FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

August 10, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-10757

Non-Argument Calendar

________________________

D. C. Docket No. 04-00004-CV-4

CHARLES NELSON, JR., 

Plaintiff-Appellant, 

versus 

MATT BARDEN, DEA Task Force Agent, 

KEVIN CHANEY, DEA Task Force Agent, 

ADAM ALLEN, DEA Task Force Agent, 

TFA REESE, DEA Task Force Agent, 

GERALD SISCO, Special Agent, 

DRUG ENFORCEMENT ADMINISTRATION, 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(August 10, 2005)

Before TJOFLAT, DUBINA and FAY, Circuit Judges.
 Although Nelson cited in his complaint to 42 U.S.C. § 1983, his pro se claims against

1

federal defendants should, instead, be construed as filed pursuant to Bivens, see Bivens, 403 U.S.

at 392-97, 91 S.Ct. at 2002-05 (making available a cause of action for monetary damages against

federal officials in their individual capacities for a violation of a federal constitutional right).

2

PER CURIAM:

Charles Nelson, II, a federal prisoner, appeals pro se the district court’s sua

sponte dismissal without prejudice of his pro se civil complaint for failure to effect

timely service of process, pursuant to Fed.R.Civ.P. 4(m). Nelson filed this

complaint pursuant to Bivens v. Six Unknown Agents of Federal Bureau of

Narcotics, 403 U.S. 388, 395-97, 91 S.Ct. 1999, 2004-05, 29 L.Ed.2d 619 (1971),1

against the Drug Enforcement Administration (“the DEA”), which is an agency of

the U.S. Justice Department, and five DEA agents in their individual capacities,

alleging that the defendants used excessive force in arresting him on multiple drug

offenses. Nelson argues on appeal that the court committed reversible error in

dismissing his complaint under Rule 4(m), without considering (1) whether “good

cause” excused his failure to complete service on the defendants, or (2) in the

absence of “good cause,” whether an extension of time for service, nevertheless,

was warranted. For the reasons set forth more fully below, we affirm. 

On January 30, 2004, after Nelson paid the filing fee in the instant action

and, therefore, elected not to proceed in forma pauperis (“IFP”), the magistrate

judge issued an order, instructing the plaintiff, amongst other things, either to
3

personally serve each of the defendants with the complaint, or to seek formal

waiver of personal service. 

Before the expiration of the 120-day period permitted for completing this

service, Nelson filed a motion for an extension of this time. In support, Nelson

explained that he had not been able to comply with the court’s instructions on

serving his complaint because the court clerk had not given him either filedstamped copies of the complaint and summons, or the forms necessary for him to

seek waiver of formal service. Nelson also asserted that, when his family had

inquired about the status of his complaint, the clerk’s office had informed them

that, as a prisoner, Nelson had to request service by the U.S. Marshall’s Office. 

On April 27, 2004, the magistrate granted Nelson’s motion and extended his

time to perfect service of process for an additional 120 days, that is, until August

27, 2004. In doing so, the magistrate noted that Nelson either had received no

response to his requests for the documents discussed above, or had been

misadvised by the clerk’s office that he had to seek service through the U.S.

Marshall’s Office. Moreover, the magistrate instructed the clerk’s office to

immediately supply Nelson with all the paperwork necessary for him to complete

service of process upon the defendants. 

 On August 30, 2004, after this second 120-day time period had expired, the
 Contrary to Nelson’s assertion that he properly served the U.S. Attorney’s Office and 2

the Attorney General of the United States, pursuant to Rule 4(i), the record contains no proof of

such service.

4

magistrate issued a report, recommending that the district court sua sponte dismiss

Nelson’s complaint without prejudice for failure to prosecute it. In making this

recommendation, the magistrate explained that (1) Nelson should have completed

service on the defendants by August 27, 2004; (2) the record did not contain proof

of such service; and (3) this failure reflected Nelson’s “lack of interest in

proceeding with the prosecution of this action.” 

Nelson objected to this report, arguing that, after he received the

magistrate’s April 27, 2004, extension order, he had completed the paperwork

necessary to obtain waiver of formal service, pursuant to Fed.R.Civ.P. 4(d). 

Nelson also stated that, because only one packet of forms relating to this waiver

had been returned, and only the U.S. Justice Department had refused waiver, he

had assumed that service on the remaining defendants had been accomplished, and

that those defendants would answer the complaint. In the alternative, Nelson

contended that (1) he had effected service on the U.S. Justice Department; and 2

(2) as a pro se prisoner, he had been unable to serve the individual defendants in a

manner other than through the mail. Nelson, therefore, requested that the court not

adopt the magistrate’s report and, instead, grant him a 60-day extension to
 After the court entered its order dismissing Nelson’s case, Nelson filed an untitled 3

pleading, requesting that the court aid him in serving his complaint on the defendants. The

magistrate denied this motion, explaining that, because the court had dismissed Nelson’s

complaint without prejudice, Nelson would have to pursue his claims and perfect service in a

new civil action. Similarly, the court denied Nelson’s subsequently filed motion requesting

service by the U.S. Marshall’s Service, again explaining that the complaint had been dismissed. 

