Case: 14-10114   Date Filed: 08/22/2014   Page: 1 of 8


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-10114
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:13-cv-23452-CMA

KEVIN GERALD FORDE,

                                                             Plaintiff-Appellant,

                                     versus

MIAMI FEDERAL DEPARTMENT OF CORRECTIONS,

                                                            Defendant-Appellee.

                         ________________________

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

                               (August 22, 2014)

Before PRYOR, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:

      Kevin Forde, a federal prisoner proceeding pro se, appeals the district

court’s sua sponte dismissal without prejudice of his putative 42 U.S.C. § 1983
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civil rights action for failure to timely file an amended complaint as required by a

prior order. He also appeals the district court’s refusal to compel discovery. After

review of the record and the parties' briefs, we affirm in part and reverse in part.

                                           I

      Because we write for the parties, we assume familiarity with the underlying

facts of the case and recite only what is necessary to resolve this appeal.

      Mr. Forde sued the Miami Federal Department of Corrections under § 1983,

alleging that a prison doctor failed to prescribe him the anti-seizure medication he

required, and that the corrections officer on duty refused to assist him when he

began bleeding after injuring his head while in the throes of a seizure. Mr. Forde

subsequently filed a “motion of discovery,” through which he sought to determine,

among other things, the identities of the doctor who failed to prescribe him anti-

seizure medicine and the officer on duty at the time he injured himself. The

district court denied the motion, explaining that Mr. Forde must seek discovery

from the defendants in the case once they have been properly served with process

rather than through the court.

      Subsequently, on November 5, 2013, the magistrate judge entered an order

indicating that MFDOC was not a properly-named defendant because it was not a

person acting under color of state law for purposes of § 1983. The magistrate

judge ordered Mr. Forde to file an amended complaint containing separate


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paragraphs for each defendant, alleging the conduct of each defendant, and

alleging supporting facts showing why each defendant was being sued. The order

also cautioned Mr. Forde that failure to file an amended complaint in a timely

manner would “probably result in the dismissal of [his] case.” Mr. Forde then

requested and was granted a 30-day extension of time through December 26, 2013,

in which to file an amended complaint, but was also warned that “no further

extensions [would be] permitted.”

      On December 10, 2013, Mr. Forde filed a “motion to compel MFDOC” to

release information, in which he requested that the district court compel MFDOC

to provide the names and addresses of the doctor and officer responsible for his

injuries. The district court denied the motion the next day, again explaining that

Mr. Forde must first serve a defendant before it could compel discovery. In so

doing, the district court invited him to “seek a second and final extension of time”

to amend his complaint so that he might name the proper defendants.

      On December 22, 2013, Mr. Forde mailed a letter to the district court

requesting an additional 60-day extension to amend his complaint, but the request

was not docketed by the clerk’s office until December 31, 2013. In the meantime,

on December 27, 2013, the district court dismissed Mr. Forde’s complaint without

prejudice, concluding that Mr. Forde had not filed an amended complaint by

December 26 as ordered, had not sought a second extension of time, and had not


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advised the court that a dismissal would result in a statute of limitations bar to

refiling the complaint. Mr. Forde now appeals.

                                              II

      On appeal, Mr. Forde argues that the district court erred in dismissing his

case because he was unable to find the names and addresses of the proper

defendants such that he could not amend his complaint, and also erred when it

declined to compel discovery from MFDOC.

                                              A

      Mr. Forde contends that the district court improperly dismissed his

complaint because, as a pro se plaintiff, he lacks the resources to identify the

proper defendants and should have been given more time to ascertain their

identities. We disagree with the first of these arguments, but remand for further

consideration of the second.

      We review a dismissal for failure to comply with a court order for abuse of

discretion. Gratton v. Great Am. Commc’ns, 

, 1374 (11th Cir.

1999). “Discretion means the district court has a range of choice, and that its

decision will not be disturbed as long as it stays within that range and is not

influenced by any mistake of law.” Betty K Agencies, Ltd. v. M/V Monada, 

, 1337 (11th Cir. 2005) (quotation omitted). The Federal Rules of Civil

Procedure allow a district court to dismiss a plaintiff’s action for failure to comply


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with the Rules or any court order. Fed. R. Civ. P. 41(b). Under Rule 41(b), a court

has the power to sua sponte dismiss a case. Betty K 

.

