us attorneys brief
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APPEAL NO. 11-10278-EE
DISTRICT COURT NO. 5:09-CV-384-OC-10GRJ
IN THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
DOUGLAS NALLS,
Plaintiff-Appellant,
v.
COLEMAN LOW FEDERAL INSTITUTION et al.,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
BRIEF OF UNITED STATES OF AMERICA
CIVIL CASE
ROBERT E. ONEILL
United States Attorney
DAVID P. RHODES
Assistant United States Attorney
Chief, Appellate Division
MICHELLE THRESHER TAYLOR
Assistant United States Attorney
Appellate Division
Florida Bar No. 529346
400 N. Tampa St., Ste. 3200
Tampa, FL 33602
Telephone: (813) 274-6000
Facsimile: (813) 274-6102
May 2, 2011
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Nalls v. Coleman Low Federal Institution et al.
Appeal No. 11-10278-EE
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
In addition to the persons identified in the certificate of interested persons
and corporate disclosure statement in the principal brief filed by Douglas Nalls,
the following persons and entities have an interest in the outcome of this case:
1. Albritton, A. Brian, former United States Attorney;
2. Federal Bureau of Prisons;
3. ONeill, Robert E., United States Attorney;
4. Rhodes, David P., Assistant United States Attorney,
Chief, Appellate Division; and
5. Warden, Coleman Low Federal Institution.
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STATEMENT REGARDING ORAL ARGUMENT
The United States does not request oral argument.
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TABLE OF CONTENTS AND TABLE OF CITATIONS
PAGE NO.
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CITATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x
STATEMENT OF THE ISSUE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. COURSE OF PROCEEDINGS AND DISPOSITION IN THE
COURT BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. STATEMENT OF THE FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C. STATEMENT OF THE STANDARD OR SCOPE
OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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TABLE OF CONTENTS
PAGE NO.
ARGUMENT AND CITATIONS OF AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . 8
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY
DISMISSING WITHOUT PREJUDICE NALLSS CLAIMS
AGAINST THE UNKNOWN FEDERAL DEFENDANTS, WHO
HAVE NEVER BEEN SERVED, AFTER NALLS REFUSED THE
OPPORTUNITY TO AMEND HIS COMPLAINT TO NAME THEM
AND INSISTED HE SHOULD NOT BE REQUIRED TO NAME
THEM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION
CERTIFICATE OF SERVICE
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TABLE OF CITATIONS
CASES CITED PAGE NO.
Amnesty Intern., USA v. Battle,
559 F.3d 1170 (11th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Benson v. United States,
969 F. Supp. 1129 (N.D. Ill. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics,
403 U.S. 388, 91 S. Ct. 1999 (1971).. . . . . . . . . . . viii, x, 2, 4, 5, 7, 8, 10, 11
Bolin v. Story,
225 F.3d 1234 (11th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
*Brown v. Tallahassee Police Dept,
205 F. Appx 802 (11th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10
Colle v. Brazos County, Tex.,
981 F.2d 237 (5th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
CSX Transp., Inc. v. United Transp. Union,
236 F. Appx 562 (11th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Davis Forestry Corp. v. Smith,
707 F.2d 1325 (11th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
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TABLE OF CITATIONS
CASES CITED PAGE NO.
Dean v. Barber,
951 F.2d 1210 (11th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Glaros v. Perse,
628 F.2d 679 (1st Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x, 13
Hemispherx Biopharma, Inc. v. Johannesburg Consol. Invs.,
553 F.3d 1351 (11th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x, 12
K.F.P. v. Dane County,
110 F.3d 516 (7th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Loranger v. Stierheim,
10 F.3d 776 (11th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
McNeil v. United States,
508 U.S. 106, 113 S. Ct. 1980 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
*Moulds v. Bullard,
345 F. Appx 387 (11th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Nalls v. Coleman Low Fed. Inst.,
307 F. Appx 296 (11th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . viii, 3, 4, 10
Nelson v. Barden,
145 F. Appx 303 (11th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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TABLE OF CITATIONS
CASES CITED PAGE NO.
