Davis v. The City of Selma et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ERIK DAVIS, 	*
*
Plaintiff, 	*
*
vs. 	* CIVIL ACTION NO. 25-00101-KD-B
*
THE CITY OF SELMA, et al., 	*
*
Defendants. 	*
ORDER
This 	action 	is 	before 	the 	Court 	on 	review.1 	Plaintiff 	Erik
Davis, 	who 	is 	proceeding 	without 	an 	attorney 	(pro 	se), 	commenced
this 	action 	in 	the 	United 	States 	District 	Court 	for 	the 	Middle
District of Alabama. 	(Docs. 1, 2, 3). 	The case was subsequently
transferred 	to 	the 	United 	States 	District 	Court 	for 	the 	Southern
District 	of 	Alabama. 	(Docs. 	4, 	5). 	In 	an 	order 	dated 	March 	17,
2025, 	this 	Court 	struck 	Davis’s 	complaint 	as 	an 	impermissible
shotgun 	pleading 	and 	granted 	Davis 	leave 	to 	file 	an 	amended
complaint 	on 	or 	before 	April 	17, 	2025. 	(Doc. 	6 	at 	8). 	In 	the
same 	order, 	the 	Court 	denied 	Davis’s 	motion 	to 	proceed 	without
prepayment 	of 	fees 	without 	prejudice 	and 	ordered 	Davis 	to 	either
file 	an 	amended 	IFP 	motion 	or 	pay 	the 	$405 	filing 	and
administrative fees for a civil action on or before April 17, 2025.
1 This case has been referred to the undersigned Magistrate Judge
for appropriate action pursuant to 28 U.S.C. § 636(b)(1) and S.D.
Ala. GenLR 72(a)(2)(S).
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(Id. 	at 	13). 	On 	April 	22, 	2025, 	Davis 	paid 	the 	$405 	filing 	and
administrative 	fees 	for 	this 	action, 	and 	the 	Court 	extended 	the
deadline for Davis to file an amended complaint to April 28, 2025.
(Docs. 	8, 	9). 	On 	May 	2, 	2025, 	Davis 	filed 	a 	motion 	for 	leave 	to
file 	an 	amended 	complaint, 	along 	with 	a 	proposed 	first 	amended
complaint and exhibits. 	(Docs. 10, 10-1, 10-2, 10-3, 10-4).
I. 	Motion for Leave to Amend
“Plaintiffs 	are 	entitled 	to 	amend 	their 	complaint 	once 	as 	a
matter 	of 	course 	prior 	to 	service.” 	Ravan 	v. 	Benton, 	2021 	U.S.
Dist. LEXIS 180333, at *4, 2021 WL 4270127, at *2 (S.D. Ga. Sept.
2, 	2021) 	(citing 	Fed. 	R. 	Civ. 	P. 	15(a)(1)), 	report 	and
recommendation 	adopted, 	2021 	U.S. 	Dist. 	LEXIS 	178926, 	2021 	WL
4269877 (S.D. Ga. Sept. 20, 2021); see also Open on Sunday LLC v.
Michel, 2023 U.S. Dist. LEXIS 100396, at *2 n.2, 2023 WL 3875051,
at 	*1 	n.2 	(N.D. 	Ga. 	Apr. 	28, 	2023) 	(“Plaintiff 	amended 	its
complaint 	before 	service 	of 	process 	had 	been 	executed 	on 	any 	of
the 	named 	Defendants 	and 	thus 	was 	able 	to 	amend 	as 	a 	matter 	of
course.”); Fed. R. Civ. P. 15(a)(1). 	Davis has not served any of
the defendants with process in this case, and the Court has already
granted 	Davis 	leave 	to 	file 	an 	amended 	complaint 	to 	correct
pleading deficiencies. 	Therefore, it was unnecessary for Davis to
file 	a 	motion 	for 	leave 	to 	amend 	his 	complaint. 	However, 	though
unnecessary, 	Davis’s 	motion 	for 	leave 	to 	amend 	(Doc. 	10) 	is
GRANTED. 	The 	Clerk 	of 	Court 	is 	DIRECTED 	to 	docket 	the 	proposed
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first amended complaint with exhibits (Docs. 10-1, 10-2, 10-3, 10-
4) 	in 	a 	new 	and 	separate 	docket 	entry 	as 	Davis’s 	first 	amended
complaint, which is now Davis’s operative pleading in this case.
