Byron Wendell Phillips v. The Life Property Management Services, LLC, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11350
Non-Argument Calendar
____________________
BYRON WENDELL PHILLIPS,
Plaintiff-Appellant,
versus
THE LIFE PROPERTY MANAGEMENT SERVICES, LLC,
TONYA CARTER,
Agent, The Life Property Management Services, LLC,
3321PEPPERTREE CIRCLE DECATUR LLC,
other Crystal Point Apartments,
REGISTERED AGENTS INC.,
NORTHWEST REGISTERED AGENT, LLC,
BILL HAVRE,
CEO, Northwest Registered Agent, LLC,
QUICK DROP IMPOUNDING, TOWING & RECOVERY, INC.,
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2 Opinion of the Court 21-11350
TENESHA THOMAS,
Registered Agent, Quick Drop Impounding,
Towing & Recovery, Inc.,
JOHN DOE,
Tow Truck Driver,
CURTIS MCMURRAY,
CEO, JEFFREY L. MANN, ESQ.,
Dekalb County Sheriff; (Individual Capacity),
JAMES W. CONROY,
Dekalb County Police Chief (Individual Capacity),
OFFICER MORGAN,
South Precinct (Individual Capacity),
OFFICER HARRIS,
Badge #3303, South Precinct, (Individual Capacity), et al.,
DEKALB, COUNTY OF,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-00812-SDG
____________________
Before J ILL PRYOR , BRANCH, and BLACK , Circuit Judges.
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21-11350 Opinion of the Court 3
PER CURIAM:
Byron Wendell Phillips, proceeding
pro se, appeals the
dismissal of his 42 U.S.C. § 1983 action for defective service and
failure to state a claim upon which relief may be granted. Liberal-
ly construed, his allegations assert the appellees violated his Four-
teenth Amendment due process rights when they towed his un-
registered car pursuant to the terms of his apartment lease
agreement, failed to secure its return, and failed to properly rec-
ord the investigation into this allegedly wrongful towing. After
review,1 we affirm the district court.
I. DEFECTIVE SERVICE
Under Rule 4, a plaintiff must serve the summons and the
complaint to each defendant within 90 days after the complaint is
filed. Fed. R. Civ. P. 4(c), 4(m). If service is not effectuated with-
in 90 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). Service on an individual defendant
must be made pursuant to state law for serving summons or in
one of the following three ways:
1 We review a district court’s dismissal for insufficient service of process for
abuse of discretion.
Lepone-Dempsey v. Carroll Cty. Comm’rs, 476 F.3d
1277, 1280 (11th Cir. 2007). We review a district court’s dismissal for failure
to state a claim under Rule 12(b)(6)
de novo.
South Fla. Water Mgmt. Dist.
v. Montalvo, 84 F.3d 402, 406 (11th Cir. 1996).
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4 Opinion of the Court 21-11350
(A) delivering a copy of the summons and of the
complaint to the individual personally;
(B) leaving a copy of each at the individual’s dwell-
ing or usual place of abode with someone of suitable
age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized
by appointment or by law to receive service of pro-
cess.
Fed. R. Civ. P. 4(e);
see O.C.G.A. § 9-11-4(e)(7) (providing for the
same three methods of personal service of an individual defend-
ant).
Likewise, Georgia law does not permit a plaintiff to serve
only by mail. O.C.G.A. § 9-11-4(e);
see also KMM Indus., Inc. v.
Prof’l Ass’n, Inc., 297 S.E.2d 512, 513 (Ga. 1982). A plaintiff
properly serves a corporation by personally delivering to the cor-
poration’s officer or agent a summons and a copy of the com-
plaint, and mailing a copy of each to the defendant, within the
time allowed by Rule 4(m). Fed. R. Civ. P. 4(c)(1), (h)(1);
see also
O.C.G.A. § 9-11-4(e)(1)(A). If service cannot be effectuated that
way, the plaintiff may serve the Secretary of State and affirm that
copies have been mailed to the corporation’s last registered ad-
dress. O.C.G.A. § 9-11-4(e)(1)(A).
However, for either individuals or corporations, a plaintiff
can request a defendant to waive service by notifying the defend-
ant that an action has been commenced and requesting that the
defendant waive service of a summons. Fed. R. Civ. P. 4(d). De-
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21-11350 Opinion of the Court 5
fendants are not required to waive formal service, and if they do
not, the plaintiff must effect personal service.