PVC Windoors, Inc. v. Babbitbay Beach Const., N.V.,
598 F.3d 802 (11th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
Redd v. Doughterty,
578 F. Supp. 2d 1042 (N.D. Ill. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
*Richardson v. Johnson,
598 F.3d 734 (11th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
Snow v. DirecTV, Inc.,
450 F.3d 1314 (11th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Strauss v. City of Chicago,
760 F.2d 765 (7th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Wiley v. Wainwright,
793 F.2d 1190 (11th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Williams v. Barrett,
287 F. Appx 768 (11th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
STATUTES CITED
28 U.S.C. 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
28 U.S.C. 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x
28 U.S.C. 1406(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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TABLE OF CITATIONS
RULES CITED PAGE NO.
Fed. R. App. P. 4(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
Fed. R. Civ. P. 4.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Fed. R. Civ. P. 4(m).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 13
Fed. R. Civ. P. 10(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Fed. R. Civ. P. 12(b)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
OTHER AUTHORITIES CITED
28 C.F.R. 50.15.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
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INTRODUCTION
No federal defendants are proper parties to this case in its current procedural
posture. When Douglas Nalls brought this action, he named as defendants the
United States, the Federal Bureau of Prisons, and various unknown individual
employees of Coleman Federal Correctional Institution. Doc. 1. In Nalls v.
Coleman Low Fed. Inst., 307 F. Appx 296 (11th Cir. 2009), this Court affirmed
the district courts order granting summary judgment in favor of the United States
and the Federal Bureau of Prisons on the basis of sovereign immunity, but
reversed and remanded with respect to the claims Nalls had asserted against the
unknown individuals, holding that the district court should have liberally
construed Nallss complaint as raising individual-capacity claims pursuant to
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S.
388, 91 S. Ct. 1999 (1971). See Nalls, 307 F. Appx at 298; see also Doc. 37 at 8-
9.
After remand, a federal magistrate judge offered Nalls the opportunity to
file an amended complaint naming the individual defendants, but Nalls refused to
do so and insisted he should not be required to do so. See Docs. 82, 83; Doc. 87 at
2. The district court then dismissed Nallss remaining claims without prejudice.
Doc. 92 at 6; Doc. 93 at 1.
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Accordingly, no claims remain against the United States or the Federal
Bureau of Prisons, and no individuals are proper parties to the lawsuit because no
individual defendants have been served or even named in an amended complaint.
Nor do we presently have authorization to represent any individual defendant. See
28 C.F.R. 50.15 (setting forth procedures under which a federal employee may
request representation for individual-capacity claims and describing when such
representation will be authorized). We nonetheless suggest, on behalf of the
United States and the Federal Bureau of Prisons, that the district court did not err
in dismissing Nallss remaining claims.
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STATEMENT OF JURISDICTION
This is an appeal from a final decision of the United States District Court for
the Middle District of Florida in a civil case. The district court had subject matter
jurisdiction pursuant to 28 U.S.C. 1331. See Bivens v. Six Unknown Named
Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 397, 91 S. Ct. 1999, 2005
(1971) (section 1331 provided district court with authority to entertain suits
alleging deprivation of constitutional rights). As set forth in the Introduction
above, however, no federal defendants are proper parties to this case. Because the
unknown defendants have never been served or even named in an amended
complaint, the court lacked personal jurisdiction over them. See Hemispherx
Biopharma, Inc. v. Johannesburg Consol. Invs., 553 F.3d 1351, 1360 (11th Cir.
2008) (Service of process is a jurisdictional requirement: a court lacks
jurisdiction over the person of a defendant when that defendant has not been
served.); see also Glaros v. Perse, 628 F.2d 679, 685 (1st Cir. 1980) (district
court not required to wait indefinitely for [plaintiff] to take steps to identify and
serve the unknown defendants; when defendants had not been named or served
it was open to the district court to dismiss the complaint as to the unknown
defendants for lack of personal jurisdiction).