II. 	Service of Process Requirement
Davis is hereby informed that because he paid the filing fee
and 	is 	not 	proceeding 	in 	forma 	pauperis 	in 	this 	action, 	he 	is
responsible for timely serving process on each of the defendants.
See, e.g., Lepone-Dempsey v. Carroll Cty. Comm’rs, 476 F.3d 1277,
1280–81 (11th Cir. 2007) (“A plaintiff is responsible for serving
the 	defendant 	with 	a 	summons 	and 	the 	complaint 	within 	the 	time
allowed under Rule 4(m).”); D’alessandro v. Lane, 2022 U.S. Dist.
LEXIS 	168925, 	at 	*6, 	2022 	WL 	4305605, 	at 	*2 	(M.D. 	Fla. 	Sept. 	19,
2022) 	(“Because 	Plaintiff 	paid 	the 	full 	filing 	fee 	and 	is 	not
proceeding 	as 	a 	pauper, 	he 	is 	responsible 	for 	service 	of
process.”).2
Pursuant to Federal Rule of Civil Procedure 4(m), a plaintiff
must complete service of process on a defendant within ninety days
after 	his 	complaint 	is 	filed.3 	See 	Fed. 	R. 	Civ. 	P. 	4(m). 	Davis
2 The Court notes that Davis has already been provided with a copy
of 	this 	Court’s 	Pro 	Se 	Litigant 	Handbook. 	Davis 	is 	referred 	to
the 	Pro 	Se 	Litigant 	Handbook 	(in 	particular, 	pages 	22-24) 	for
information on completing service of process.
3 Rule 4(m) states, in relevant part:
If 	a 	defendant 	is 	not 	served 	within 	90 	days 	after 	the
complaint 	is 	filed, 	the 	court--on 	motion 	or 	on 	its 	own
(Continued)
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filed his complaint in this case on February 28, 2025; therefore,
the 	current 	Rule 	4(m) 	deadline 	for 	Davis 	to 	complete 	service 	of
process 	on 	all 	defendants 	is 	May 	29, 	2025.4 	However, 	given 	that
Davis is proceeding pro se and only recently amended his complaint
and paid the filing fee, the Court will sua sponte extend the time
for Davis to complete service of process on the defendants in this
case. 	The 	deadline 	for 	Davis 	to 	complete 	service 	of 	process 	on
all defendants pursuant to Federal Rule of Civil Procedure 4(m) is
hereby EXTENDED to June 30, 2025.5
Davis 	is 	cautioned 	that 	if 	he 	does 	not 	complete 	service 	of
process on a defendant by this deadline and does not file a timely
after 	notice 	to 	the 	plaintiff--must 	dismiss 	the 	action
without 	prejudice 	against 	that 	defendant 	or 	order 	that
service 	be 	made 	within 	a 	specified 	time. 	But 	if 	the
plaintiff 	shows 	good 	cause 	for 	the 	failure, 	the 	court
must 	extend 	the 	time 	for 	service 	for 	an 	appropriate
period.
Fed. R. Civ. P. 4(m).
4 The ninety-day time limit for service “provided by Rule 4(m) is
not 	restarted 	by 	the 	filing 	of 	an 	amended 	complaint 	except 	as 	to
those defendants newly added in the amended complaint.” 	Bolden v.
City 	of 	Topeka, 	441 	F.3d 	1129, 	1148 	(10th 	Cir. 	2006). 	Davis’s
amended 	complaint 	does 	not 	add 	any 	new 	defendants 	and 	therefore
does 	not 	restart 	the 	clock 	with 	respect 	to 	the 	ninety-day 	time
limit for completing service of process under Rule 4(m).
5 “If service is completed by summons, the party or person making
service shall file proof thereof within seven (7) days of the date
of service.” 	S.D. Ala. CivLR 4(a)(1). 	Likewise, “[i]f service is
waived [by a defendant], [the plaintiff] shall file the waiver of
service with the Court within seven (7) days after receipt of the
waiver.” 	S.D. Ala. CivLR 4(a)(2).
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motion for an extension of time showing good cause for the failure
to complete service by the deadline, the undersigned will recommend
that 	this 	action 	be 	dismissed 	without 	prejudice 	against 	the
unserved 	defendant 	pursuant 	to 	Federal 	Rule 	of 	Civil 	Procedure
4(m).
DONE this 20th day of May, 2025.
/S/ SONJA F. BIVINS 	_
UNITED STATES MAGISTRATE JUDGE
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