     Case: 13-60148      Document: 00512493154         Page: 1    Date Filed: 01/08/2014




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                    No. 13-60148                              January 8, 2014
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
CARL FOX, III,

                                                 Plaintiff – Appellant
v.

THE STATE OF MISSISSIPPI, Jim Hood, Attorney General; PEARL RIVER
VALLEY WATER SUPPLY DISTRICT, Ross Barnet Reservoir, An Agency of
the State of Mississippi; DAVID SESSUMS, Reservoir Police Lieutenant;
FRED COATS, Reservoir Police Deputy; PERRY WAGNER, Reservoir Police
Chief; BENNY FRENCH, also known as Bemmy French; JOHN SIGMAN,
Current General Manager, Pearl River Valley Water Supply District,

                                                 Defendants – Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:11-CV-377


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant, Carl Fox, III (“Fox”), sued Defendants-Appellants,
under the American with Disabilities Act (ADA), 42 U.S.C. § 1983, 42 U.S.C.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 13-60148
§ 1985, and state law. The district court dismissed Fox’s claims with prejudice.
We AFFIRM.
                         FACTUAL BACKGROUND
      Fox alleges that, on July 5, 2008, and July 9, 2009, he was assaulted,
battered, and wrongfully detained by officers of the Ross Barnet Reservoir
Patrol, the law enforcement agency of the Pearl River Valley Water Supply
District, due to his status “as a vulnerable adult.” Following the 2008 incident,
Fox was charged with disobeying law enforcement, resisting arrest, and
disturbing the peace; he was again charged with disturbing the peace after the
2009 incident. The 2008 and 2009 charges against Fox were dropped. In June
2011, Fox filed this suit against the State of Mississippi, the Pearl River Valley
Water Supply District (“the District”), David Sessums, Fred Coats, Perry
Waggener, Benny French, and John Sigman. Although Fox’s complaint is
unclear, it appears that his legal claims included assault and battery, excessive
force, violations of the Americans with Disabilities Act (“ADA”), civil rights
violations pursuant to § 1983, and conspiracy to interfere with civil rights
under § 1985. Defendants moved to dismiss Fox’s complaint. The district court
subsequently dismissed all claims with prejudice. Fox timely appealed.
                          STANDARD OF REVIEW
      We review de novo a district court’s dismissal under Rule 12(b)(6),
“accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiffs.” Stokes v. Gann, 498 F.3d 483 (5th Cir.
2007). To avoid dismissal under Rule 12(b)(6), a plaintiff must plead “factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (citing Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007)). We
review the district court’s dismissal of a lawsuit for failure to prosecute
pursuant to Rule 41(b) for abuse of discretion. Link v. Wabash Railroad
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Company, 370 U.S. 626, 633 (1962). Finally, we review the district court’s
determination regarding insufficient service of process under Rule 12(b)(5) for
abuse of discretion. Sys. Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d
1011, 1013 (5th Cir. 1990).
                                  DISCUSSION
        Fox makes four arguments challenging the district court’s dismissal of
his claims. First, he argues that the district court erred in its finding that he
failed to plead the elements of an ADA claim. Second, he argues that the
district court erred in holding that Eleventh Amendment immunity barred his
§ 1983, § 1985, and state law claims against the State of Mississippi, the
District, and Chief Waggener, Lieutenant Sessums, Deputy Coats, Mr. French,
and Mr. Sigman in their official capacities. Third, Fox asserts that the district
court abused its discretion in finding that Waggener and Coats were
improperly served with process as required under Federal Rule of Civil
Procedure 4(e) and Mississippi Rule of Civil Procedure 4(d)(1), and requiring
additional service to avoid dismissal under Federal Rule of Civil Procedure
12(b)(5). Finally, Fox maintains that the district court erred in dismissing his
§ 1983 and § 1985 claims against Sessums, Sigman, and French in their
individual capacities for failure to prosecute and comply with the court’s
orders. All four arguments fail.
   A.      Americans with Disabilities Act (ADA) Claim
        In order to establish a violation of Title II of the ADA, a plaintiff must
allege that (1) he is a qualified individual with a disability; (2) he was either
excluded from participation in or denied the benefits of some public entity’s
services, programs, or activities; and (3) such exclusion, denial of benefits, or
discrimination was by reason of his disabilities. See 42 U.S.C.A. § 12132. In
an abundance of caution, the district court presumed the first two elements,
but correctly noted the absence of any nexus alleged as to the third. Fox’s bare
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                                  No. 13-60148
assertion of an ADA violation is insufficient. Fox fails to allege any facts that
plausibly suggest that any exclusion from benefits, denial of services, or
discrimination he may have suffered was on account of a qualifying disability.
As Fox failed to plead the elements of an ADA claim, the district court acted
properly in dismissing his ADA claim as to all defendants.
   B.     Eleventh Amendment Immunity
        “The Eleventh Amendment bars suits by private citizens against a state
in federal court. The bar applies not only to the state itself, but also protects
state actors in their official capacities.” K.P. v. LeBlanc, 627 F.3d 115, 124 (5th
Cir. 2010) (citations omitted). Fox does not dispute that the District is an
agency of the State of Mississippi. As the State of Mississippi has not waived
its immunity, the district court properly dismissed Fox’s claims against
Mississippi and the District and against Waggener, Sessums, Coats, French,
and Sigman in their official capacities.
   C.     Improper Service of Process
        After considering the ADA claims and Eleventh Amendment defense, the
only claims still at issue are Fox’s § 1983 and § 1985 claims against five District
employees (Sessums, Waggener, Coats, Sigman, and French) in their
individual capacities. The district court found that Fox failed to properly serve
Waggener and Coats as the process server served their copies of the summons
and complaint upon Sessums. Neither Federal Rule of Civil Procedure 4(e) nor
Mississippi Rule of Civil Procedure allow service of a summons and complaint
to a co-defendant. After Defendants challenged the service, the district court
granted Fox an extension of time to properly serve the Defendants within
thirty-three days and ordered him to file a Rule 7 reply within fourteen days
of service. Despite additional extensions, Fox failed to serve Waggener and
Coats or file a Rule 7 reply. The district court thus properly dismissed Fox’s
claims against Waggener and Coats pursuant to Rule 41(b). See Larson v.
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Scott, 157 F.3d 1030, 1031 (5th Cir. 2008) (“A district court sua sponte may
dismiss an action for failure to prosecute or to comply with a court order.”).
   D.     Failure to Prosecute
        Sessums, Sigman, and French all asserted qualified immunity against
the § 1983 and § 1985 claims brought against them in their individual
capacities. “Qualified immunity shields government officials from civil
damages liability insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 578 (5th Cir. 2009)
(quotation marks and citations omitted). To assist the court and the parties
in evaluating Defendants’ assertions of qualified immunity, the district court
ordered Fox to file within thirty-three days a brief stating what Sessums,
Sigman, and French did to him, and why these facts show a constitutional
violation under § 1983 and a conspiracy to violate the constitution under
§ 1985. The court twice extended the deadline, but Fox never complied with
the order. Fox’s failure to identify specific acts or omissions of Sigman,
French, or Sessums which violated his constitutional rights and to comply
with the court’s orders constitutes a failure to prosecute. As a federal trial
court possesses authority to dismiss sua sponte for lack of prosecution, Link,
370 U.S. at 629-30, the district court properly dismissed these claims under
Rule 41(b). Larson, 157 F.3d at 1031.
                                CONCLUSION
        Accordingly, we AFFIRM the district court’s order of dismissal.




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