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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-11359
Non-Argument Calendar
________________________
D.C. Docket No. 2:19-cv-00400-ECM-WC
LARRY AYERS WILKE,
Plaintiff-Appellant,
versus
TROY REGIONAL MEDICAL CENTER,
CHRISTIAN LUKJAN,
Attorney,
JUDGE DUNN,
Pike Co. Probate,
RANDALL BARR,
Troy Police Chief,
PIKE CO. MENTAL HEALTH, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(March 17, 2021)
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Before GRANT, LUCK, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Proceeding pro se, Plaintiff Larry Wilke appeals the district court’s order
dismissing without prejudice his 42 U.S.C. § 1983 complaint against several
defendants. Because the court did not err in concluding that Plaintiff failed to state
a claim against one defendant and did not abuse its discretion in determining that
Plaintiff had not timely perfected service against the remaining defendants or
shown good cause for failing to do so, we affirm.
I. BACKGROUND
Proceeding pro se, on June 10, 2019, Plaintiff filed a three-page complaint
against Troy Regional Medical Center (“Defendant”) and several other defendants,
including Attorney Christian Lukjan, Judge Dunn, Police Chief Randall Barr, Pike
Co. Mental Health, Craig Maddox, Dr. Strunk, and Office Assistant Valerie
(collectively, “Remaining Defendants”). Implicitly invoking 42 U.S.C. § 1983,
Plaintiff claimed that the defendants had violated his civil rights by engaging in
harassment, false imprisonment, and false arrest. The complaint identified several
prior cases in which Plaintiff was a party, under the heading “History,” and stated
that “this complaint is ‘joined at the hip’ with the pr[e]ceeding ‘History.’”
Although the complaint did not contain any factual allegations, it anticipated that
the defendants would “attempt[] to malign the plaintiff as ‘incompetent.’” From
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the attached probate court orders and filings, it appeared that Plaintiff might be
seeking to raise claims arising out of his involuntary commitment at the Troy
Regional Medical Center Senior Behavioral Care Unit in Troy, Alabama.
In July 2019, Defendant filed a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6), arguing that the complaint’s lack
of specificity did not comply with the federal pleading standard or the Alabama
Medical Liability Act, which governs claims by patients against Alabama
healthcare providers. On September 25, 2019, a magistrate judge ordered Plaintiff
to show cause within two weeks why Defendant’s motion to dismiss should not be
granted. Noting that Plaintiff also had not timely served the defendants, the
magistrate judge further ordered Plaintiff to show cause why the action should not
be dismissed for failure to timely perfect service. Plaintiff did not respond.
After waiting nearly six months for Plaintiff to respond to the order to show
cause, the magistrate judge issued a report and recommendation (“R&R”) in March
2020, recommending that the district court dismiss the complaint without
prejudice. Because Plaintiff’s complaint simply listed the names of (1) the
defendants, (2) the causes of action, and (3) Plaintiff’s prior cases, the magistrate
judge concluded that Plaintiff had not pleaded enough facts to support a plausible
claim. The magistrate judge also concluded that amendment would be futile
because Plaintiff had “continually failed to respond [to] orders of this Court or
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otherwise prosecute his case.” Accordingly, the magistrate judge recommended
that the district court grant Defendant’s motion to dismiss for failure to state a
claim. In addition, because Plaintiff had not timely served the Remaining
Defendants or shown good cause for an extension of time to serve process, the
magistrate judge recommended that the district court dismiss Plaintiff’s claims
against the Remaining Defendants under Federal Rule of Civil Procedure 4(m).
Plaintiff timely responded to the R&R, but his objections did not address the
magistrate judge’s reasons for recommending dismissal. Instead, Plaintiff merely
realleged that defendants and others had violated his rights, asserted generally that
the R&R’s conclusions were unreasonable, and stated that his “clarity of thought
and legal progress” had been affected by injuries sustained in a recent car accident.
Because Plaintiff’s objections largely mirrored his complaint and lacked
factual or legal support, the district court overruled the objections and adopted the
R&R. As a result, the court granted Defendant’s motion to dismiss and dismissed
Plaintiff’s case against Defendant without prejudice. The court also dismissed
without prejudice Plaintiff’s claims against the Remaining Defendants, as he had
abandoned those claims, failed to prosecute his case, and failed to comply with the
court’s orders. This appeal followed.
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II. DISCUSSION
On appeal, Plaintiff challenges the district court’s dismissal of his complaint
for failure to state a claim and for failure to timely perfect service. After careful
review, we discern no error in the decision below.1
First, the district court correctly dismissed Plaintiff’s complaint against
Defendant for failure to state a claim. “We review de novo the district court’s
grant of a motion to dismiss under Rule 12(b)(6) for failure to state a claim,
accepting the allegations in the complaint as true and construing them in the light
most favorable to the plaintiff.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283,
1288 (11th Cir. 2010) (quotation marks omitted).
