Case: 18-13350    Date Filed: 11/01/2019   Page: 1 of 4


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-13350
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 9:17-cv-80861-DMM



ALENS CHARLES,

                                                               Plaintiff-Appellant,

                                    versus

RIC L. BRADSHAW,
as Sheriff of Palm Beach County Sheriff's Office,

                                                              Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                               (November 1, 2019)
              Case: 18-13350     Date Filed: 11/01/2019    Page: 2 of 4


Before ED CARNES, Chief Judge, WILSON, and HULL, Circuit Judges.

PER CURIAM:

      Alens Charles appeals the dismissal of his 42 U.S.C. § 1983 action for

excessive force against Ric Bradshaw, as sheriff of the Palm Beach County

Sheriff’s Department, for failure to timely serve him.

                                          I.

      Charles, acting pro se, originally filed a § 1983 complaint against Bradshaw

on July 20, 2017. The district court entered an order on August 7 instructing

Charles on how to serve Bradshaw and noting that he must serve process on him

within ninety days of filing the complaint as required by Federal Rule of Civil

Procedure 4(m). On August 28 Charles filed an amended complaint that also

named Bradshaw as the defendant.

      As of October 5, Charles had still not asked the district court clerk’s office to

issue a summons, so the court ordered him to serve Bradshaw by October 18,

which was ninety days after Charles had filed his original complaint. The court

also ordered him to file proof of service by October 25. Charles did not serve

Bradshaw by October 18. On November 1, the court ordered Charles to file, by

November 10, either (1) proof of service on Bradshaw or (2) a showing of good

cause why Charles was unable to timely serve Bradshaw with process. That order

warned Charles that failure to comply with the November 1 order and Rule 4(m)


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would result in the dismissal of the action without prejudice. Still Charles did not

comply.

          Instead Charles filed a letter with the district court on November 22

implying that he had served a “notice” of the case on Bradshaw and asked the court

if he was “doing the right thing” with regard to handling his case. He was not. So

the court again gave Charles detailed instructions about how to serve Bradshaw

with the summons and a copy of the complaint. The court again told Charles that

failure to comply with Rule 4(m) and the court’s order would result in dismissal of

his case without prejudice.

          On December 12, Charles filed an alleged proof of service on the Palm

Beach County Sheriff’s Office. Bradshaw filed a motion to quash Charles’ service

as untimely and improperly served. On February 15, 2018, the district court

granted Bradshaw’s motion. One reason was that Charles had failed to timely

serve process on Bradshaw within ninety days of his filing of a complaint, as

required by Rule 4(m). This is Charles’ appeal. 1

                                                  II.

          A court “must dismiss the action without prejudice” as to a defendant if that

defendant is not served within ninety days of the plaintiff filing the complaint and

the plaintiff fails to show good cause for not serving the defendant within the


1
    Bradshaw filed a motion to dismiss this appeal for lack of jurisdiction, which this Court denied.
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required timeframe. Fed. R. Civ. P. 4(m). We review a district court’s dismissal

without prejudice of a plaintiff’s complaint for failure to timely serve a summons

and complaint under Rule 4(m) only for abuse of discretion. Rance v. Rocksolid

Granit USA, Inc., 

, 1286 (11th Cir. 2009).

       Even “when a district court finds that a plaintiff fails to show good cause for

failing to effect timely service pursuant to Rule 4(m), the district court must still

consider whether any other circumstances warrant an extension of time based on

the facts of the case.” See Lepone-Dempsey v. Carroll Cty. Comm’rs, 

, 1282 (11th Cir. 2007). “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.” 

court did not abuse its discretion in this case. Charles failed to

timely serve Bradshaw under Rule 4(m) and did not show good cause for his

failure. And the district court also considered the circumstances of Charles’ case

as required by Lepone-Dempsey before exercising its discretion to dismiss

Charles’ complaint.2

       AFFIRMED.




2
 Because Charles failed to timely serve Bradshaw, we do not address whether that service was
proper.
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