The district court dismissed all remaining claims without prejudice on
December 17, 2010, Doc. 92, and the clerk entered judgment on December 21,
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2010, Doc. 93. Nalls filed a timely notice of appeal on January 18, 2011. Doc.
94; see Fed. R. App. P. 4(a). This Court has jurisdiction over this appeal pursuant
to 28 U.S.C. 1291. See PVC Windoors, Inc. v. Babbitbay Beach Const., N.V.,
598 F.3d 802, 807 n.6 (11th Cir. 2010) (exercising jurisdiction under section 1291
to review dismissal without prejudice for lack of personal jurisdiction); Davis
Forestry Corp. v. Smith, 707 F.2d 1325, 1326 n.1 (11th Cir. 1983) (A dismissal
without prejudice can be appealed as a final order.).
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STATEMENT OF THE ISSUE
WHETHER THE DISTRICT COURT ABUSED ITS DISCRETION
BY DISMISSING WITHOUT PREJUDICE NALLSS CLAIMS
AGAINST THE UNKNOWN FEDERAL DEFENDANTS, WHO
HAVE NEVER BEEN SERVED, AFTER NALLS REFUSED THE
OPPORTUNITY TO AMEND HIS COMPLAINT TO NAME THEM
AND INSISTED HE SHOULD NOT BE REQUIRED TO NAME
THEM.
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STATEMENT OF THE CASE
A. COURSE OF PROCEEDINGS AND DISPOSITION IN THE
COURT BELOW
In January 2008, Douglas E. Nalls filed this Bivens action in the Southern
District of Florida, alleging violations of his constitutional rights during his
imprisonment at Coleman Federal Correctional Institution. Doc. 1. Nalls listed as
defendants the United States, the Federal Bureau of Prisons, and various
unknown officers and employees at Coleman Low Correctional Institution.
With respect to the unknown defendants, Nallss complaint alleged that
Defendant B was an Unknown Coleman Low Correctional Officer who had
applied unreasonable, unnecessary and excessive force to [Nalls] by slamming
[his] head against a wall, Doc. 1 at 2-4; Defendant C was the medical
officers and staff of Coleman Medical Department who had denied him medical
care, id. at 3; and Defendant D was the Warden and his administrative staff
that had ignored [his] many written complaints and had participated in a plot to
murder [him], id. at 3, 5.
The complaint was served on the Federal Bureau of Prisons and the United
States Attorneys Office. Docs. 6, 9. The summonses against the unknown
individuals were returned unexecuted. Docs. 10-12. In March 2008, Nalls moved
for an extension of time to serve the undiscovered individuals. Doc. 14.
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Finding that Nalls had not shown good cause for an extension, the district court
denied his motion and ordered him to serve the unnamed defendants by May 1,
2008. Doc. 16.
Instead, Nalls filed a Notice Identifying Unknown Defendants and
provided a list of the correctional officers that have been identified and whose
names should be appended to the list of Defendants. Doc. 22. The notice listed
18 names (two correctional officers, nine medical staff employees, and seven
administrative personnel), but did not specify the wrongful acts that each
individual allegedly had performed. Id. at 1-2. Nalls did not seek leave to file an
amended complaint, but requested that the court issue service of process for the 18
individuals. Docs. 23, 29.
Meanwhile, the United States filed a motion to dismiss based on sovereign
immunity, Doc. 15, which the district court converted into a motion for summary
judgment and granted, Doc. 30. The court also dismissed all claims against the
unknown parties, reasoning that Nalls had not placed these individuals on
proper notice of their potential personal liability and had not demonstrated that he
intended to hold these individuals personally liable. Doc. 30 at 2-3. The court
denied all pending motions as moot and closed the case. Id. at 3.
