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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13660
Non-Argument Calendar
____________________
WASEEM DAKER,
Plaintiff-Appellant,
versus
TIMOTHY WARD,
GDC Assistant Commissioner,
et al.,
Defendants,
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2 Opinion of the Court 21-13660
ROBERT TOOLE,
GDC Field Operations Director,
GEORGIA DEPARTMENT OF CORRECTIONS,
GREGORY MCLAUGHLIN,
Former Warden at Macon State Prison,
PETER EADDIE,
Macon State Prison Warden of Security,
TIMOTHY SALES,
Macon State Prison Warden of Security,
et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:19-cv-00126-MTT-CHW
____________________
Before ROSENBAUM, JILL PRYOR, and BRASHER, Circuit Judges.
PER CURIAM:
Waseem Daker, a Georgia state prisoner proceeding pro se,
brought this action against six dozen defendants who currently or
formerly worked for the Georgia Department of Corrections
(“GDC”) in various state facilities where Mr. Daker was (or
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21-13660 Opinion of the Court 3
continues to be) held in custody. Mr. Daker is a Muslim man, and
his complaint alleged, among other things, that the GDC main-
tained an unconstitutional grooming policy by requiring male pris-
oners to wear a beard no longer than one-half inch. He further al-
leged that the GDC had a policy of using force to administer the
one-half-inch beard restriction. He claimed that these policies vio-
lated the First Amendment, Eighth Amendment, and the Religious
Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.
§§ 2000cc, et seq.
On appeal, Mr. Daker challenges the district court’s dismis-
sal of his claims related to four forced-shaving incidents as frivo-
lous, duplicative, or malicious under the screening provision of the
Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A. He also
challenges the district court’s dismissal of the remaining claims in
his complaint for failure to timely serve the defendants under Fed-
eral Rule of Civil Procedure 4(m). After careful review, we con-
clude that the district court did not dismiss the claims related to the
forced-shaving incidents about which Mr. Daker complains on ap-
peal, and thus did not err. Regarding the district court’s dismissal
for failure to timely serve the defendants, we conclude that the dis-
trict court abused its discretion in dismissing the complaint without
considering whether there were circumstances that warranted an
extension of time for Mr. Daker to properly serve them. We there-
fore affirm in part, vacate in part, and remand to the district court
for further consideration.
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4 Opinion of the Court 21-13660
I. BACKGROUND
Waseem Daker is a prisoner in Georgia state custody. Ac-
cording to Mr. Daker, as a Muslim man, he is required to wear a
beard at least the length of his fist. For him, a fist-length beard
would measure three inches. But GDC’s grooming policy prohibits
Mr. Daker from growing a beard longer than one-half inch. Mr.
Daker filed a complaint bringing claims under 42 U.S.C. § 1983 and
the RLUIPA against numerous current and former GDC officials,
alleging that this policy violated his constitutional rights under the
First Amendment and Eighth Amendment and his rights under the
RLUIPA.
In his complaint, Mr. Daker alleged that on at least 15 occa-
sions between 2015 and 2019, GDC officials used threats and actual
force, including pepper spray and tasers, to shave or attempt to
shave his beard. He further alleged that GDC officials used dam-
aged, broken, and unsanitary clippers to do the shaving, contrary
to GDC’s own standard operating procedures, and that this con-
duct placed Mr. Daker in danger of contracting an infection. Ac-
cording to the complaint, in one incident, he was left with multiple
injuries after he was handcuffed, dragged, held down, and choked
while a fellow prisoner shaved him with dirty clippers. Following
another forced shaving, a GDC official allegedly reported Mr.
Daker for failing to follow instructions and assaulting staff. As a re-
sult, Mr. Daker was put in solitary confinement.
As required by the PLRA’s screening provision, the magis-
trate judge sua sponte reviewed Mr. Daker’s complaint. See 28
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U.S.C. § 1915A(a). The magistrate judge recommended that Mr.
Daker’s claims related to four forced-shaving incidents—on June
13, 2018; September 18, 2018; February 18, 2019; and July 12,
2019—be permitted to proceed for further factual development.
