           Case: 16-15910   Date Filed: 04/17/2017   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-15910
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:15-cv-04308-WSD



ERIKA JACOBS,

                                                           Plaintiff-Appellant,

                                  versus

CLAYTON COUNTY SOLICITOR GENERAL OFFICE,
CLAYTON COUNTY STATE COURT OFFICE,
CLAYTON COUNTY SHERIFF DEPARTMENT,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                             (April 17, 2017)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Erika Jacobs, proceeding pro se and in forma pauperis, appeals the sua

sponte dismissal of her 42 U.S.C. § 1983 action after she failed to file an amended

complaint within the extended deadline. After review, we affirm.

                                 I. BACKGROUND

      In December 2015, Jacobs filed her pro se complaint against the Clayton

County Solicitor General’s Office, the Clayton County State Court Office, and the

Clayton County Sheriff’s Department, alleging retaliation, sexual harassment,

violation of her constitutional rights, and “Malice/Conspiracy.” Jacobs’s claims

arose out of her arrest for missing a court date in Clayton County State Court. In

short, Jacobs alleged that employees of the defendants: (1) engaged in various

conduct designed to cause her to miss her court date and be arrested; (2) then

denied her a phone call to bond out of jail; and (3) mistreated her while she was in

jail, all in retaliation for another federal lawsuit Jacobs had filed against the City of

Riverdale Police Department.

      On April 1, 2016, the district court conducted a frivolity review pursuant to

28 U.S.C. § 1915(e)(2)(B) and determined that Jacobs’s complaint did not comply

with the pleading requirements of Federal Rules of Civil Procedure 8 and 10. The

district court ordered Jacobs to file an amended complaint that complied with

Rules 8 and 10 on or before April 15, 2016. The district court cautioned Jacobs

that failure to comply with the order would result in dismissal of her action


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pursuant to Northern District of Georgia Local Rule 41.3(A)(2), which authorizes

the district court to involuntarily dismiss a civil case for want of prosecution if the

plaintiff, after notice, fails to comply with a court order. See N.D. Ga. L.R.

41.3A(2). The district court also advised Jacobs that it would not provide her with

any further opportunities to amend her deficient pleadings.

      The district court later granted Jacobs’s motion for an extension of time and

extended the deadline to amend her complaint to April 27, 2016. The district court

again warned Jacobs that failure to comply with the court’s order would result in

dismissal pursuant to Local Rule 41.3(A)(2).

      Jacobs, however, did not file an amended complaint until April 29, 2016,

two days after the extended deadline had expired. Jacobs wrote a note at the

bottom of the amended complaint stating that it was “sent on time April 27, 2016.”

      On August 22, 2016, the district court entered an order dismissing Jacobs’s

amended complaint pursuant to Local Rule 41.3(A)(2) for failure to comply with a

lawful court order. The district court explained:

      Plaintiff failed to comply with the Court’s April 1st Order and its
      April 18th Order, after twice being advised that failure to comply
      would result in dismissal of this action, and after being advised that no
      further extensions of time would be granted. Plaintiff claims she
      mailed her Amended Complaint by the April 27, 2016 deadline, but
      the Court specifically required her to file it by that date. Under the
      circumstances, dismissal under Local Rule 41.3(A)(2) is warranted.




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The district court noted that Jacobs was a “frequent filer of frivolous lawsuits” and

admonished Jacobs that it would “strictly construe any future deadlines.”

      Alternatively, the district court concluded that Jacobs’s amended complaint

must be dismissed under § 1915(e)(2)(B) as frivolous. The district court concluded

that Jacobs’s § 1983 claims clearly lacked merit because: (1) the Clayton County

State Court Office and the Clayton County Solicitor General’s Office were not

“persons” under § 1983; (2) a sheriff’s department is not a legal entity subject to

suit under § 1983; and (3) Jacobs’s amended complaint failed to allege both a

policy or custom of Clayton County and a causal link between a such a policy or

custom and her alleged constitutional deprivations; rather Jacob’s amended

complaint relied on the impermissible theory of respondeat superior liability.

