LUZIER v HUGGINS et al

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
JOSEPH LUZIER, III,
Plaintiff,
v. 	Case No. 4:24-cv-524-MW-MJF
V. HUGGINS, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
The undersigned recommends that this case be dismissed without
prejudice for Plaintiff’s failure to comply with court orders and failure to
timely serve Defendants.
P ROCEDURAL H ISTORY
Almost one year ago, on February 21, 2025, Plaintiff filed an
amended civil-rights complaint. Doc. 10. Plaintiff is suing six prison
officials who worked at the Wakulla Correctional Institution: Sergeant
Huggins, 	Sergeant 	Chunn, 	Sergeant 	Spivey, 	Sergeant 	Hitchcock,
Classification Supervisor Pridgeon and Warden Allen. Plaintiff alleges
that in September 2022, Defendants were deliberately indifferent to
Plaintiff’s safety when they housed Plaintiff in a particular dormitory
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despite Plaintiff’s “safety concern” and Plaintiff’s request to be housed in
a different dormitory.
On March 28, 2025, the undersigned ordered Plaintiff to comply
with Rule 4’s service requirements by June 26, 2025. Doc. 11 (citing Fed.
R. Civ. P. 4(c)(1), (m)).1
Two 	days 	before 	that 	deadline, 	on 	June 	24, 	2025, 	Plaintiff
requested, and the clerk of court issued a summons for each Defendant
and provided the summonses to a process server. Doc. 22. Attorney James
G. Kontos, who has not appeared in this case, emailed copies of Plaintiff’s
original complaint to the process server. See Doc. 40 at 4; see also Doc.
30-1; Doc. 30-2; Doc. 30-3; Doc. 30-4 (copies of documents provided to
process server and served).
On June 27, 2025, the process server personally served Defendants
Spivey, Huggins, Chunn and Pridgeon with a summons and copy of
Plaintiff’s original complaint. See Docs. 23, 30-1, 30-2, 33. On July 2,
2025, the process server personally served Defendant Hitchcock with a
summons and copy of Plaintiff’s original complaint. See Doc. 30-3. On
1 Plaintiff paid the filing fee. Doc. 6.
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July 16, 2025, the process server personally served Defendant Allen with
a summons and copy of Plaintiff’s original complaint. See Doc. 30-4.
Defendants 	moved 	to 	quash 	process 	and 	to 	dismiss 	this 	case
because 	they 	were 	not 	served 	with 	the 	operative 	complaint—the
amended complaint. Doc. 30. On October 17, 2025, the District Court
determined 	that 	service 	was 	defective, 	quashed 	service, 	and 	gave
Plaintiff an opportunity to cure the service defect. Doc. 46. The District
Court ordered Plaintiff to properly serve each Defendant by
November 12, 2025. Id.
On October 31, 2025, Plaintiff requested that the service deadline
be extended to November 27, 2025. Doc. 48. The undersigned granted
Plaintiff’s request and extended Plaintiff’s deadline to November 27,
2025. Doc. 49.
On November 25, 2025, Plaintiff requested an additional extension
and pledged that Plaintiff would serve Defendants by December 11, 2025.
Doc. 50. The undersigned granted the extension and ordered Plaintiff to
provide—by December 29, 2025—proof that Plaintiff properly served
each Defendant on or before December 11, 2025. Doc. 51.
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Plaintiff did not serve Defendants. On December 29, 2025, Plaintiff
filed a “Motion to Compel.” Doc. 52. Plaintiff alleged that Plaintiff’s
process server told Plaintiff that “Defendants are not making themselves
available for service” at the employment addresses Plaintiff provided. Id.
at 1. Plaintiff requested that this court:
(1) “order Defendants to make themselves available for service no
later than January 30, 2026”;
(2) “waive service of the Amended Complaint”;
(3) “grant an extension again to serve the Defendants due to it being
no fault of the Plaintiff that Defendants have not been served.”
Doc. 52 at 2.
On January 9, 2026, this court denied Plaintiff’s motion to compel
because Plaintiff’s bald accusation that Defendants were evading service
ran counter to facts of record. See Doc. 53 at 3; see also Doc. 44 at 13
(noting that the original service returns established that Defendants
“made themselves available” for service the very day the process server
contacted them at their places of employment).
Also, Plaintiff offered no legal authority for the proposition that a
court may “waive” the service requirement. Id. at 3–4. Lastly, the fact
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that Plaintiff’s process server was not successful in serving Defendants
did not, by itself, show good cause for Plaintiff’s failure to comply with
the service deadline. Id. at 4. Nevertheless, this court accommodated
Plaintiff a “final time” and gave Plaintiff until January 30, 2026—the
date Plaintiff requested—to properly serve each Defendant or obtain a
waiver of service. Doc. 53 at 4–5. The undersigned warned Plaintiff that:
“It is likely that this court will not grant any further extensions
of time. . . .” Id. at 4.
On January 21, 2026, Plaintiff filed another motion for extension of
time. Doc. 56. Specifically, Plaintiff requested “an Order giving the
Plaintiff until March 2, 2026 to properly serve the Defendants and
provide proof to this Court.” Id. at 2–3. In support, Plaintiff alleged:
(1) Plaintiff was in the hospital from December 29, 2025 to January
6, 2026, and was released to the South Florida Reception Center;
(2) Plaintiff “never received a copy of this Court’s Order” dated
January 9, 2026;
(3) Plaintiff’s legal property was at Dade CI; and
(4) Plaintiff was unable to contact his process server until Plaintiff
received his legal property.
