[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12527

Non-Argument Calendar

____________________

TONY B. MATHIS, 

Plaintiff-Appellant,

versus

CSX TRANSPORTATION, 

MARK WILLIAMS, 

Manager Program Construction, 

JAMES HINANT, 

Director of Program Construction, 

MATTHEW SLATER, 

SPG Supervisor, 

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2 Opinion of the Court 21-12527

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 3:20-cv-00528-MMH-JRK

____________________

Before JILL PRYOR, BRANCH, AND BRASHER, Circuit Judges.

PER CURIAM:

Tony B. Mathis, proceeding pro se, appeals from the district 

court’s dismissal without prejudice of his complaint for failure to 

prosecute.1 The Appellees have moved for summary affirmance of 

the district court’s order. After review, we grant the Appellees’ 

motion.

I. Factual Background 

In May 2020, Mathis filed the present pro se suit against his 

former employer, CSX Transportation (“CSX”), and three 

company employees in May 2020, claiming discrimination and 

1 As the district court noted, its dismissal without prejudice was 

effectively a dismissal with prejudice because Mathis was required to file suit 

within 90 days of receiving a Notice of Right to Sue from the Equal 

Employment Opportunity Commission. See 42 U.S.C. § 2000e-5(f)(1). Mathis 

received his notice in 2020, and, as the district court found, “his 90 day period 

has undeniably expired.” 

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21-12527 Opinion of the Court 3

retaliation under Title VII of the Civil Rights Act of 1964, along 

with a motion to proceed in forma pauperis (“IFP”). In June 2020, 

a magistrate judge ordered Mathis “not [to] serve Defendants with 

any pleading or other process related to this action” until the court 

decided whether to permit him to proceed IFP. However, prior to 

the court ruling on the IFP motion, Mathis paid the filing fee, 

rendering the motion moot. However, Mathis did not serve the 

defendants.

On September 8, 2020, the district court sua sponte ordered 

Mathis to show cause by September 25 why, in light of his failure 

to serve the defendants within 90 days of filing his complaint, his 

suit should not be dismissed for failure to prosecute his case under 

Local Rule 3.10(a). Mathis responded by asserting that he suffered 

from anxiety and depression, that since “the work related incidents 

I have had trouble with memory in some areas and understanding 

or comprehension,” but that he was “engaged and ready to 

proceed” despite his “misunderstanding and missing deadlines.” 

Yet Mathis still did not serve the defendants, and they 

moved to dismiss his complaint for lack of service in March 2021. 

Mathis did not respond, and in April 2021, the district court issued 

a second show-cause order, in which it noted that Mathis had failed 

to serve his complaint on the defendants or respond to their motion 

to dismiss. The district court ordered Mathis to file a written 

response explaining his failure to serve the defendants or respond 

to their motion to dismiss by May 14, cautioning him that a failure 

to comply would result in dismissal of his case. 

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4 Opinion of the Court 21-12527

On May 10, Mathis filed a “response to motion,” explaining 

that he was going through difficult times, thought that the district 

court would serve his complaint for him, and was “engaged and 

more than ready to present [his] case.”

On June 29, 2021, the district court granted the defendants’

motion and dismissed Mathis’s suit. The court found that, despite 

the two show cause orders explaining the need for Mathis to effect 

service, Mathis had never expressed any intention of serving his 

complaint on the defendants, and failed to show good cause for not 

doing so. Similarly, he failed to request an extension of time to 

effect service at any point in the prior year between the filing of his 

complaint and the dismissal. And he failed to respond to the 

motion to dismiss or explain his failure to do so. Based on these 

circumstances, the district court concluded that Mathis had failed 

to “otherwise prosecute” his case and that dismissal was warranted. 

Mathis appealed. 

On appeal, Mathis filed a pro se brief—spanning nine

sentences without any citations to the record or caselaw—

purporting to challenge the district court’s dismissal of his 

complaint. CSX moved for summary affirmance of the district 

court’s order and a stay of the briefing schedule, arguing that the 

district court did not abuse its discretion in dismissing Mathis’s case 

for failure to prosecute because Mathis failed to offer good cause 

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21-12527 Opinion of the Court 5

for his failure to serve the complaint on the defendants or comply 

with the district court’s show-cause orders.2 

II. Discussion 

Summary disposition of an appeal is appropriate where “the 

position of one of the parties is clearly right as a matter of law so 

that there can be no substantial question as to the outcome of the 

case, or where, as is more frequently the case, the appeal is 

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 

(5th Cir. 1969).3 We liberally construe pro se pleadings and hold 

them to a less stringent standard than those drafted by attorneys. 

Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014). Yet

a court may not “serve as de facto counsel for a party [or] rewrite 

an otherwise deficient pleading in order to sustain an action.” Id.

at 1168–69 (quotation omitted). Further, all litigants in federal 

2 CSX also argues that Mathis has abandoned any challenge to the 

dismissal of the case by failing to respond to the basis of dismissal: that he failed 

to prosecute his case. We disagree, however, and conclude that Mathis has 

not abandoned his challenge to the dismissal of his complaint. Liberally 

construed, Mathis’s brief argues that good cause existed for his failure to 

timely serve the defendants or respond to the defendants’ motion to dismiss. 

