IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60148

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

FILED

January 8, 2014

Lyle W. Cayce

Clerk

 

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§ 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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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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