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Doc. 56.
On January 27, 2026, the undersigned denied an extension of time
because Plaintiff failed to show good cause for a further extension. Doc.
57. Although Plaintiff alleged that he never received a copy of the
January 9, 2026 order, the record reflected that on January 13, 2026
Plaintiff left a voicemail with the clerk of this court stating that Plaintiff
was aware of the January 9 order. Doc. 54. Plaintiff requested that the
clerk of court send a copy of the January 9 order to Plaintiff at the South
Florida Reception Center. Id. That same day, the clerk of court mailed a
copy of the January 9 order to Plaintiff at SFRC, along with the waiver
forms accompanying that order. Id.
Plaintiff also failed to show that the earlier hospitalization and
alleged lack of access to legal property impeded Plaintiff’s ability to
comply 	with 	the 	January 	30 	deadline. 	On 	the 	contrary, 	Plaintiff
demonstrated that he had been able to promptly access and obtain
necessary information and court documents through alternative means.
Accordingly, the undersigned denied an additional extension and ordered
Plaintiff to file the following by January 30, 2026:
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1. 	proof 	that 	each 	Defendant 	was 	properly 	served 	with 	a
summons and copy of Plaintiff’s amended complaint, OR
2. 	proof that Plaintiff mailed to each Defendant a request to
waive service in compliance with Federal Rule of Civil Procedure
4(d)(1).
Doc. 57. The undersigned warned Plaintiff that failure to file the required
items by the January 30, 2026 deadline would result in this case being
dismissed for Plaintiff’s failure to comply with a court order and failure
to timely serve Defendants.
To date, Plaintiff has not filed proof that by the January 30
deadline, each Defendant was properly served or was mailed a request to
waive service.
F EDERAL RULE OF CIVIL P ROCEDURE 4(m)
Federal Rule of Civil Procedure 4(m) provides that “[i]f a defendant
is not served within [ninety] days after the complaint is filed, the court .
. . must dismiss the action without prejudice against that defendant or
order that service be made within a specified time.” Fed. R. Civ. P. 4(m).
“But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.” Id.
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Before dismissing an action under Rule 4(m), a district court also
must “consider whether any other circumstances warrant 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 	quotation 	marks 	omitted).
Circumstances that may warrant an extension of time include when the
statute of limitations would prevent refiling. See Lepone-Dempsey v.
Carroll Cnty. Comm’rs, 476 F.3d 1277, 1282 (11th Cir. 2007).
D ISCUSSION
Plaintiff has not timely served Defendants or requested waivers of
service. Plaintiff has not established good cause for a further extension.
Plaintiff’s incarceration does not establish good cause. Plaintiff has had
access to a process server, and has the means to communicate by
telephone and mail.
Additionally, the record establishes that from the outset of this
case, Plaintiff has been assisted by more than one attorney. See Doc. 16
at 2-3 (describing assistance from attorney Loren Rhoton); Doc. 19 at 2
n.2 (same); Doc. 18 at 1 (Plaintiff’s statement: “Plaintiff . . . only received
notice of recent Court Order on June 1st, 2025 by an attorney, . . .”); Doc.
25-1 (service return indicating that service was arranged by “James
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Kontos, 	Law 	Office 	Of 	James 	G. 	Kontos”); 	Doc. 	40 	at 	4 	(Plaintiff
describing assistance from Kontos); Doc. 40, Ex. A (process server’s
invoice listing Plaintiff’s contact number as “(321) 242-9777” which is
Kontos’s law office).
The record does not suggest that there are any circumstances that
warrant a further extension. The statute of limitations does not warrant
an extension, because the events giving rise to this lawsuit occurred in
September 2022.
Because Plaintiff failed to timely serve Defendants and has not
shown good cause for a further extension of time to do so, the District
Court should dismiss this case under Rule 4(m). See, e.g., Daker v. Ward,
No. 23-10609, 2023 WL 7182358, at *3–4 (11th Cir. Nov. 1, 2023) (district
court did not abuse its discretion when it refused to order United States
Marshals Service to effect service on Defendants, and dismissed fee-
paying prisoner’s complaint under Rule 4(m)).
CONCLUSION
For 	the 	reasons 	set 	forth 	above, 	the 	undersigned 	respectfully
recommends that the District Court:
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1. 	DISMISS this civil action without prejudice for Plaintiff’s
failure to timely effect service or obtain waivers of service.
2. 	DIRECT the clerk of the court to enter judgment accordingly
and close this case file.
At Panama City, Florida, this 12th day of February, 2026.
/s/ Michael J. Frank
Michael J. Frank
United States Magistrate Judge
NOTICE TO THE PARTIES
The District Court referred this case to a magistrate
judge to make recommendations regarding dispositive
matters. See 28 U.S.C. § 636(b)(1)(B), (C). Objections to
these proposed findings and recommendations must be
filed within fourteen days of the date of the report and
recommendation. 	Any 	different 	deadline 	that 	may
appear 	on 	the 	electronic 	docket 	is 	for 	the 	court’s
internal use only. A party must serve a copy of any
objections on all other parties. A party who fails to
object to this report and recommendation waives the
right to challenge on appeal the District Court’s order
based on unobjected-to factual and legal conclusions.
See 11th Cir. R. 3-1; 28 U.S.C. § 636.
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