                                 II. DISCUSSION

A.    Rule 41(b) Dismissals

      Under Federal Rule of Civil Procedure 41(b), a district court has the

authority to dismiss an action for failure to comply with local rules or a court

order. See Fed. R. Civ. P. 41(b); see also N.D. Ga. L.R. 41.3(A)(2); Betty K

Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005). A




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dismissal under Rule 41(b) is an adjudication on the merits and is thus a dismissal

with prejudice unless the district court states otherwise. Fed. R. Civ. P 41(b).1

       Dismissal with prejudice is a sanction of last resort and is proper only if the

district court finds: (1) “a clear record of delay or willful conduct” and (2) “that

lesser sanctions are inadequate to correct such conduct.” Zocaras v. Castro, 465

F.3d 479, 483-84 (11th Cir. 2006) (quoting Betty K Agencies, 432 F.3d at 1339);

Kilgo, 983 F.2d at 192. As to the first prong, mere delay will not suffice, rather, a

finding of the extreme circumstances necessary to support the sanction of dismissal

with prejudice must, at a minimum, be based on evidence of willful delay; simple

negligence does not warrant dismissal. Kilgo, 983 F.2d at 192-93. As to the

second prong, we will occasionally infer from the district court’s decision that it

implicitly found that lesser sanctions would not suffice, but we have “never

suggested that the district court need not make the finding.” Id. at 193. That said,

“dismissal [with prejudice] upon disregard of an order, especially where the

litigant has been forewarned, generally is not an abuse of discretion.” Moon v.

Newsome, 863 F.2d 835, 837 (11th Cir. 1989).

B.     Dismissal of Jacobs’s Action under Rule 41(b)

       Here, Jacobs filed her amended complaint on April 29, 2016, the date it was

received by the clerk’s office. There is no merit to Jacobs’s argument that her

       1
        We review dismissals under Rule 41(b) for an abuse of discretion. Betty K Agencies,
432 F.3d at 1337.
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amended complaint was timely because she placed it in the mail on April 27, 2016.

Under the Federal Rules of Civil Procedure, a pleading is “filed” when it is

delivered to a clerk or to a judge who agrees to accept it for filing, not when it is

delivered to the post office for mailing. See Fed. R. Civ. P. 5(d)(2); cf. Haney v.

Mizell Mem’l Hosp., 744 F.2d 1467, 1472 (11th Cir. 1984) (explaining that a

notice of appeal is “filed” for purposes of Federal Rules of Appellate Procedure 3

and 4 when it is actually received and that “simply depositing the notice in the mail

is not the same as filing it”). Although a “mailbox rule” akin to the one Jacobs

describes applies to pro se prisoners, such a rule has not been extended to other pro

se litigants, who are expected to comply with all procedural rules. See Houston v.

Lack, 487 U.S. 266, 274-75, 108 S. Ct. 2379, 2384-85 (1988) (leaving undisturbed

the general rule in civil cases that filing occurs when the clerk receives the

pleading, but carving out a “mailbox rule” for pro se prisoners); Albra v. Advan,

Inc., 490 F.3d 826, 829 (11th Cir. 2007). Thus, Jacobs’s amended complaint was

not timely filed under Rule 5(d)(2) and did not comply with the filing deadline in

the district court’s April 18, 2016 order.

      Furthermore, we cannot say the district court abused its discretion by

dismissing Jacob’s action with prejudice under Rule 41(b). The district court

extended the deadline once and warned Jacobs twice that if she failed to comply




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with the court-ordered deadline, her action would be dismissed. Despite being

forewarned, Jacobs did not file her amended complaint on April 27, 2016.

      In addition, there was a record of willful delay by Jacobs given that: (1) she

had already asked for, and received, one extension of time; (2) she was a “frequent

filer” who should have been familiar with the filing procedures; and (3) she was

repeatedly warned that her action would be dismissed if the filing deadline was not

met. Further, the district court’s multiple warnings and its admonition that Jacobs,

as a serial filer of frivolous actions, must strictly comply with any deadlines in the

future implied a finding that lesser sanctions would not suffice. See Kilgo, 983

F.2d at 193.

      Under these circumstances, the district court was within its discretion to

dismiss Jacobs’s amended complaint with prejudice under Rule 41(b) for failure to

comply with the district court’s order. Alternatively, we agree with the district

court that dismissal of Jacobs’s amended complaint with prejudice was also

appropriate under § 1915(e)(2)(B) because, for the reasons the district court

explained, the named defendants could not be held liable under § 1983 for the

constitutional violations alleged in her amended complaint. Because we affirm the

district court’s dismissal of Jacobs’s action with prejudice, we deny as moot

Jacobs’s request that a different district judge be assigned to her case.

      AFFIRMED.


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