” The magistrate judge stated that he had warned
Dash on two separate occasions that failure to effect service would lead to the
dismissal of her case. Accordingly, the magistrate judge recommended that Dash’s
case be dismissed without prejudice.
Dash filed several objections to the magistrate judge’s R&R. Among other
things, Dash stated that she had inquired with the Clerk of Court about proper
service, but the clerk never informed her that she needed to serve the Attorney
General. Dash also explained that she mistakenly served the Clerk of Court for the
Southern District of Georgia, rather than the civil process clerk of the U.S.

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Attorney for the Southern District of Georgia, because she thought that the two
entities were the same.
The district court overruled Dash’s objections to the R&R, finding, inter
alia, that her assertion of ignorance as to whom service was due was contradicted
by the magistrate judge’s April 20 instructions order, which had expressly
explained the proper procedures for effecting service. The district court adopted
the magistrate judge’s R&R and dismissed Dash’s complaint without prejudice.
Dash now appeals.
II. STANDARDS OF REVIEW
We review for abuse of discretion a district court’s “dismissal without
prejudice of a plaintiff’s complaint for failure to timely serve a defendant under
Rule 4(m).” Lepone-Dempsey, 476 F.3d at 1280. We also review for abuse of
discretion a court’s decision to grant or deny an extension of time under Rule 4(m).
See id.1
III. DISCUSSION
A.

Dr. Chasen
1

We recognize that Dash was proceeding pro se, and for that reason may have had
difficulty understanding the federal procedural rules governing service of process. However,
while we construe the pleadings of pro se litigants liberally, we still require them to conform to
procedural rules that, in this case, were explained by the magistrate judge. Albra v. Advan, Inc.,
490 F.3d 826, 829 (11th Cir. 2007). Thus, Dash’s pro se status alone did not warrant an
extension of time to serve process. See id. (affirming the dismissal of a pro se plaintiff’s
complaint against one of the defendants for lack of proper service under Rule 4).

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The record shows that Dash voluntarily abandoned her suit against Dr.
Chasen. In her August 1, 2011 “Response” to the magistrate judge’s April 20
instructions order, Dash stated that she was not suing Dr. Chasen, but only the
Army. Furthermore, in her objections to the magistrate judge’s R&R, Dash
explained that she did not remove Dr. Chasen as defendant from the style of her
case filings only because the court clerk advised her to leave him in the style to
match her other filings. Additionally, in her brief to this Court, Dash does not
argue that she either served, or attempted to serve, process on Dr. Chasen.
Therefore, we affirm the district court’s dismissal of Dash’s complaint with regard
to Dr. Chasen.
B.

The Army
Dash does not dispute that she never served the U.S. Attorney for the

Southern District of Georgia or the U.S. Attorney General, though the magistrate
judge’s instructions order advised that both must be served to sue a government
entity.
Dash also failed to show good cause for her failure to properly effect service
after the district court granted her a 30-day extension. She has not shown that her
failure to serve the U.S. Attorney and the U.S. Attorney General resulted from
some outside factor rather than mere inadvertence or negligence. See LeponeDempsey, 476 F.3d at 1281.
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We recognize Dash’s objection to the magistrate judge’s R&R that she
discussed service requirements with the Clerk of Court, and that the clerk never
told her to serve the Attorney General. However, the magistrate judge’s April 20
instructions order clearly explained to Dash that she should send her summons and
complaint to both the civil process clerk of the U.S. Attorney for the Southern
District of Georgia and the U.S. Attorney General Eric Holder, Jr., in addition to
the agency being sued (the Army), as required by Rule 4(i). Moreover, along with
the April 20 order, Dash received a copy of Rule 4, which lays out the
requirements for serving the United States and its entities. See Fed. R. Civ. P. 4(i).
Nothing in the record indicates that the Clerk of Court affirmatively misled Dash
as to who she was required to serve in addition to the Army. Indeed, Dash
admitted that she mistakenly served the Clerk of Court rather than the U.S.
Attorney due to her own confusion of the two entities.
Although Dash failed to demonstrate good cause for her failure to properly
effect service, this does not end the analysis. If the plaintiff fails to show good
cause, “the district court must still consider whether any other circumstances
warrant an extension of time based on the facts of the case.” Lepone-Dempsey,
476 F.3d at 1282. For example, the district court may grant an extension “if the
applicable statute of limitations would bar the refiled action, or if the defendant is
evading service or conceals a defect in attempted service.” Horenkamp v. Van
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Winkle & Co., Inc., 402 F.3d 1129, 1132-33 (11th Cir. 2005) (quoting Fed. R. Civ.
P. 4(m) advisory committee’s note (1993 amendments)). After considering
whether any such factors exist, the district court may “exercise its discretion and
either dismiss the case without prejudice or direct that service be effected within a
specified time.” Lepone-Dempsey, 476 F.3d at 1282.
In this case, the magistrate judge’s September 28 R&R, adopted by the
district court, recognized that Dash’s action likely would be time-barred upon
refiling by the applicable statute of limitations. However, as the district court
noted, the April 20 instructions order gave Dash clear directions on how to
properly serve the government, and Dash had already received one extension of
time to effect service. Thus, we cannot say that the district court abused its
discretion in finding that a second extension was unwarranted, despite the statute
of limitations. See Horenkamp, 402 F.3d at 1133 (stating that “the running of the
statute of limitations does not require that a district court extend the time for
service of process” under Rule 4(m)); Rasbury v. IRS (In re Rasbury), 24 F.3d 159,
168 (11th Cir. 1994) (“[T]he abuse of discretion standard allows a range of choice
for the district court, so long as that choice does not constitute a clear error of
judgment.” (internal quotation marks omitted)).2

2

In her brief to this Court, Dash suggests that she failed to effect proper service because
her medications caused her to be confused, forgetful, and unable to follow instructions.
However, nothing in the record indicates that she brought this factor to the district court’s
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In light of the foregoing, we affirm the dismissal of Dash’s lawsuit.
AFFIRMED.

attention after receiving an extension of time to effect service, and she did not mention this factor
in her objections to the magistrate judge’s R&R. Thus, the district court had no reason to
consider these mental issues in deciding whether to dismiss her case.

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