 The defendants explain on appeal that, because they were not served in this action and, 4

therefore, did not enter an appearance, they did not receive a copy of the court’s dismissal order

before they filed this motion for partial dismissal. 

 The defendants asserted that they were not seeking dismissal for the other two 5

individual defendants because (1) Nelson, in good faith, had attempted to effect personal service

on them on September 8, 2004; and (2) he likely could remedy the defect in service. 

5

complete service and an order directing the U.S. Marshall’s Service to assist him. 

On September 20, 2004, after conducting a de novo review of the record,

including Nelson’s objections to the magistrate’s report, the court adopted this

report and sua sponte dismissed Nelson’s complaint without prejudice. On 3

October 1, 2004, the defendants filed a joint motion for partial dismissal, along

with a supporting memorandum. The defendants argued, in part, that Nelson had 4

failed to perfect service on at least three of the individual defendants. Moreover, 5

the defendants stated that, “[s]ince the United States instructs its employees to

refuse attempts at waiving service and requires personal service on them[,] it was

ultimately incumbent on the plaintiff to personally serve the individuals.” The

court ultimately denied as moot the defendants’ motion for partial dismissal

because the pleading was filed after the court sua sponte dismissed the case. 

On October 4, 2004, Nelson filed by placing in the prison mail system a
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“motion to alter or amend judgment,” seeking to amend the court’s sua sponte

dismissal order, pursuant to Fed.R.Civ.P. 59(e). Nelson argued that the magistrate

erroneously had recommended the dismissal of his complaint without giving him

prior notice or an opportunity to show “good cause” why service has not been

perfected. Nelson also contended that, in adopting this recommendation, the court

had erred in failing to grant his requests for (1) an extension, and (2) assistance

from the U.S. Marshall’s Service. In addition, Nelson contended that “good cause”

for his failure existed because (1) he was proceeding pro se; (2) the complaint

involved multiple defendants; and (3) the defendants, at least constructively, had

evaded service by failing to notify him before his complaint was dismissed that

they could not, based on a general policy, waive formal service.

The defendants responded that Nelson’s Rule 59(e) motion should be denied

as untimely because it was filed outside of the ten-day deadline for filing such a

motion. The defendants also summarily argued in a separate response that the Rule

59(e) motion should be denied because the magistrate had found that Nelson had

failed to perfect timely service, and because the court’s dismissal was without

prejudice. In reply, Nelson (1) argued that, applying the computation rules

contained in Fed.R.Civ.P. 6(a), he timely had filed his Rule 59(e) motion within

ten business days of the court’s entry of its order dismissing his complaint; and
7

(2) re-argued that the court had no authority to sua sponte dismiss his case because

he had demonstrated “good cause” for not timely perfecting service.

On December 8, 2004, the court denied Nelson’s Rule 59(e) motion. The

court explained that, to the extent the defendants had not waived formal service,

the law did not compel such waiver. The court also discussed that Nelson’s

request for assistance from the U.S. Marshall Service was untimely, and that,

“[h]aving undertaken to travel on his own dime and avoid IFP-scrutiny of his

claims,[] Nelson ha[d] remained—just like any other litigant—responsible for

litigating his case and getting the defendants [timely] served.” Finally, the court

explained that, to the extent Nelson believed that he successfully had served some 

of the defendants, he, then, should have sought a default judgment or, otherwise,

litigated his case. On February 6, 2005, Nelson filed an NOA, appealing both the

court’s dismissal order and its order denying his Rule 59(e) motion. 

As a preliminary matter, Nelson asserts that his appeal is timely because his

filing of his Rule 59(e) motion tolled the time he had for filing his NOA of the

court’s dismissal order, and that he timely filed his NOA within 60 days of the

court’s order denying his Rule 59(e) motion, pursuant to Fed.R.App.P. 4(a)(1)(B)

and 4(a)(4)(A)(iv). Citing to these same procedural rules, the defendants respond

that Nelson’s Rule 59(e) motion did not toll the time he had to file an NOA
 “A post-judgment motion may be treated as made pursuant to either Fed.R.Civ.P. 59 or 6

60—regardless of how the motion is styled by the movant—depending on the type of relief

sought.” See Mays v. U.S. Postal Service, 122 F.3d 43, 46 (11th Cir. 1997). We, however,

treats a motion that is filed within ten business days of the entry of judgment and that asks for

reconsideration of matters encompassed in the judgment—such as in the instant case—as a

motion under Rule 59(e). See Finch v. City of Vernon, 845 F.2d 256, 258-59 (11th Cir. 1988). 

