Cathleen Gary v. DeKalb County Govt.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 18, 2006
No. 05-13919 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00158-CV-CAP-1
CATHLEEN GARY,
Plaintiff-Appellant,
versus
DEKALB COUNTY GOVERNMENT,
VERNON JONES, CEO,
DEKALB COUNTY SHERIFF,
THOMAS BROWN,
DEKALB POLICE DEPARTMENT, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 18, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Cathleen Gary filed her pro se complaint on November 23, 2004, alleging
that various government entities and employees violated her civil rights. See 42
U.S.C. § 1983. The district court, sua sponte, dismissed Gary’s claim for failure to
serve the defendants with a copy of the summons and complaint within 120 days of
filing her complaint. See Fed. R. Civ. P. 4(m). Gary now appeals that dismissal,
and we review for abuse of discretion. Brown v. Nichols, 8 F.3d 770, 775 (11th
Cir. 1993).
Gary argues that the district court did not provide her with notice before it
dismissed her complaint and that she could show good cause for the delay because
her delay was based on improper advice from the district court. Rule 4(m) states,
“If service of the summons and complaint is not made upon a defendant within 120
days after the filing of the complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall dismiss the action without prejudice . . .”
(emphasis added). Because there is no evidence in the record that Gary was given
notice and an opportunity to “show[] good cause for the failure” to serve the
defendants, Fed. R. Civ. P. 4(m), the district court abused its discretion when it
dismissed Gary’s claim. We vacate the ruling of the district court and remand for
further proceedings in accordance with Rule 4(m).
VACATED and REMANDED.
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