The magistrate judge recommended that all other claims should be
dismissed without prejudice because they were frivolous, duplica-
tive, malicious, or failed to state a claim upon which relief may be
granted under 1915A(b)(1). For the claims that survived screen-
ing—those related to the four forced-shaving incidents—Mr. Daker
was ordered to serve all the defendants within 90 days.
The magistrate judge entered this recommendation on Jan-
uary 5, 2021. The magistrate judge advised that failure to object
would “waive[] the right to challenge on appeal the district judge’s
order based on factual and legal conclusions to which no objection
was timely made.” Doc. 41 at 31. 1 Although Mr. Daker initially had
14 days to file any objections to the magistrate judge’s recommen-
dation, the district court granted Mr. Daker’s motion for an exten-
sion and allowed him until March 24 to object.
On April 1, 2021, the district court issued an order adopting
the magistrate judge’s recommendation in full, dismissing many of
Mr. Daker’s claims but allowing the claims related to the four
forced-shaving incidents to proceed. In its order, the district court
noted that Mr. Daker had not objected to the magistrate judge’s
recommendation. About two weeks later, the district court
1 “Doc.” numbers refer to the district court’s docket entries.
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received an objection from Mr. Daker, which he had signed and
dated on March 23. As relevant here, Mr. Daker objected that his
claims related to the forced-shaving incidents were not duplicative,
and that his claims concerning GDC’s forced-shaving policy were
not vexatious and harassing.
The district court entered a new order on May 26 that ad-
dressed Mr. Daker’s objection. The court first explained that Mr.
Daker’s objection was untimely then affirmed its conclusions in the
April 1 order, stating that even if it considered the objection, it still
would adopt the magistrate judge’s recommendation to dismiss
some of Mr. Daker’s claims and allow those related to the four
forced-shaving incidents to proceed.
With respect to the court’s direction that the remaining
claims be served on the defendants within 90 days of the January 5,
2021 order, Mr. Daker moved for service by the United States Mar-
shals Service (“USMS”). See Fed. R. Civ. P. 4(c)(3) (providing that
a district court may order the U.S. Marshal to effectuate service).
He argued that, due to his incarceration, he lacked access to re-
sources, including a phone, with which to identify and contact pro-
cess servers. In addition, he did not have the defendants’ home ad-
dresses and was not likely to obtain them because they were cor-
rectional officials and he would have to serve them at their work
addresses, to which private process servers would not have access.
The district court denied his request in February.
Three months later, when Mr. Daker still had not served the
defendants, the district court ordered that he show cause why the
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21-13660 Opinion of the Court 7
entire case should not be dismissed for failure to serve the defend-
ants. In response to the order to show cause, Mr. Daker renewed
his request that the court order the USMS to effectuate service.
Finally, in October, when Mr. Daker still had not served the
defendants, the district court denied his renewed request for the
USMS to effectuate service and dismissed the case for failure to
serve the defendants. After acknowledging that under Rule 4(m)
courts must extend the time for service if a plaintiff shows good
cause, the district court rejected Mr. Daker’s arguments. The court
considered his argument that he did “not have the ability to serve
the defendants because he [was] in prison” and did “not have any-
one to help him contact process servers” or locate addresses for the
defendants. Doc. 63 at 3–4. But the court rejected the argument
and denied Mr. Daker’s motion, explaining that Mr. Daker had
“demonstrated that he [was] capable of perfecting service” in the
past and found that he had “the financial means to hire an attorney”
to assist him in serving defendants, as he had in past cases. Id. Fur-
ther, because he failed to show “good cause why he has failed to
serve the defendants,” and more than 90 days had passed since the
court ordered that service be completed, the district court dis-
missed all the remaining claims—that had previously survived
§ 1915A screening—without prejudice. Id. at 5.
Mr. Daker now appeals the district court’s order dismissing
with prejudice some of his claims under § 1915A and dismissing
without prejudice the remaining claims for failure to serve the de-
fendants.