Nalls appealed, and in Nalls v. Coleman Low Fed. Inst., 307 F. Appx 296
(11th Cir. 2009), this Court affirmed the district courts grant of summary
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judgment as to the United States and the Federal Bureau of Prisons, but reversed
and remanded as to the claims against the unknown individuals. Id. at *2-3;
Doc. 37. This Court determined that the district court had erred by construing
Nallss complaint as raising only official-capacity claims against the unnamed
defendants and held that Nallss complaint should be liberally construed as raising
individual-capacity Bivens claims. Nalls, 307 F. Appx at 298; Doc. 37 at 8-9.
After remand, the district court in the Southern District transferred the case
to the Middle District pursuant to 28 U.S.C. 1406(a). Doc. 57 at 3. The district
court in the Middle District referred the matter to a magistrate judge to conduct
proceedings necessary for the issuance of a case-management and scheduling
order. Doc. 62 at 3. The magistrate judge, recognizing that the unknown
officers and personnel had never been served, scheduled a status conference, Doc.
63 at 1, but then cancelled that conference and stayed the case while Nalls sought
to appeal the transfer order and the denial of other motions. Docs. 70, 76, 77, 78,
80.
After Nalls advised the district court that no appellate matters remained
pending, Docs. 78, 80, the magistrate judge held a telephone conference, Doc. 82.
The court noted that the unknown correctional officers had not been served and
specifically asked [Nalls] whether he wanted the opportunity to file an Amended
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Complaint, but Nalls advised that he wanted to proceed on his original complaint.
Docs. 82, 83.
The United States then moved to dismiss the only remaining claims in the
casethe Bivens claims against the unknown individuals. Doc. 84 at 5. The
United States argued that because no defendants had been served or even named in
an amended complaint, the district court did not have jurisdiction over any actual
defendant upon whom liability could be assessed and argued that the case should
be dismissed for lack of personal jurisdiction and for failure to state a claim. Doc.
84 at 1, 5, 6, 9 (quotation at 6). The United States also noted that to the extent that
Nalls may assert that there are proper defendants to the action, no individual
defendants had been served with process as required by Fed. R. Civ. P. 4, and that
the case was subject to dismissal pursuant to Fed. R. Civ. P. 4(m) and 12(b)(5).
Doc. 84 at 9 n.7. Nalls opposed the motion, arguing that there is no requirement
to identify defendants in a Bivens action. Doc. 87 at 2.
The district court dismissed Nallss remaining claims without prejudice.
Docs. 92, 93. The court observed that Nalls had refused to identify the individual
defendants in his complaint and, [e]ven more importantly, he has failed and
refused to allege which putative defendants engaged in specifically described
conduct that was violative of his constitutional rights. Doc. 92 at 5. The court
noted that although it appeared from prior filings that Nalls has been aware of the
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identities of the unknown defendants for over two years, . . . he has steadfastly
refused to amend his complaint to include their names or a description of their
individual tortious conduct. Id. The court stated that Nalls has maintained this
3
position even though he was expressly offered the chance to amend, and was
notified of the consequences if he failed to do so. Id.
This appeal followed. Doc. 94.
B. STATEMENT OF THE FACTS
No additional facts are necessary to the resolution of this appeal.
C. STATEMENT OF THE STANDARD OR SCOPE OF REVIEW
This Court should review for abuse of discretion the district courts order
dismissing Nallss remaining claims without prejudice after Nalls refused to file an
amended complaint naming the individual defendants. See Brown v. Tallahassee
Police Dept, 205 F. Appx 802, 802 (11th Cir. 2006) (no abuse of discretion
where district court dismissed civil rights complaint without prejudice after pro se
plaintiff failed to file amended complaint naming individual defendants and
stating specific claims for relief); see also Colle v. Brazos County, Tex., 981 F.2d
237, 243 (5th Cir. 1993). To the extent that the courts order may be viewed as a
The court also noted that to the extent that Nalls may attempt to rely on his3
prior motions in the Southern District for service of process on the 18 named
individuals, as well as his in forma pauperis status, the Court cannot serve process
on persons who are not identified in the complaint, whose unlawful conduct is not
described, and against whom no claim for relief is made. Id. at 6 n.2.