Lepone-Dempsey
v. Carroll Cty. Comm’rs, 476 F.3d 1277, 1281 (11th Cir. 2007).
Rather than argue on appeal that his service complied with
the Federal Rules of Civil Procedure, Phillips contends that he
should be allowed effect service by mail. Thus, Phillips abandons
any claim that the district court improperly granted the appellees’
motions to dismiss based on defective service.
Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (arguments not raised
on appeal, even by
pro se litigants, are deemed abandoned).
Even if this claim is not abandoned, the district court did
not err in dismissing Phillips’s complaint for defective service as
to those defendants who were not personally served or did not
return a waiver of service. Only DeKalb County, Officer Harris,
and Curtis McMurray waived service, so Phillips was required to
effect personal service for all other defendants.2
See Lepone-
Dempsey, 476 F.3d at 1281. Phillips instead attempted service on-
ly by mail, which is not permitted by federal or Georgia law. Fed.
R. Civ. P. 4(e); O.C.G.A. § 9-11-4(e).
2 This includes Bill Havre who Phillips attempted to serve by mailing a pack-
age to New York, since the record does not indicate Havre returned an
acknowledgement of service to Phillips.
See N.Y. C.P.L.R. § 312-a (McKin-
ney 2009) (providing that New York law permits service by mail but requires
a return of acknowledgment of service to perfect service).
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6 Opinion of the Court 21-11350
II. FAILURE TO STATE A CLAIM
Section 1983 provides a cause of action by private citizens
against government actors for violations of their constitutional
rights and other federal laws. 42 U.S.C. § 1983. The conduct
complained of must have: (1) deprived the plaintiff of a right se-
cured by the Constitution or laws of the United States, and
(2) been committed by a person acting under color of state law.
See Focus on the Family v. Pinellas Suncoast Transit Auth., 344
F.3d 1263, 1276-77 (11th Cir. 2003). To impose liability on a pri-
vate party under Section 1983, the party’s actions must be “fairly
attributable” to the state.
Lugar v. Edmonson Oil Co., 457 U.S.
922, 937 (1982). “Action by a private party pursuant to [a] statute,
without something more, [is] not sufficient to justify a characteri-
zation of that party as a ‘state actor.’”
Id. at 939.
Additionally, even assuming the continued retention of
personal property is wrongful, no due process violation has oc-
curred when “
some adequate postdeprivation remedy is availa-
ble.”
Lindsey v. Storey, 936 F.2d 554, 561 (11th Cir. 1991).
“[Georgia] has provided an adequate postdeprivation remedy
when a plaintiff claims that the state has retained his property
without due process of law[:]” a civil cause of action for the
wrongful conversion of personal property.
Id. (citing O.C.G.A.
§ 51-10-1). And no substantive right to an investigation exists.
Vinyard v. Wilson, 311 F.3d 1340, 1356 (11th Cir. 2002).
The district court did not err in dismissing Phillips’s com-
plaint for failure to state a claim under Section 1983, since the
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21-11350 Opinion of the Court 7
apartment owner and managers and Quick Drop were not acting
under color of state law, and the county and Officer Harris did
not deprive Phillips of any protected rights. Nothing in Phillips’s
amended complaint suggests any action that was “fairly attributa-
ble” to the state.
See Lugar, 457 U.S. at 937. Rather, Phillips al-
leges that Quick Drop, a private company, towed Phillips’s car
from private property pursuant to the terms of Phillips’s lease
agreement with the private property owner. That the relevant
lease provision was meant to ensure compliance with Georgia
law regarding vehicle registration, as Phillips argues, was not suf-
ficient to transform the private actors into state actors.
See id. at
939. And even if the towing and retention of Phillips’s car was
wrongful, and the private actors were state actors, Georgia’s crea-
tion of a civil cause of action for the wrongful conversion of per-
sonal property precludes Phillips’s § 1983 claim.
See Lindsey, 936
F.2d at 561. Moreover, Phillips had no right to an investigation of
the allegedly wrongful towing of his car.
See Vinyard, 311 F.3d at
1356. Thus, he also lacked the lesser included right to have the
police properly record such investigation.
III. CONCLUSION
Phillips abandons his challenge to the district court’s find-
ing of defective service, and the district court did not err in finding
he failed to state a claim under § 1983. Accordingly, we affirm.
AFFIRMED.
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