8

because, to be timely, his Rule 59(e) motion had to be filed by October 1, 2004. 

Even if the defendants were not challenging jurisdiction, absent the filing of

a timely NOA, we lack jurisdiction over an appeal. See Wooden v. Board of

Regents of University System of Georgia., 247 F.3d 1262, 1272 (11th Cir. 2001). 

Thus, as a federal court of limited jurisdiction, we must determine sua sponte

whether it has jurisdiction. See id. at 1271.

For an NOA to be timely in a civil case where the United States is a party, it

must be filed “within 60 days after the judgment or order appealed from is

entered.” Fed.R.App.P. 4(a)(1)(B). Rule 4(a)(4) of the Federal Rules of Appellate

Procedure, however, provides that the time for filing an NOA is tolled by the

timely filing of a motion to alter or amend judgment under Fed.R.Civ.P. 59(e). 

Fed.R.App. 4(a)(4)(A)(iv); Bragg v. Bill Heard Chevrolet, Inc., 374 F.3d 1060,

1064 n.4 (11th Cir. 2004), cert. denied, 125 S.Ct. 963 (2005). A Rule 59(e) 6

motion must be filed within ten days of the district court’s entry of the judgment. 

Fed.R.Civ.P. 59(e); Rice v. Ford Motor Co., 88 F.3d 914, 918 (11th Cir. 1996). In

calculating this time period:
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[T]he day of the act, event, or default from which the designated

period of time begins to run shall not be included. The last day of the

period so computed shall be included, unless it is a Saturday, a

Sunday, or a legal holiday . . .. When the period of time prescribed or

allowed is less than 11 days, intermediate Saturdays, Sundays, and

legal holidays shall be excluded in the computation.

Fed.R.Civ.P. 6(a). 

Here, Nelson filed by placing in the prison mail his Rule 59(e) motion on

October 4, 2004. See Fed.R.App.P. 4(c)(1) (appeals by inmates confined in an

institution); Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 2385, 101

L.Ed.2d 245 (1988) (holding that an NOA filed by a pro se prisoner is deemed

filed on the date that the prisoner delivers it to prison authorities for mailing). 

Contrary to the defendants’ jurisdictional argument, excluding the day the

dismissal order was entered and the intermediate Saturdays and Sundays, this filing

was within ten business days of the district court’s September 20, 2004, dismissal

order. See Fed.R.Civ.P. 6(a). Nelson’s time for filing his NOA, therefore, was

tolled until the district court denied his Rule 59(e) motion on December 8, 2004. 

See Bragg, 374 F.3d at 1064 n.4. Thus, Nelson timely filed an NOA on February

6, 2005; we have jurisdiction to review his appeal of both the court’s dismissal his

complaint and its denial of his Rule 59(e) motion. See Fed.R.App.P. 4(a)(1)(B).

As discussed above, Nelson argues on appeal that the district court erred in

sua sponte dismissing his complaint without first considering whether “good
 To the extent Nelson asserts in his reply brief that he has attached documents relating 7

to a subsequently filed civil action, to show that the defendants are still attempting to evade

service, his brief does not contain any attachments. Regardless, although we have the inherent

discretionary authority to allow supplementation of the record on appeal, even to include

evidence not reviewed by the district court, a party may not append material to an appellate brief

without first filing a motion requesting supplementation. See Jones v. White, 992 F.2d 1548,

1566-67 (11th Cir. 1993).

10

cause” excused his failure to complete service on the defendants. In support of this

argument, Nelson asserts that, (1) during the first 120-day period, the court did not

supply him with the paperwork necessary to complete service; (2) the court and the

defendants affirmatively had misled him or attempted to evade service by (i) not

consenting to improper service, and (ii) not stating, until after the complaint had

been dismissed, that the U.S. Justice Department had a general policy prohibiting

its employees from waiving formal service; (3) Nelson had attempted to serve the

official government defendant; and (4) he was proceeding as a pro se prisoner. 

Nelson also contends that, even if “good cause” did not exist, the court should have

granted him another extension of time to complete service because, although he

has filed a subsequent civil action raising the same claims, it might be time barred.7

To the extent Nelson is challenging the court’s denial of his Rule 59(e)

motion, we review the denial of a Rule 59(e) motion only for abuse of discretion. 

Lambert v. Fulton County, Ga., 253 F.3d 588, 598 (11th Cir. 2001). Moreover,

“[m]otions for reconsideration should not be used to raise legal arguments which

could and should have been made before the judgment was issued.” Sanderlin v.
 Rule 12(b)(5) provides that “[e]very defense, in law or fact, to a claim for relief in any 8

pleading . . . shall be asserted in the responsive pleading thereto . . . except that the following

defenses may at the option of the pleader be made by motion: . . . (5) insufficiency of service of

process . . ..” See Fed.R.Civ.P. 12(b)(5).