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dismissal for failure to state a claim or for lack of personal jurisdiction, this Court
would review de novo. Snow v. DirecTV, Inc., 450 F.3d 1314, 1317 (11th Cir.
2006).
SUMMARY OF THE ARGUMENT
The district court did not abuse its discretion by dismissing Nallss
remaining claims against unknown individual defendants after Nalls refused the
opportunity to amend his complaint to name these individuals and insisted he
should not be required to name them. The record indicates that Nalls has been
aware of the identity of the individual defendants since at least April 2008, but
Nalls insists he should not be required to name individual defendants in a Bivens
action and asserts that the district court was trying to trick him. Nallss brief at
9. On this record, the district court acted well within its discretion when it
dismissed Nallss action without prejudice.
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ARGUMENT AND CITATIONS OF AUTHORITY
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION
BY DISMISSING WITHOUT PREJUDICE NALLSS CLAIMS
AGAINST THE UNKNOWN FEDERAL DEFENDANTS,
WHO HAVE NEVER BEEN SERVED, AFTER NALLS
REFUSED THE OPPORTUNITY TO AMEND HIS
COMPLAINT TO NAME THEM AND INSISTED HE SHOULD
NOT BE REQUIRED TO NAME THEM.
Nalls argues that the district court erred by dismissing without prejudice his
claims against the unknown federal defendants after he refused to amend his
complaint to properly name them. Nallss brief at 9-10, 16. Although Nalls
argues that he should not be required to identify individual defendants in a Bivens
action, Nallss brief at 10, he is mistaken.
Generally, fictitious-party pleading is not permitted in federal court.
Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010); CSX Transp., Inc. v.
United Transp. Union, 236 F. Appx 562, 562 n.1 (11th Cir. 2007) (Federal Rules
do not authorize suit against fictitious parties, and existence of Doe defendants
offered no impediment to the closing of this case); see also Fed. R. Civ. P. 10(a)
(The title of the complaint must name all the parties . . . .). This Court has
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recognized only a limited exception to this rule when the plaintiffs description of
the defendant is so specific as to be at the very worst, surplusage. Richardson,
598 F.3d at 738 (internal quotation marks omitted); see also Dean v. Barber, 951
F.2d 1210, 1216 (11th Cir. 1992) (plaintiff had adequately described defendant as
Chief Deputy of the Jefferson County Jail John Doe, where plaintiff had not yet
received report that would have provided him with the information to specifically
name the Chief and where the description was sufficiently clear to allow
service of process).
Here, the district court recognized that Nallss prior filings suggest that he
has been aware of the identities of the unknown defendants for over two years,
but he steadfastly refused to amend his complaint to include their names or a
description of their individual tortious conduct, despite being expressly offered
the chance to amend and being notified of the consequences if he failed to do
so. Doc. 92 at 5. The court did not abuse its discretion in dismissing without
prejudice Nallss claims against the unknown defendants. See Richardson, 598
F.3d at 738 (claim against John Doe correctional officer properly dismissed
where the description in the complaint was insufficient to identify the defendant
among the many guards employed by correctional institution); Moulds v. Bullard,
345 F. Appx 387, 390 (11th Cir. 2009) (dismissal of claims against John Doe
correctional officers was not abuse of discretion where plaintiff completely failed
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to describe some officers and gave only general description of others, such as duty
stations); Brown v. Tallahassee Police Dept, 205 F. Appx 802, 802-03 (11th Cir.
2006) (district court did not abuse its discretion in dismissing civil rights
complaint without prejudice, where plaintiff failed to name individual defendants
and failed to articulate specific claims against those defendants, despite being
given two opportunities to amend complaint).
On appeal, Nalls acknowledges that he was expressly offered the
opportunity to amend his complaint, but he contends that the district court was
attempting a ruse by forcing [him] to submit an Amended Complaint in order to
trick plaintiff to obfuscate his own favorable ruling from the 11th Circuit.