Federal Rule of Civil Procedure 8 requires that a pleading contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). To satisfy the pleading standard, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks
omitted). “A claim has facial plausibility when the plaintiff pleads factual content
1
On appeal, Plaintiff asserts that his case “involv[es] undisputable facts” and “should not be
routinely dismissed.” He also realleges generally that the defendants violated his constitutional
rights by falsely arresting him, subjecting him to involuntary commitment, and forcibly injecting
him with psychotropic drugs. Although we liberally construe pro se briefs, Plaintiff has not
identified any alleged errors in the magistrate judge’s or district court’s rulings. Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008). Accordingly, Plaintiff has abandoned a challenge
to the dismissal of his complaint. Id. In any event, the district court correctly dismissed
Plaintiff’s complaint without prejudice.
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that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Thus, pleading a claim “requires more than labels
and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. In evaluating
whether dismissal is warranted under Federal Rule of Civil Procedure 12(b)(6), we
disregard allegations that are merely legal conclusions and determine whether the
factual allegations remaining in the complaint would entitle the complainant to
relief if true. Am. Dental Ass’n, 605 F.3d at 1290. Although we liberally construe
a pro se plaintiff’s pleadings, pro se litigants are required to conform to procedural
rules. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).
Here, the district court did not err in granting Defendant’s motion to dismiss
for failure to state a claim to relief. In his complaint, Plaintiff identified the parties
and the causes of action but failed to provide any factual allegations, much less
spell out plausible claims against specific defendants. See Iqbal, 556 U.S. at 678.
The only allegation in the complaint that could arguably qualify as “factual” was
Plaintiff’s assertion that the instant complaint was “joined at the hip” with his prior
legal actions. Even assuming that this allegation was factual rather than legal,
however, it did not raise Plaintiff’s “right to relief above the speculative level.”
Twombly, 550 U.S. at 555. Plaintiff did not explain what was at issue in his prior
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cases, how those cases were connected to the instant complaint, or why his other
cases showed that any defendant had violated his constitutional rights. Without
supporting factual content, the court could not reasonably infer that any defendant
was liable for misconduct. Iqbal, 556 U.S. at 678. Accordingly, Plaintiff failed to
state a claim to relief against Defendant.2
Likewise, we discern no error in the district court’s dismissal of Plaintiff’s
complaint against the Remaining Defendant for failure to timely perfect service.
We review a district court’s dismissal of a complaint under Federal Rule of Civil
Procedure 4(m) for an abuse of discretion. Rance v. Rocksolid Granit USA, Inc.,
583 F.3d 1284, 1286 (11th Cir. 2009). Rule 4(m) provides that, after giving notice
to a plaintiff who has not served a defendant “within 90 days after the complaint is
filed,” the court “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). An
2
We note that the district court also reasonably dismissed Plaintiff’s complaint without
prejudice rather than sua sponte granting leave to amend. An abuse-of-discretion standard
applies to a district court’s denial of leave to amend. See Vanderberg v. Donaldson, 259 F.3d
1321, 1326 (11th Cir. 2001). Although a court “should freely give leave [to amend] when justice
so requires,” Fed. R. Civ. P. 15(a)(2), the court here reasonably concluded that dismissal without
prejudice was warranted. This is particularly true because Plaintiff did not seek leave to amend,
did not respond to the magistrate judge’s show-cause order, which directed Plaintiff to respond
to Defendant’s motion to dismiss for failure to state a claim, and did not identify any facts in his
objections to the R&R that would cure the factual deficiencies in his complaint. See
Vanderberg, 259 F.3d at 1326–27 (holding that the court did not abuse its discretion in denying
leave to amend where the plaintiff did not move for leave to amend until after the dismissal order
and the “[p]laintiff failed to allege new facts from which the district court could have concluded
that [the] [p]laintiff may have been able to state a claim successfully”).
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extension of time for service is warranted where a plaintiff can “show good cause
for the failure” to serve a defendant. Id.
Here, because Plaintiff failed to timely perfect service or show good cause
for failing to do so, the district court did not abuse its discretion in dismissing
without prejudice his complaint against the Remaining Defendants. Plaintiff filed
his complaint in early June 2019 but never served the Remaining Defendants. In
late September 2019, the magistrate judge ordered Plaintiff to show cause why his
complaint should not be dismissed for failure to timely perfect service, but Plaintiff
never responded to that order. Only after the magistrate judge issued the R&R in
March 2020 did Plaintiff file a response, and even then Plaintiff did not address his
failure to timely perfect service. Plaintiff’s failure to timely serve the Remaining
Defendants or show good cause for failing to do so is therefore undisputed.
Accordingly, the district court did not abuse its discretion in dismissing without
prejudice Plaintiff’s complaint against the Remaining Defendants.
III. CONCLUSION
Plaintiff has not shown that the district court erred in granting Defendant’s
motion to dismiss or abused its discretion in dismissing Plaintiff’s claims against
the Remaining Defendants. Accordingly, we affirm the district court’s order
dismissing Plaintiff’s complaint without prejudice.
AFFIRMED.
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