Mathis asserts that he “wasn’t notified by the court whether to proceed with 

prosecuting [his case].” He also challenges adequately the second basis for the 

dismissal—that he did not show good cause for failing to timely respond to 

the motion to dismiss—by stating in his brief, “I didn’t have knowledge of how 

to respond to orders and motions.” (Emphasis added). 

3 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) 

(en banc) (holding that all decisions from the Fifth Circuit Court of Appeals 

issued before October 1, 1981, are binding precedent in the Eleventh Circuit). 

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court—pro se or counseled—are required to comply with 

applicable procedural rules. See Albra v. Advan, Inc., 490 F.3d 826, 

829 (11th Cir. 2007) (per curiam). 

We will generally review a dismissal for failure to prosecute 

for abuse of discretion. Gratton v. Great Am. Commc’ns, 178 F.3d 

1373, 1374 (11th Cir. 1999); see also M.D. Fla. Civ. R. 3.10 

(providing that a plaintiff’s failure to prosecute “can result in 

dismissal if the plaintiff in response to an order to show cause fails 

to demonstrate due diligence and just cause for delay”). 

Under the Federal Rules of Civil Procedure, a plaintiff must 

serve all defendants with a copy of the complaint within 90 days of 

filing it. Fed. R. Civ. P. 4(m). The district court “must extend the 

time for service for an appropriate period” if the plaintiff shows 

good cause for failure to perfect service within the 90-day period. 

Id. A plaintiff can show good cause by indicating that “some 

outside factor, such as reliance on faulty advice, rather than 

inadvertence or negligence, prevented service.” See LeponeDempsey v. Carroll Cnty. Comm’rs, 476 F.3d 1277, 1281 (11th Cir. 

2007) (alteration adopted). 

If the district court determines that a plaintiff has failed to 

show good cause for failure to timely effect service, “the district 

court must still consider whether any other circumstances warrant 

an extension of time based on the facts of the case.” Id. at 1282. 

“Only after considering whether any such factors exist may the 

district court exercise its discretion and either dismiss the case 

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without prejudice or direct that service be effected within a 

specified time.” Id. 

“The court’s power to dismiss is an inherent aspect of its 

authority to enforce its orders and insure prompt disposition of 

lawsuits.” Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). 

But dismissal of a complaint with prejudice “is considered a 

sanction of last resort, applicable only in extreme circumstances.” 

Goforth, 766 F.2d at 1535.

The local rules for the Middle District of Florida provide that 

a party must respond to a motion to dismiss within 21 days after 

service of the motion. M.D. Fla. Civ. R. 3.01(c). Likewise, Local 

Rule 3.10(a) provides that “[w]henever it appears that any case is 

not being diligently prosecuted the Court may, on motion of any 

party or on its own motion, enter an order to show cause why the 

case should not be dismissed, and if no satisfactory cause is shown, 

the case may be dismissed by the Court for want of prosecution.” 

M.D. Fla. Civ. R. 3.10; see also Fed. R. Civ. P. 41(b).

We grant CSX’s motion for summary affirmance because no 

substantial question exists as to whether the district court abused 

its discretion in dismissing Mathis’s suit. It did not. To be sure, the 

magistrate judge’s June 2020 order instructing Mathis not to serve 

the defendants arguably relieved him of his duty to perfect service

temporarily until the court made a determination as to whether he 

could proceed IFP. But then Mathis paid the filing fee, the district 

court denied the IFP motion as moot, and Mathis still did not 

perfect service. And the district court issued a show-cause order in 

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September 2020 asking Mathis why the case should not be 

dismissed for failure to prosecute. Mathis responded that he was 

“engaged and ready to proceed” but he still did not serve the 

defendants. Six months later, in March 2021, the defendants 

moved to dismiss the case for lack of service, and although Mathis

again reiterated that he was “engaged” and “more than ready” to 

proceed and acknowledged that he had mistakenly believed the 

district court would perfect service, he again failed to serve the 

defendants before the district court’s June 29, 2021, order 

dismissing the case. And despite the show-cause orders and motion 

to dismiss—all of which highlighted Mathis’s lack of compliance 

with Rule 4(m) and Local Rule 3.10(a)—Mathis never once 

requested an extension of time to serve the defendants. 

In addition, Mathis’s excuses for his failure to comply with 

the service rules—a general misunderstanding of the litigation 

process and mental health issues—were not “outside factor[s]” that 

“prevented service.” See Lepone-Dempsey, 476 F.3d at 1281; see 

also Albra, 490 F.3d at 829 (clarifying that pro se litigants must 

abide by procedural rules). The district court therefore did not 

abuse its discretion when it dismissed Mathis’s suit. 

Accordingly, no substantial question exists as to the 

outcome of the case, and summary affirmance is proper. See 

Groendyke Transp., 406 F.2d at 1162. We GRANT CSX’s motion 

for summary affirmance and DENY as moot its motion to stay the 

briefing schedule. 

 

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