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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 Assistant United States Attorney 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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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. 2. 3. 4. Albritton, A. Brian, former United States Attorney; Federal Bureau of Prisons; ONeill, Robert E., United States Attorney; 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. C. STATEMENT OF THE FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 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 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 iv PAGE NO.

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TABLE OF CITATIONS CASES CITED 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 v PAGE NO.

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TABLE OF CITATIONS CASES CITED 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 vi PAGE NO.

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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 89. 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, x

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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. 2

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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 3

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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 5

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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.3 The court stated that Nalls has maintained this 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 his 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. 6
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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 9

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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 individualcapacity 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.). 10

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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 served3 or even named any individual in an amended complaint, no individual 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 remaining 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 from the 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). 11

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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.4 Doc. 22. The district court was not required to wait indefinitely for 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 States agreed to produce medical records and prison records within two weeks. See Doc. 20 at 3. 13
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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 Assistant United States Attorney Chief, Appellate Division

By: MICHELLE THRESHER TAYLOR Assistant United States Attorney 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

_____________________________ MICHELLE THRESHER TAYLOR Assistant United States Attorney

gkpr/no 4/18/11

N:\_Appeal Cases\N\Nalls, Douglas_11-10278-EE_2009V04902_mtt\b_Nalls Douglas brief FINAL mtt.wpd