USCA11 Case: 21-12527 Date Filed: 02/11/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12527
Non-Argument Calendar
____________________
TONY B. MATHIS,
Plaintiff-Appellant,
versus
CSX TRANSPORTATION,
MARK WILLIAMS,
Manager Program Construction,
JAMES HINANT,
Director of Program Construction,
MATTHEW SLATER,
SPG Supervisor,
USCA11 Case: 21-12527 Date Filed: 02/11/2022 Page: 2 of 8
2 Opinion of the Court 21-12527
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:20-cv-00528-MMH-JRK
____________________
Before JILL PRYOR, BRANCH, AND BRASHER, Circuit Judges.
PER CURIAM:
Tony B. Mathis, proceeding pro se, appeals from the district
court’s dismissal without prejudice of his complaint for failure to
prosecute. 1 The Appellees have moved for summary affirmance of
the district court’s order. After review, we grant the Appellees’
motion.
I. Factual Background
In May 2020, Mathis filed the present pro se suit against his
former employer, CSX Transportation (“CSX”), and three
company employees in May 2020, claiming discrimination and
1 As the district court noted, its dismissal without prejudice was
effectively a dismissal with prejudice because Mathis was required to file suit
within 90 days of receiving a Notice of Right to Sue from the Equal
Employment Opportunity Commission. See 42 U.S.C. § 2000e-5(f)(1). Mathis
received his notice in 2020, and, as the district court found, “his 90 day period
has undeniably expired.”
USCA11 Case: 21-12527 Date Filed: 02/11/2022 Page: 3 of 8
21-12527 Opinion of the Court 3
retaliation under Title VII of the Civil Rights Act of 1964, along
with a motion to proceed in forma pauperis (“IFP”). In June 2020,
a magistrate judge ordered Mathis “not [to] serve Defendants with
any pleading or other process related to this action” until the court
decided whether to permit him to proceed IFP. However, prior to
the court ruling on the IFP motion, Mathis paid the filing fee,
rendering the motion moot. However, Mathis did not serve the
defendants.
On September 8, 2020, the district court sua sponte ordered
Mathis to show cause by September 25 why, in light of his failure
to serve the defendants within 90 days of filing his complaint, his
suit should not be dismissed for failure to prosecute his case under
Local Rule 3.10(a). Mathis responded by asserting that he suffered
from anxiety and depression, that since “the work related incidents
I have had trouble with memory in some areas and understanding
or comprehension,” but that he was “engaged and ready to
proceed” despite his “misunderstanding and missing deadlines.”
Yet Mathis still did not serve the defendants, and they
moved to dismiss his complaint for lack of service in March 2021.
Mathis did not respond, and in April 2021, the district court issued
a second show-cause order, in which it noted that Mathis had failed
to serve his complaint on the defendants or respond to their motion
to dismiss. The district court ordered Mathis to file a written
response explaining his failure to serve the defendants or respond
to their motion to dismiss by May 14, cautioning him that a failure
to comply would result in dismissal of his case.
USCA11 Case: 21-12527 Date Filed: 02/11/2022 Page: 4 of 8
4 Opinion of the Court 21-12527
On May 10, Mathis filed a “response to motion,” explaining
that he was going through difficult times, thought that the district
court would serve his complaint for him, and was “engaged and
more than ready to present [his] case.”
On June 29, 2021, the district court granted the defendants’
motion and dismissed Mathis’s suit. The court found that, despite
the two show cause orders explaining the need for Mathis to effect
service, Mathis had never expressed any intention of serving his
complaint on the defendants, and failed to show good cause for not
doing so. Similarly, he failed to request an extension of time to
effect service at any point in the prior year between the filing of his
complaint and the dismissal. And he failed to respond to the
motion to dismiss or explain his failure to do so. Based on these
circumstances, the district court concluded that Mathis had failed
to “otherwise prosecute” his case and that dismissal was warranted.
Mathis appealed.
On appeal, Mathis filed a pro se brief—spanning nine
sentences without any citations to the record or caselaw—
purporting to challenge the district court’s dismissal of his
complaint. CSX moved for summary affirmance of the district
court’s order and a stay of the briefing schedule, arguing that the
district court did not abuse its discretion in dismissing Mathis’s case
for failure to prosecute because Mathis failed to offer good cause
USCA11 Case: 21-12527 Date Filed: 02/11/2022 Page: 5 of 8
21-12527 Opinion of the Court 5
for his failure to serve the complaint on the defendants or comply
with the district court’s show-cause orders. 2
II. Discussion
Summary disposition of an appeal is appropriate where “the
position of one of the parties is clearly right as a matter of law so
that there can be no substantial question as to the outcome of the
case, or where, as is more frequently the case, the appeal is
frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162
(5th Cir. 1969). 3 We liberally construe pro se pleadings and hold
them to a less stringent standard than those drafted by attorneys.
Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014). Yet
a court may not “serve as de facto counsel for a party [or] rewrite
an otherwise deficient pleading in order to sustain an action.” Id.
at 1168–69 (quotation omitted). Further, all litigants in federal
2 CSX also argues that Mathis has abandoned any challenge to the
dismissal of the case by failing to respond to the basis of dismissal: that he failed
to prosecute his case. We disagree, however, and conclude that Mathis has
not abandoned his challenge to the dismissal of his complaint. Liberally
construed, Mathis’s brief argues that good cause existed for his failure to
timely serve the defendants or respond to the defendants’ motion to dismiss.