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8 Opinion of the Court 21-13660
II. STANDARD OF REVIEW
This Court reviews de novo a district court’s sua sponte dis-
missal for failure to state a claim under 28 U.S.C. 1915A(b)(1). See
Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017). A dis-
trict court’s dismissal of a complaint as frivolous under 1915A(b)(1)
is reviewed for abuse of discretion. Miller v. Donald, 541 F.3d 1091,
1100 (11th Cir. 2008).
We review for abuse of discretion both a district court’s sua
sponte dismissal for failure to timely serve a defendant under Fed-
eral Rule of Civil Procedure 4(m) and a district court’s decision to
grant or deny an extension of time to serve a defendant. Rance v.
Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286 (11th Cir. 2009).
“The abuse of discretion review requires us to affirm unless we find
that the district court has made a clear error of judgment, or has
applied the wrong legal standard.” Id. (internal quotation marks
omitted).
III. DISCUSSION
We first address whether the district court erred in dismiss-
ing some of Mr. Daker’s claims under the PLRA’s screening provi-
sion, 28 U.S.C. § 1915A(b)(1). Next, we address whether the district
court abused its discretion when it denied Mr. Daker’s motions for
service by the USMS and dismissed his complaint for failure to
serve the defendants.
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21-13660 Opinion of the Court 9
A. The District Court Did Not Err Because It Allowed Mr.
Daker’s Forced-Shaving Claims to Proceed.
Mr. Daker contends that the district court erred by dismiss-
ing his claims related to forced-shaving incidents that occurred on
six dates: June 13, 2018; September 18, 2018; February 18, 2019; July
12, 2019; September 25, 2019; and April 3, 2020. Mr. Daker says the
district court dismissed these claims as duplicative, frivolous, or
malicious under the PLRA’s screening provision, 28 U.S.C.
1915A(b)(1). 2 But the operative complaint did not allege any claims
related to forced-shaving incidents on either September 25, 2019 or
April 3, 2020, so the magistrate judge’s recommendation and the
district court’s order did not address, let alone dismiss, such claims.
Notably, Mr. Daker does not dispute that his claims related to
forced-shaving incidents that were litigated in his earlier cases were
2 The PLRA requires a district court to review sua sponte a complaint in which
a prisoner seeks redress from a governmental entity or officer or employee of
a governmental entity. See 28 U.S.C. § 1915A(a). The statute directs a district
court to “dismiss the complaint, or any portion of the complaint” that “is friv-
olous, malicious, or fails to state a claim upon which relief may be granted.”
Id. § 1915A(b)(1). Mr. Daker’s arguments are primarily based upon the lan-
guage in 28 U.S.C. § 1915(e)(2)(B)(i), which applies to prisoner-plaintiffs who
are proceeding in forma pauperis and instructs courts to dismiss if the action
is “frivolous [or] malicious.” Section 1915A(b)(1)’s screening provision, which
applies to all prisoner-plaintiffs, uses the language “duplicative, frivolous or
malicious.” The magistrate judge’s recommendation, which the district court
adopted, properly screened Mr. Daker’s complaint under § 1915A.
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10 Opinion of the Court 21-13660
properly dismissed as duplicative. 3 Thus, there are only four
forced-shaving incidents at issue in this appeal.
Although Mr. Daker did not timely object to the magistrate
judge’s recommendation that the district court’s order adopted, we
nonetheless may, in the interests of justice, review for plain error
Mr. Daker’s challenge to the dismissal of his claims arising out of
the four forced-shaving incidents. See 11th Cir. R. 3-1. Here,
though, there was no error at all. The complex procedural history
in this case appears to have obscured which of Mr. Daker’s claims
were dismissed by the district court under § 1915A, and which were
allowed to proceed. The court did dismiss some of Mr. Daker’s
claims under § 1915A—but it did not dismiss the claims related to
the four forced-shaving incidents that Mr. Daker raises on appeal.
Instead, the district court did exactly what Mr. Daker asks for on
appeal: it determined that these claims were not duplicative and
should be allowed to proceed for further factual development.
Thus, there was no error here.
B. The District Court Abused Its Discretion in Dismissing
Mr. Daker’s Other Claims Based on Lack of Service.
Mr. Daker next argues the district court abused its discretion
by dismissing his complaint for failure to serve the defendants after
he filed multiple motions for service by the USMS.