Nallss brief at 9. Nalls misunderstands both the district courts motives and this
Courts prior ruling. The district court fully complied with this Courts mandate in
Nalls v. Coleman Low Fed. Inst., 307 F. Appx 296, 298 (11th Cir. 2009), by
reopening the case and giving Nalls the opportunity to pursue his individual-
capacity Bivens claims against the unknown defendants. Doc. 40 at 2. But
neither this Courts prior holding nor Nallss pro se status grants him license to
disregard procedural and jurisdictional requirements as his case progressed. See
McNeil v. United States, 508 U.S. 106, 113, 113 S. Ct. 1980, 1984 (1993) ([W]e
have never suggested that procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed without counsel.).
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Apparently taking the view that he should be allowed to proceed indefinitely
without ever naming the unknown individuals in an amended complaint, Nalls
contends that a Bivens action is not based on the actual identity of the
Defendants and that the Defendants identification is not an established
requirement of a Bivens action. Nallss brief at 10. But because Nalls has never
served or even named any individual in an amended complaint, no individual3
defendants are currently attached to this action and there is no defendant against
whom he could recover. See, e.g., Benson v. United States, 969 F. Supp. 1129,
1131 (N.D. Ill. 1997) (claims against unknown John Doe conspirators are
meaningless and uncompensable). Because no individual defendants have been
properly named or served, the district court lacks personal jurisdiction over them.
Nalls suggests that he rendered adequate service because the remaining3
defendants have had a team of lawyers and attorneys [sic] representing them,
Nallss brief at 10, but this argument fails. Counsel for the United States have
consistently maintained that no individual defendants have been properly named
or served in this case. See, e.g., Doc. 43 at 1; Doc. 44 at 3; Doc. 84 at 1, 4-5, 8-9.
The magistrate judge and district court likewise recognized that no individual
defendants have been served. Doc. 62 at 3; Doc. 82 at 1; Doc. 92 at 4, 6 n.2; see
also Doc. 51 (clerks non-entry of default as to unknown defendants, stating that
[s]ervice of process has not been perfected in this matter). It is not clear fromthe record whether any individual defendants are even aware of Nallss lawsuit,
and even if they were, a defendants actual notice is not sufficient to cure
defectively executed service. Nelson v. Barden, 145 F. Appx 303, 310 (11th Cir.
2005) (holding that district court did not err in sua sponte dismissing civil
complaint for failure to effect timely service of process pursuant to Fed. R. Civ. P.
4(m), even though at least some of the defendants demonstrated that they were
aware of [plaintiffs] complaint by filing their partial motion to dismiss).
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See Strauss v. City of Chicago, 760 F.2d 765, 770 (7th Cir. 1985) (court lacked
jurisdiction over John Doe defendant who had never been served with summons
and copy of complaint); Hemispherx Biopharma, Inc. v. Johannesburg Consol.
Invs., 553 F.3d 1351, 1360 (11th Cir. 2008) (Service of process is a jurisdictional
requirement: a court lacks jurisdiction over the person of a defendant when that
defendant has not been served.). And because Nalls has failed and refused to
allege which putative defendants engaged in specifically described conduct that
violated his constitutional rights, Doc. 92 at 5, his complaint fails to state a claim.
Cf. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948-49 (2009) (in Bivens action,
supervisors may not be held accountable for the misdeeds of their agents, and a
plaintiff must plead that each government-official defendant, through the officials
own individual actions, has violated the Constitution); Amnesty Intern., USA v.
Battle, 559 F.3d 1170, 1179 (11th Cir. 2009) (heightened pleading is required
where . . . the defendants are individuals who may seek qualified immunity).
In his brief, Nalls appears to claim ignorance as to the identity of the
unknown defendants, claiming that there has been no substantiated testimony by
any Defendant that I know their names or any such hogwash. Nallss brief at 10.
