Cathleen Gary v. DeKalb County Govt. , 177 F. App'x 881 ( 2006 )


Menu:
  •                                                      [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    APR 18, 2006
    No. 05-13919                 THOMAS K. KAHN
    Non-Argument Calendar                CLERK
    ________________________
    D. C. Docket No. 05-00158-CV-CAP-1
    CATHLEEN GARY,
    Plaintiff-Appellant,
    versus
    DEKALB COUNTY GOVERNMENT,
    VERNON JONES, CEO,
    DEKALB COUNTY SHERIFF,
    THOMAS BROWN,
    DEKALB POLICE DEPARTMENT, et al.,
    Defendants-Appellees.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    _________________________
    (April 18, 2006)
    Before MARCUS, WILSON and PRYOR, Circuit Judges.
    PER CURIAM:
    Cathleen Gary filed her pro se complaint on November 23, 2004, alleging
    that various government entities and employees violated her civil rights. See 
    42 U.S.C. § 1983
    . The district court, sua sponte, dismissed Gary’s claim for failure to
    serve the defendants with a copy of the summons and complaint within 120 days of
    filing her complaint. See Fed. R. Civ. P. 4(m). Gary now appeals that dismissal,
    and we review for abuse of discretion. Brown v. Nichols, 
    8 F.3d 770
    , 775 (11th
    Cir. 1993).
    Gary argues that the district court did not provide her with notice before it
    dismissed her complaint and that she could show good cause for the delay because
    her delay was based on improper advice from the district court. Rule 4(m) states,
    “If service of the summons and complaint is not made upon a defendant within 120
    days after the filing of the complaint, the court, upon motion or on its own
    initiative after notice to the plaintiff, shall dismiss the action without prejudice . . .”
    (emphasis added). Because there is no evidence in the record that Gary was given
    notice and an opportunity to “show[] good cause for the failure” to serve the
    defendants, Fed. R. Civ. P. 4(m), the district court abused its discretion when it
    dismissed Gary’s claim. We vacate the ruling of the district court and remand for
    further proceedings in accordance with Rule 4(m).
    VACATED and REMANDED.
    2
    

Document Info

Docket Number: 05-13919; D.C. Docket 05-00158-CV-CAP-1

Citation Numbers: 177 F. App'x 881

Judges: Marcus, Per Curiam, Pryor, Wilson

Filed Date: 4/18/2006

Precedential Status: Non-Precedential

Modified Date: 8/2/2023