Mathis asserts that he “wasn’t notified by the court whether to proceed with
prosecuting [his case].” He also challenges adequately the second basis for the
dismissal—that he did not show good cause for failing to timely respond to
the motion to dismiss—by stating in his brief, “I didn’t have knowledge of how
to respond to orders and motions.” (Emphasis added).
3See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981)
(en banc) (holding that all decisions from the Fifth Circuit Court of Appeals
issued before October 1, 1981, are binding precedent in the Eleventh Circuit).
USCA11 Case: 21-12527 Date Filed: 02/11/2022 Page: 6 of 8
6 Opinion of the Court 21-12527
court—pro se or counseled—are required to comply with
applicable procedural rules. See Albra v. Advan, Inc., 490 F.3d 826,
829 (11th Cir. 2007) (per curiam).
We will generally review a dismissal for failure to prosecute
for abuse of discretion. Gratton v. Great Am. Commc’ns, 178 F.3d
1373, 1374 (11th Cir. 1999); see also M.D. Fla. Civ. R. 3.10
(providing that a plaintiff’s failure to prosecute “can result in
dismissal if the plaintiff in response to an order to show cause fails
to demonstrate due diligence and just cause for delay”).
Under the Federal Rules of Civil Procedure, a plaintiff must
serve all defendants with a copy of the complaint within 90 days of
filing it. Fed. R. Civ. P. 4(m). The district court “must extend the
time for service for an appropriate period” if the plaintiff shows
good cause for failure to perfect service within the 90-day period.
Id. A plaintiff can show good cause by indicating that “some
outside factor, such as reliance on faulty advice, rather than
inadvertence or negligence, prevented service.” See Lepone-
Dempsey v. Carroll Cnty. Comm’rs, 476 F.3d 1277, 1281 (11th Cir.
2007) (alteration adopted).
If the district court determines that a plaintiff has failed to
show good cause for failure to timely effect service, “the district
court must still consider whether any other circumstances warrant
an extension of time based on the facts of the case.” Id. at 1282.
“Only after considering whether any such factors exist may the
district court exercise its discretion and either dismiss the case
USCA11 Case: 21-12527 Date Filed: 02/11/2022 Page: 7 of 8
21-12527 Opinion of the Court 7
without prejudice or direct that service be effected within a
specified time.” Id.
“The court’s power to dismiss is an inherent aspect of its
authority to enforce its orders and insure prompt disposition of
lawsuits.” Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985).
But dismissal of a complaint with prejudice “is considered a
sanction of last resort, applicable only in extreme circumstances.”
Goforth, 766 F.2d at 1535.
The local rules for the Middle District of Florida provide that
a party must respond to a motion to dismiss within 21 days after
service of the motion. M.D. Fla. Civ. R. 3.01(c). Likewise, Local
Rule 3.10(a) provides that “[w]henever it appears that any case is
not being diligently prosecuted the Court may, on motion of any
party or on its own motion, enter an order to show cause why the
case should not be dismissed, and if no satisfactory cause is shown,
the case may be dismissed by the Court for want of prosecution.”
M.D. Fla. Civ. R. 3.10; see also Fed. R. Civ. P. 41(b).
We grant CSX’s motion for summary affirmance because no
substantial question exists as to whether the district court abused
its discretion in dismissing Mathis’s suit. It did not. To be sure, the
magistrate judge’s June 2020 order instructing Mathis not to serve
the defendants arguably relieved him of his duty to perfect service
temporarily until the court made a determination as to whether he
could proceed IFP. But then Mathis paid the filing fee, the district
court denied the IFP motion as moot, and Mathis still did not
perfect service. And the district court issued a show-cause order in
USCA11 Case: 21-12527 Date Filed: 02/11/2022 Page: 8 of 8
8 Opinion of the Court 21-12527
September 2020 asking Mathis why the case should not be
dismissed for failure to prosecute. Mathis responded that he was
“engaged and ready to proceed” but he still did not serve the
defendants. Six months later, in March 2021, the defendants
moved to dismiss the case for lack of service, and although Mathis
again reiterated that he was “engaged” and “more than ready” to
proceed and acknowledged that he had mistakenly believed the
district court would perfect service, he again failed to serve the
defendants before the district court’s June 29, 2021, order
dismissing the case. And despite the show-cause orders and motion
to dismiss—all of which highlighted Mathis’s lack of compliance
with Rule 4(m) and Local Rule 3.10(a)—Mathis never once
requested an extension of time to serve the defendants.
In addition, Mathis’s excuses for his failure to comply with
the service rules—a general misunderstanding of the litigation
process and mental health issues—were not “outside factor[s]” that
“prevented service.” See Lepone-Dempsey, 476 F.3d at 1281; see
also Albra, 490 F.3d at 829 (clarifying that pro se litigants must
abide by procedural rules). The district court therefore did not
abuse its discretion when it dismissed Mathis’s suit.
Accordingly, no substantial question exists as to the
outcome of the case, and summary affirmance is proper. See
Groendyke Transp., 406 F.2d at 1162. We GRANT CSX’s motion
for summary affirmance and DENY as moot its motion to stay the
briefing schedule.