United States District Court, S.D. Florida
ROY J. DIXON, JR., Plaintiff,
STATE OF FLORIDA, KRISTA MARX, in care of Peter D. Blanc, Defendants.
Dixon, pro se
ALTMAN UNITED STATES DISTRICT JUDGE.
CAUSE came before the Court on the Plaintiff's
Motions for Leave to File a Verified Second Complaint [ECF
Nos. 25 and 28] and the Defendants' Second Motion to
Quash Service [ECF No. 27]. The Court has carefully
considered the parties' written submissions and the
November 14, 2018, the Plaintiff, Roy J. Dixon, proceeding
pro se, filed a Verified Deprivation of Civil Rights
Complaint [ECF No. 1] against now-retired 15th
Judicial Circuit Court Judge Peter D. Blanc. The Plaintiff
failed to serve Judge Blanc within 90 days of filing his
complaint, as required by Fed.R.Civ.P. 4(m), and this matter
was dismissed without prejudice per the Court's Order
Dismissing Case on February 15, 2019 [ECF No. 17]. On
February 22, 2019, the Court, on the Plaintiff's Motion
[ECF No. 18], reopened this matter to allow the Plaintiff
additional time to serve two new Defendants: the State of
Florida and Judge Krista Marx “in care of Peter D.
Blanc” [ECF No. 19].
March 27, 2019, the Plaintiff moved for a Clerk's Entry
of Default Judgment [ECF No. 20], to which the Defendants
responded by moving to quash service [ECF No. 22]. The
Defendants' Motion, which was granted by the Court [ECF
No. 23], accurately noted that the State of Florida and Judge
Marx were never properly served by the Plaintiff. Instead of
having the Court of Clerk issue new summonses for the newly
added Defendants, the Plaintiff simply edited, by hand, a
prior summons issued to Judge Blanc [ECF No. 22 at 2-3].
Pursuant to Federal Rule of Civil Procedure 4, a summons must
be issued by the Clerk of Court as to each Defendant in a
case. See Fed. R. Civ. P. 4(b). The Plaintiff was
then reminded by the Court, for the fourth time in as many
months, that failure to properly and timely
serve the Defendants “will result in a dismissal of
this action.” [ECF No. 23].
April 5, 2019, an Affidavit reflecting the execution of
service was filed on the Court's docket showing that
Judge Marx was served on April 2, 2019
(“Affidavit”) [ECF No. 24]. The Defendants then
filed a Second Motion to Quash Service (“Second
Motion”) [ECF No. 27]. In their Second Motion, the
Defendants correctly note that the Clerk of Court still has
not issued new summonses in this matter as to either Judge
Marx or the State of Florida. Id. at 3. Instead, it
appears that the Plaintiff has again edited, by hand, a
previously issued summons dating from November 14, 2018 [ECF
No. 27 at 8]. The Defendants also suggest that the Affidavit
may constitute fraud on the Court given that the individual
(and the corresponding job title) identified in the Affidavit
does not, in fact, exist. In any event, the deadline for
perfecting service in this matter has expired, and the
Plaintiff's claim must be dismissed for insufficient
service of process.
the Eleventh Circuit has instructed district courts to
construe liberally the filings of pro se litigants,
it has also made clear that pro se litigants are
bound by all applicable procedural rules, including Rule 4 of
the Federal Rules of Civil Procedure. Albra v. Advan,
Inc., 490 F.3d 826, 829 (11th Cir. 2007). Rule 4(m)
requires dismissal of an action without prejudice if a
defendant is not served within 90 days after the complaint is
filed, unless the plaintiff can show good cause for the
failure to effect service. 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)
Court does not find good cause here because the Court has
already reminded the Plaintiff, on several occasions, of Rule
4's requirement that, within 90 days after the filing of
a complaint, a plaintiff must serve on each defendant a
summons that has been separately issued by the Clerk of
Court. [ECF Nos. 11, 13, 19, 23]. Ignoring these
admonitions-and despite the fact that this matter has been
pending for over 180 days-the Plaintiff has still failed to
perfect service as to any of the Defendants. As a result,
dismissal is appropriate. See Cooley v. Ocwen Loan
Servicing, LLC, 729 Fed.Appx. 677, 682 (11th Cir. 2018)
(dismissing pro se plaintiff's amended complaint
under Fed.R.Civ.P. 12(b)(5) where plaintiff had “ample
opportunity” to properly serve the defendant); see
also Pruitt v. Charter Commc'ns, No.
5:17-CV-1764-LCB, 2019 WL 1199837, at *4 (N.D. Ala. Mar. 14,
2019) (dismissing pro se plaintiff's claims for
failure to properly effect service of process where plaintiff
had notice of service deficiencies but made no attempts to
Court will briefly address the Plaintiff's Motions for
leave to file a Second Amended Complaint [ECF Nos. 25 and
28]. The Court notes that the [Scheduling] Order Setting 
Deadlines [ECF No. 6] established January 29, 2019 as the
deadline for amended pleadings. Because the Plaintiff seeks
leave to amend his pleadings after the expiration of the
scheduling order's deadline, he must demonstrate good
cause under Rule 16(b)(4) before the Court will consider
whether an amendment under Rule 15(a)(2) is appropriate.
See Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419
(11th Cir. 1998) (citation omitted).
Plaintiff has made little effort to show good cause. In any
event, because of the Plaintiffs “repeated failure to
cure deficiencies, ” Foman v. Davis, 371 U.S.
178, 182 (1962) (outlining the standard for permitting leave
to amend a complaint), including his failure to satisfy even
the most basic procedural requirements, the Court finds that
the Plaintiff has failed to show good cause here.
AND ADJUDGED that the case is DISMISSED
without prejudice. The Clerk is directed to
CLOSE the case, and all pending motions are
DENIED as moot.