USCA11 Case: 20-14718 Date Filed: 05/26/2021 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-14718
Non-Argument Calendar
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D.C. Docket No. 1:20-cv-00102-JRH-BKE
PRECIOUS WILEY,
Surviving Spouse of Randy B. Wiley,
Plaintiff - Appellant,
versus
DEPARTMENT OF VETERANS AFFAIRS,
UNITED STATES GOVERNMENT,
EISENHOWER ARMY MEDICAL CENTER,
Defendants – Appellees.
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Appeal from the United States District Court
for the Southern District of Georgia
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(May 26, 2021)
Before JORDAN, GRANT and DUBINA, Circuit Judges.
PER CURIAM:
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Appellant Precious Wiley appeals pro se the district court’s order sua sponte
dismissing her pro se complaint under the Federal Tort Claims Act alleging the
wrongful death of her husband due to an Eisenhower Army Medical Center
(“EAMC”) employee’s negligence. The district court found that Wiley failed to
effect proper service on EAMC and the other defendants, the Department of
Veterans Affairs, Office of General Counsel, and the United States Government,
Veterans Affairs. On appeal, Wiley contends that she served each of the
defendants with a copy of the complaint by certified mail and mailed copies of the
certified notices to the Veterans Affairs office and the United States Attorney for
the Southern District of Georgia. After a review of the record, we affirm the
district court’s order of dismissal.
I.
Although we generally review a district court’s interpretation of Rule 4 de
novo, we review the district court’s order dismissing a complaint without prejudice
for failing to timely serve a defendant under Rule 4 for abuse of discretion.
Lepone-Dempsey v. Carroll Cty. Comm’rs, 476 F.3d 1277, 1280 (11th Cir. 2007).
While we construe the pleadings of pro se litigants liberally, we still require them
to conform to procedural rules. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir.
2007).
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To serve the United States, Rule 4 requires, in relevant part: (1) sending a
copy of the summons and complaint to the civil process clerk at the United States
Attorney’s Office by registered or certified mail; and (2) sending a copy of the
summons and complaint to the Attorney General of the United States in
Washington, D.C., by registered or certified mail. Fed. R. Civ. P. 4(i)(1). To serve
a United States agency, Rule 4 requires, in relevant part: (1) serving the United
States; and (2) sending a copy of the summons and complaint to the agency by
registered or certified mail. Fed. R. Civ. P. 4(i)(2). A court must allow a
reasonable time for a party to cure its failure to serve a required person under Rule
4(i)(2), if the party has served either the United States Attorney or the United
States Attorney General. Fed. R. Civl. P. 4(i)(4).
Pursuant to Rule 4, “[t]he plaintiff is responsible for having the summons
and complaint served within the time allowed by Rule 4(m).” Fed. R. Civ. P.
4(c)(1). Rule 4(m) provides, in part, that “if a defendant is not served within 90
days after the complaint is filed, the court ⸻ on motion or on its own after notice
to the plaintiff ⸻ 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). If the
plaintiff shows good cause for the failure, however, “the court must extend the
time for service for an appropriate period.” Id. If the district court finds that a
plaintiff has failed to show good cause for failing to effect service timely, it must
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consider whether circumstances warrant an extension of time based on the facts of
the case. Lepone-Dempsey, 476 F.3d at 1282. “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.” Id.
II.
Based on our review of the record, we conclude that the district court did not
abuse its discretion in dismissing Wiley’s complaint without prejudice for her
failure to serve the defendants properly. Although Wiley contends on appeal that
she sent a copy of the complaint to all parties, she does not state that she sent a
copy of the summons. If she did send the certified notices to the United States
Attorney for the Southern District of Georgia and the Veterans Affairs office, she
still failed to comply with Rule 4(i) because she did not serve the United States
government.
Moreover, Wiley has not shown good cause warranting an extension of time
for her to effectuate service properly. Wiley does not assert that the district court
failed to consider factors that might have justified an extension of time. Therefore,
she has abandoned that issue. See Timson v. Sampson, 518 F.3d 870, 874 (11th
Cir. 2008) (stating that issues not briefed on appeal by a pro se litigant are deemed
abandoned). Regardless, the district court considered that dismissing Wiley’s
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complaint would not prejudice her because, based on the dates alleged in her
complaint, her claim would be timely. Accordingly, for the aforementioned
reasons, we affirm the district court’s order dismissing Wiley’s complaint without
prejudice.
AFFIRMED.
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