Bey Ex Rel. Washington v. Hillsborough County

Case: 16-10608 Date Filed: 02/06/2017 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10608
Non-Argument Calendar
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D.C. Docket No. 8:15-cv-00545-SDM-EAJ
NASSOR MOORUTS BEY,
ex relatiore Victor Leon Washington, in Propria Persona, sui juris,
NURA A.N.H. WASHINGTON BEY,
ex relatione Nura A. Washington,
Plaintiffs-Appellants,
versus
HILLSBOROUGH COUNTY,
DAVID GEE,
d/b/a Sheriff, Chief Executive & Law Enforcement Officer of the County, et al.,
CITY OF TAMPA et al.,
BOB BUCKHORN,
d/b/a Mayor, In individual capacity,
STEPHEN HILES,
Badge # 47126, In individual capacity,
W.C. HARRISON,
Badge # 47304, In individual capacity,
KRISTEN BALL,
ELISE ZAHN,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 6, 2017)
Before MARCUS, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Nassor Mooruts Bey and Nura A.N.H. Washington Bey appeal from the
district court’s dismissal of their claims against Kristen Ball and Elise Zahn,
Hillsborough County Sheriff’s Jail personnel. 1 The district court determined that
the Beys had failed to serve Ball and Zahn within the time required by Federal
Rule of Civil Procedure 4(m) or the court’s order giving the Beys an additional 20
days to complete service. Because the district court did not abuse its discretion in
1
In an earlier order, the district court dismissed the Beys’ claims against other
defendants. Although the Beys argue in their briefs that the district court erred in dismissing
these claims against the other defendants, their notice of appeal identified only the district court’s
order dismissing their claims against Ball and Zahn. “Although we generally construe a notice
of appeal liberally, we will not expand it to include judgments and orders not specified unless the
overriding intent to appeal these orders is readily apparent on the face of the notice.” Osterneck
v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1528 (11th Cir. 1987). Here, the Beys’ notice of
appeal does not on its face manifest an overriding intent to appeal any orders but those relating to
the Beys’ claims against Ball and Zahn. Although we liberally construe a pro se party’s
pleadings, we “require[] them to conform to procedural rules.” Moton v. Cowart, 631 F.3d 1337,
1340 n.2 (11th Cir. 2011). We will therefore not review any orders that were not specified in the
Beys’ notice of appeal. See Fed. R. App. P. 3(c)(1)(B) (requiring a notice of appeal to “designate
the judgment, order, or part thereof being appealed”). But even if we were to consider the Beys’
improperly appealed claims, they fail because the district court properly dismissed them for
failure to state a claim upon which relief could be granted.
2
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dismissing the claims on the ground that the Beys gave no adequate reason for
their failure to timely serve Ball and Zahn, we affirm.
The Beys allege in this action that police officers stopped and unlawfully
searched, arrested, and detained Mr. Bey on his way to work, unlawfully
confiscated his vehicle, and subjected him to various other constitutional
deprivations. On August 21, 2015, the Beys filed a third amended complaint
adding claims against defendants Ball and Zahn, alleging that they violated his
Eighth Amendment rights by subjecting him to degrading and unnecessary
treatment.
After filing the third amended complaint, the Beys failed to serve Bell and
Zahn within 120 days as Rule 4(m) required. 2 At that point, the district court
entered an order directing the Beys to serve Ball and Zahn and file proofs of
service by January 26, 2016. When the Beys failed to meet this deadline, the
district court dismissed their claims against Ball and Zahn.
“[W]e review for abuse of discretion a court’s dismissal without prejudice
of a plaintiff's complaint for failure to timely serve a defendant under Rule 4(m).”
Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286 (11th Cir. 2009)
(internal quotation marks omitted). We will “affirm unless we find that the district
2
Subsequently, Rule 4(m) was amended to reduce the period to 90 days. See Fed. R.
Civ. P. 4(m) advisory committee’s notes to 2015 amendment.
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court has made a clear error of judgment, or has applied the wrong legal standard.”
Id. (internal quotation marks omitted).
Under the applicable Federal Rules of Civil Procedure in effect at the
time, the Beys had 120 days to serve their summons and complaint on Ball and
Zahn. See Fed. R. Civ. P. 4(c)(1) (pre-2015 amendments). Rule 4(m) provided
that if a plaintiff failed to serve a complaint within 120 days, “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) (pre-2015 amendments). Rule 4(m) requires a court to
extend the time for service, however, if the plaintiff establishes “good cause for the
failure.” 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 Cty. Comm’rs, 476 F.3d 1277, 1281 (11th Cir. 2007)
(alteration in original) (internal quotation marks omitted).
On appeal, the Beys argue that the district court abused its discretion by
dismissing their claims because they were in the process of serving Ball and Zahn
and have continued to try to do so. But the record reflects that the Beys made only
one attempt to serve Ball and Zahn, which was unsuccessful.3 Because the Beys
3
The Beys argue that Ball and Zahn’s joinder was not necessary to “accord complete
relief among existing parties” under Federal Rule of Civil Procedure 19(a), suggesting that even
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never served Ball and Zahn within the time required by Rule 4(m) or the district
court’s extension and have failed to show good cause for their failure to do so, the
district court did not abuse its discretion in dismissing the Beys’ claims against
Bell and Zahn.
For these reasons, the district court’s dismissal of the Beys’ claims against
Ball and Zahn is affirmed.
AFFIRMED.
if they failed to serve Bell and Zahn their claims against the remaining defendants should be
allowed to proceed. But as we explained above, the Beys’ notice of appeal limited this appeal to
the district court’s order dismissing their claims against Bell and Zahn.
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