      Although the district court must liberally construe pro se pleadings, pro se

litigants are nevertheless subject to the Federal Rules of Civil Procedure. Albra v.

Advan, Inc., 

, 829 (11th Cir. 2007).    As an initial matter, we reject

Mr. Forde’s contention that his pro se status precluded him from properly

amending his complaint. The district court’s orders instructed Mr. Forde on the

necessary contents and proper structure of his amended complaint. His pro se

status thus does not excuse him from complying with those orders by filing a

complaint that states a claim against properly-named defendants. 

.

      We also conclude, however, that the district court erred by dismissing Mr.

Forde’s case before it considered his timely-filed motion for a second extension of

time. The timing of pro se prisoners’ filings is governed by the “prison mailbox

rule,” under which, at least presumptively, “a pro se prisoner’s court filing is

deemed filed on the date it is delivered to prison authorities for mailing.” Williams

v. McNeil, 

, 1290 n.2 (11th Cir. 2009). See also Garvey v. Vaughn,

, 780 (11th Cir. 1993) (observing that this rule “states an equitable,

standardized method for measuring time restrictions so that requisite time




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limitations for filing do not preclude the incarcerated petitioner’s equal access to

the courts”).

      The district court invited Mr. Forde to seek a second and final extension of

time to amend his complaint in its December 11 order. Mr. Forde attempted to

accept this invitation in his letter to the court dated December 22 (and ultimately

docketed on December 31). The district court’s December 27 order premised the

dismissal in part on Mr. Forde’s purported failure to seek an extension.

Unbeknownst to the district court at the time, Mr. Forde had in fact timely sought a

second extension of time. Because Mr. Forde timely filed a motion for extension

under the prisoner mailbox rule, we remand to allow the district court to reconsider

its dismissal order in light of Mr. Forde’s motion. See Scuba v. Brigano, 

, 484 (6th Cir. 2007) (holding that prisoner mailbox rule rendered timely pro se

prisoner’s motion for extension of time docketed one day after filing deadline,

where the motion’s certificate of service was dated nearly two weeks earlier).

                                             B

      Mr. Forde maintains that the district court erred when it denied his motion to

compel discovery from MFDOC, as he could not ascertain the identities of the

proper defendants absent a court order compelling MFDOC to disclose that

information. We disagree.




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      We review a district court’s denial of a motion to compel discovery for

abuse of discretion. Holloman v. Mail-Well Corp., 

, 837 (11th Cir.

2006). Under this standard, we will not second-guess the district court’s decision

unless it reflects a clear error of judgment. 

of process, a court ordinarily may not exercise power over a

party named as a defendant in a complaint. Murphy Bros., Inc. v. Michetti Pipe

Stringing, Inc., 

, 350 (1999).          For a court to exercise personal

jurisdiction over a given defendant, that defendant must receive more than mere

notice. Prewitt Enters., Inc. v. Org. of Petroleum Exp. Countries, 

,

924-25 (11th Cir. 2003). “An individual or entity named as a defendant is not

obliged to engage in litigation unless notified of the action, and brought under a

court’s authority, by formal process.”          Murphy 

.

Accordingly, absent proper service of process, a district court has no jurisdiction to

compel a defendant to respond to discovery requests.           See 

a

“bedrock principle” that a defendant is not required to enter into litigation or to

take action as a party in a case before it is served with process).

      Notwithstanding his conclusory statements indicating that he had served

MFDOC, Mr. Forde submitted no proof of service in the district court. Although

Mr. Forde argues that he could not name the proper defendants without a court

order forcing MFDOC to reveal their identities, his failure to effect service on


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MFDOC meant the district court lacked the power to compel MFDOC to produce

information. Accordingly, the district court did not abuse its discretion when it

declined to compel discovery from MFDOC. 1

                                            III

       The district court’s dismissal of Mr. Forde’s case without prejudice is

reversed. The district court’s denial of Mr. Forde’s motion to compel discovery is

affirmed.

       AFFIRMED in part, REVERSED in part, and REMANDED.




1
  We note, for Mr. Forde's benefit on remand, that we have allowed pro se prisoners to bring
actions against sufficiently-described “John Doe” defendants where they cannot identify the
proper defendants at the time of filing the complaint but would be able to do so through
discovery. See Dean v. Barber, 

, 1215-16 (11th Cir. 1992).
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