Tiffany Roberts v. Scott Anderson, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12824
Non-Argument Calendar
____________________
TIFFANY ROBIN ROBERTS,
Plaintiff-Appellant,
versus
SCOTT ANDERSON,
CHARLES ELLIOTT,
CHRIS PRIEST,
BILLY C. BURNEY,
DAVID TODD ROBERTS,
Defendants-Appellees.
____________________
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2 Opinion of the Court 23-12824
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 5:22-cv-00748-LCB
____________________
Before J ILL PRYOR , NEWSOM , and BRANCH , Circuit Judges.
PER CURIAM:
Tiffany Robin Roberts, proceeding pro se, appeals the dis-
trict court’s dismissal of her 42 U.S.C. § 1983 complaint. The dis-
trict court granted one defendant’s motion to dismiss for failure to
state a claim and sua sponte dismissed the remaining claims against
the other defendants for failure to perfect service under Federal
Rule of Civil Procedure 4(m). After careful review of the parties’
arguments, we affirm.1
I
We construe a pro se litigant’s pleadings liberally; however,
a pro se litigant is required to conform to procedural rules. Albra v.
Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). Rule 4(c)(1) provides
that “[a] summons must be served with a copy of the complaint,”
1 We review for abuse of discretion a district court’s sua sponte dismissal with-
out 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). We review a district court’s ruling on a Rule 12(b)(6) motion de
novo, “accepting the allegations in the complaint as true and construing them
in the light most favorable to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335
(11th Cir. 2003).
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23-12824 Opinion of the Court 3
and “[t]he plaintiff is responsible for having the summons and com-
plaint served within the time allowed by Rule 4(m).” Fed. R. Civ.
P. 4(c)(1). Rule 4(m), in turn, provides:
If a defendant is not served within 90 days after the
complaint is filed, the court—on motion or on its
own after notice to the plaintiff—must dismiss the ac-
tion without prejudice against that defendant or or-
der that service be made within a specified time. But
if the plaintiff shows good cause for the failure, the
court must extend the time for service for an appro-
priate period.
“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) (quotation marks omitted). Absent a showing
of good cause, “the district court must still consider whether any
other circumstances warrant an extension of time based on the
facts of the case.” Id. at 1282. Circumstances warranting an exten-
sion of time include when the statute of limitations would prevent
refiling or when the defendant evades service. Bilal v. Geo Care,
LLC, 981 F.3d 903, 919 (11th Cir. 2020). “Only after considering
whether any such factors exist[,] may the district court 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. The running of the statute of limitations must be
considered but does not require that a district court extend the time
for service of process under Rule 4(m). Id.
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4 Opinion of the Court 23-12824
“Where a dismissal without prejudice has the effect of pre-
cluding a plaintiff from refiling [her] claim due to the running of
the statute of limitations, the dismissal is tantamount to a dismissal
with prejudice.” Mickles v. Country Club Inc., 887 F.3d 1270, 1280
(11th Cir. 2018) (quotation marks omitted). A dismissal with prej-
udice is an extreme sanction that may be properly imposed only
when: “(1) a party engages in a clear pattern of delay or willful con-
tempt (contumacious conduct); and (2) the district court specifi-
cally finds that lesser sanctions will not suffice.” Betty K Agencies,
Ltd. v. M/V MONADA, 432 F.3d 1333, 1337–38 (11th Cir. 2005) (quo-
tation marks omitted). Moreover, dismissal with prejudice is con-
sidered more appropriate in a case where a party, as distinct from
counsel, is culpable. Id. at 1338.
The statute of limitations for § 1983 claims is measured by
limitations periods for personal-injury torts in the state where the
action is brought. Wallace v. Kato, 549 U.S. 384, 387 (2007). In Ala-
bama, the governing statute of limitations is two years. McNair v.
Allen, 515 F.3d 1168, 1173 (11th Cir. 2008).
Here, the district court did not abuse its discretion in dis-
missing the claims against the defendants pursuant to Rule 4(m)
because Roberts failed, despite the court’s multiple warnings and
extensions to perfect service by serving the defendants with sum-
monses even more than a year after the filing of the initial com-
plaint. See Fed. R. Civ. P. 4(c)(1), (m). Additionally, in reaching its
decision, the district court properly considered circumstances
which could have warranted a further extension of time, such as
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23-12824 Opinion of the Court 5
the fact that the statute of limitations had run on Roberts’s claims.
Lepone-Dempsey, 476 F.3d at 1282. While Roberts may have be-
lieved that issuing a subpoena to each defendant satisfied her obli-
gations, a pro se litigant is required to conform to procedural rules
such as Rule 4, and Roberts failed to do so by failing to serve the
defendants with summonses or providing proof of service despite
the district court’s repeated warnings and extensions. Albra, 490
F.3d at 829; Fed. R. Civ. P. 4(c)(1), (l)(1).
II
Turning to the district court’s dismissal of Roberts’s claims
against defendant Billy Burney under Rule 12(b)(6), we may “affirm
the judgment of the district court on any ground supported by the
record, regardless of whether that ground was relied upon or even
considered by the district court.” Kernel Records Oy v. Mosley, 694
F.3d 1294, 1309 (11th Cir. 2012).
Further, we will not reverse where an alleged error is harm-
less. See Equal Emp’t Opportunity Comm’n v. STME, LLC, 938 F.3d
1305, 1322–23 (11th Cir. 2019). Pursuant to Fed. R. Civ. P. 61, a
harmless error is one that does not affect a party’s substantial
rights, and thus, is not a basis for vacating or modifying that judg-
ment. Fed. R. Civ. P. 61. Accordingly, the appellant bears the bur-
den to show an error was not harmless. In re Club Assocs., 951, F.2d
1223, 1234 n. 13 (11th Cir. 1992).
Even assuming arguendo that the district court erred in dis-
missing Roberts’s claims against Burney under Rule 12(b)(6), as
Roberts contends, its error was harmless as the dismissal of the
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6 Opinion of the Court 23-12824
claims against Burney would have been appropriate under Rule
4(m). And, as such, a dismissal under Rule 4(m) would have been
tantamount to a dismissal with prejudice as the statute of limita-
tions on Roberts’s claims had run. See Mickles, 887 F.3d at 1280;
STME, LLC, 938 F.3d at 1322–23; Kernel Records Oy, 694 F.3d at 1309.
AFFIRMED.
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