us attorneys brief

8/3/2019 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


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

Case: 11-10278 Date Filed: 05/10/2011 Page: 1 of 30


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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


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


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


Chief, Appellate Division

By:



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

_____________________________



gkpr/no 4/18/11


us attorneys brief

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