But more than two and a half years before the district court dismissed his claims,
Nalls filed a notice listing the names of 18 individuals identified from discovered
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records. Doc. 22. The district court was not required to wait indefinitely for4
Nalls to file an amended complaint naming these individuals and specifying their
allegedly unlawful conduct. See Williams v. Barrett, 287 F. Appx 768, 770 (11th
Cir. 2008) (dismissal of claims against unnamed defendants was proper where
[m]ore than two years after bringing her lawsuit and more than four years after her
alleged injury occurred, plaintiff still had not identified and served the unnamed
defendants and statute of limitations for 42 U.S.C. 1983 claim had run); K.F.P. v.
Dane County, 110 F.3d 516, 519 (7th Cir. 1997) (plaintiff had obligation to
conduct a reasonable inquiry into the unknown defendants identities and could
not maintain civil rights action against unnamed detention facility employees where
he failed to isolate for the court which individuals allegedly violated his
constitutional rights); Glaros v. Perse, 628 F.2d 679, 685 (1st Cir. 1980) (district
court not required to wait indefinitely for [plaintiff] to take steps to identify and
serve the unknown defendants; when defendants had not been named or served
it was open to the district court to dismiss the complaint as to the unknown
defendants for lack of personal jurisdiction); Redd v. Doughterty, 578 F. Supp. 2d
1042, 1049 (N.D. Ill. 2008) (dismissing claims against unknown defendants
pursuant to Fed. R. Civ. P. 4(m) when more than 120 days had passed since the
Under the March 25, 2008, Joint Scheduling Report, the United States4
agreed to produce medical records and prison records within two weeks. See
Doc. 20 at 3.
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filing of the complaint and the unknown defendants have not been identified or
served).
Although Nalls contends that the Remaining Defendants have never
disputed the allegations of [his] verified complaint and argues that the district
court erred by not granting summary judgment or default judgment in his favor,
Nallss brief at 15, it obviously would have been improper for the district court to
enter judgment in his favor when no individuals defendants have been properly
named or served or have had the opportunity to respond to Nallss claims.
Nalls also claims that the district court was biased against him, see Nallss
brief at 9, 14, but that argument also is completely without merit. Nallss suspicion
that the court intended to trick him, Nallss brief at 9, is completely unfounded,
and his complaints of bias stem from the courts rulings and handling of this case.
As a general rule, bias or prejudice sufficient to disqualify a judge must stem from
extrajudicial sources. Wiley v. Wainwright, 793 F.2d 1190, 1193 (11th Cir.
1986); see also Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) ([E]xcept
where pervasive bias is shown, a judges rulings in the same or a related case are
not a sufficient basis for recusal.); Loranger v. Stierheim, 10 F.3d 776, 780-81
(11th Cir. 1994) (Neither the district judges delay, nor his adverse rulings,
constitute the sort of pervasive bias that necessitates recusal).
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In sum, the district court did not abuse its discretion in dismissing Nallss
remaining claims without prejudice after Nallsdespite being offered an
opportunity to file an amended complaint naming the individual
defendantsrefused to do so and insisted on proceeding against unknown parties.
CONCLUSION
The United States respectfully suggests that this Court affirm the judgment
and order of the district court.
Respectfully submitted,
ROBERT E. ONEILL
United States Attorney
DAVID P. RHODES
Assistant United States Attorney
Chief, Appellate Division
By:
MICHELLE THRESHER TAYLOR
Assistant United States Attorney
Appellate Division
Florida Bar No. 529346
400 N. Tampa St., Ste. 3200
Tampa, FL 33602
Telephone: (813) 274-6000
Facsimile: (813) 274-6102
May 2, 2011
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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 3542 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on the 2nd day of May, 2011, via ordinary mail,
a copy of this document was served on:
Douglas E. Nalls, M.D.
993 Bay Drive, #2
Miami Beach, FL 33141
Plaintiff-appellant, pro se
_____________________________
MICHELLE THRESHER TAYLOR
Assistant United States Attorney
gkpr/no 4/18/11
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