3 Because Mr. Daker does not challenge the dismissal of these earlier-litigated
claims as duplicative, we affirm the district court’s dismissal of them.
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21-13660 Opinion of the Court 11
When a defendant is not served within 90 days of the filing
of a complaint, the district court, either on motion or on its own
after notice to the plaintiff, “must dismiss the action without prej-
udice against that defendant or order that service be made within
a specified time.” Fed R. Civ. P. 4(m). But if a plaintiff shows “good
cause” for failure to timely serve, the court “must extend the time
for service for an appropriate period.” Id. “Good cause exists only
when some outside factor, such as reliance on faulty advice, rather
than inadvertence or negligence, prevented service.” Lepone-
Dempsey v. Carroll Cnty. Comm’rs, 476 F.3d 1277, 1281 (11th Cir.
2007) (alteration adopted) (internal quotation marks omitted). But
even when a plaintiff cannot demonstrate good cause, the district
court “must still consider whether any other circumstances war-
rant an extension of time based on the facts of the case.” Bilal v.
Geo Care, LLC, 981 F.3d 903, 919 (11th Cir. 2020) (internal quota-
tion marks omitted). In Bilal, we identified instances in which the
statute of limitations governing the claims brought by a plaintiff
would preclude refiling as a possible “other circumstance[]” that
might warrant an extension of time. Id. We further held that if a
district court dismissed a case under Rule 4(m) without considering
such other circumstances, the dismissal would be “premature.” Id.
(internal quotation marks omitted)
Whether a district court has discretion to order service by
the USMS under Rule 4(c)(3) hinges upon whether the plaintiff is
proceeding in forma pauperis (“IFP”). When a plaintiff who is not
proceeding IFP requests that a district court order that service be
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made by the USMS, the district court may grant such a request;
when a plaintiff is proceeding IFP, the district court must order that
service be made by the USMS. Fed. R. Civ. P. 4(c)(3). Mr. Daker
paid the filing fee in district court and on appeal; he did not seek
permission to proceed IFP. Thus, the decision whether to grant Mr.
Daker’s motions for service was within the district court’s discre-
tion.
Mr. Daker contends that the district court abused its discre-
tion in dismissing his case for failure to serve the defendants. To be
sure, the district court has discretion to grant or deny such a mo-
tion. But we have held that, even if the district court finds a plaintiff
has failed to show “good cause” under Rule 4(c)(3), prior to dis-
missing the complaint the district court must consider whether
other circumstances warrant an extension of time to effectuate ser-
vice. Bilal, 981 F.3d at 919. Here, the district court’s dismissal for
failure to serve was “premature, as it did not clearly consider, after
finding that plaintiff[] failed to demonstrate good cause, whether a
permissive extension of time was warranted under the facts of this
case.” Lepone-Dempsey, 476 F.3d at 1282. “Although the running
of the statute of limitations, which barred the plaintiffs from refil-
ing their claims, does not require that the district court extend time
for service of process under Rule 4(m), it was incumbent upon the
district court to at least consider this factor.” Id.
In this case, Mr. Daker’s repeated motions seeking an order
for service by the USMS explained the challenges thwarting his ef-
forts to locate the defendants’ addresses and timely effect service.
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And by dismissing the complaint, the district court’s order effec-
tively barred Mr. Daker from re-filing due to the statute of limita-
tions. Under our decision in Bilal, the district court was required to
engage in a two-step analysis. It first needed to consider whether
the obstacles Mr. Daker faced constituted “good cause” for an ex-
tension under Rule 4(m). In the event the district court found that
Mr. Daker had failed to demonstrate good cause, the district court
was required under Bilal then to expressly consider whether the
statute of limitations, or any other circumstances, nevertheless
warranted at least an extension of time. By failing to complete step
two, the district court abused its discretion.
Accordingly, we vacate in part the district court’s order dis-
missing Mr. Daker’s complaint for failure to perfect service, and
remand for further consideration.
IV. CONCLUSION
For the reasons discussed above, we affirm in part, vacate in
part, and remand for further consideration consistent with this
opinion.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.
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