 The former Rule 4(j) provided: 9

11

Seminole Tribe of Florida, 243 F.3d 1282, 1292 (11th Cir. 2001). Regardless,

Nelson failed to raise this challenge in his initial brief. Thus, we deem waived any

challenges to the district court’s denial of Nelson’s Rule 59(e) motion. See Access

Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004)

(holding that issues not argued in initial brief are deemed waived).

Although we have not articulated in a published opinion a standard of

review for sua sponte dismissals under Rule 4(m), we review a district court’s

grant of a motion to dismiss for insufficient service of process, pursuant to

Fed.R.Civ.P. 12(b)(5), “by applying a de novo standard to the law and a clear error

standard to any findings of fact.” Prewitt Enterprises, Inc. v. Organization of

Petroleum Exporting Countries, 353 F.3d 916, 920 (11th Cir. 2003), cert. denied,

125 S.Ct. 62 (2004). We also generally review de novo a court’s interpretation of 8

Rule 4 de novo. Id. On the other hand, we review for abuse of discretion a court’s

dismissal without prejudice of a plaintiff’s complaint for failure to timely serve a

summons and complaint under the predecessor to Rule 4(m), former

Fed.R.Civ.P. 4(j). Brown v. Nichols, 8 F.3d 770, 775 (11th Cir. 1993). Moreover, 9
If a service of the summons and complaint is not made upon a defendant within

120 days after the filing of the complaint and the party on whose behalf such

service was required cannot show good cause why such service was not made

within that period, the action shall be dismissed as to that defendant without

prejudice upon the court’s own initiative with notice to such party or upon

motion.

See Fed.R.Civ.P. 4(j) (1992).

12

we review for abuse of discretion a court’s decision to grant an extension of time

under Rule 4(m). Horenkamp v. Van Winkle And Co., Inc., 402 F.3d 1129, 1132-

33 (11th Cir. 2005). 

A plaintiff is responsible for serving the defendant with both a summons and

the complaint within the time permitted under Rule 4(m). Fed.R.Civ.P. 4(c)(1). 

To the extent Nelson named the DEA as a defendant, service only could be

effected by (1) either (a) delivering a copy of the summons and of the complaint to

the United States attorney for the district in which the action was brought, or to his

or her designee, or (b) sending a copy of the summons and of the complaint by

registered or certified mail addressed to the civil process clerk at the office of the

United States attorney; and (2) sending a copy of the summons and of the

complaint by registered or certified mail to the Attorney General of the United

States. See Fed.R.Civ.P. 4(i). On the other hand, service on the individual adult

defendants sued in their personal capacities could be effected (1) pursuant to the

law of the state in which the district court was located, or in which service was
13

effected; or (2) by personal delivery of a copy of the summons and of the

complaint. See Fed.R.Civ.P. 4(e). 

As an alternative to formal service on the individual defendants, Nelson

could notify the defendants by mail of the commencement of a civil action and

request that they waive formal service of a summons. See Fed.R.Civ.P. 4(d)(2). If

a defendant does not comply with a request for waiver, “the court shall impose the

costs subsequently incurred in effecting service on the defendant unless good cause

for the failure be shown.” Id. A defendant, however, is not required to waive

formal service. See generally id. Indeed, the notes to the 1993 amendments to

Fed.R.Civ.P. 4(d) clarify that, service, itself, may not be effectuated by mail

without the affirmative cooperation by the defendant. See Advisory Committee

Notes to the 1993 Amendments enacting Rule 4(d).

If a plaintiff fails to serve the defendant(s) properly with a summons and a

complaint within 120 days of the plaintiff’s filing of his complaint:

the court, upon motion or on its own initiative after notice to the

plaintiff, shall dismiss the action without prejudice . . . or direct that

service be effected within a specified time; provided that if the

plaintiff shows good cause for the failure, the court shall extend the

time for service for an appropriate period. 

Fed.R.Civ.P. 4(m). “Good cause” exists “only when some outside factor[,] such as

reliance on faulty advice, rather than inadvertence or negligence, prevented
14

service.” Prisco v. Frank, 929 F.2d 603, 604 (11th Cir. 1991) (discussing “good

cause” under former Rule 4(j)), superseded in part by rule as stated in Horenkamp,

402 F.3d at 1132 n.2. 

We recently have explained that, under the current Rule 4(m), even in the

absence of “good cause,” district courts have the discretion to extend the time for

service of process. See Horenkamp, 402 F.3d at 1132-33. In reaching this

determination, we explained that the Supreme Court, albeit as dicta, discussed in

Henderson v. United States, 517 U.S. 654, 116 S.Ct. 1638, 134 L.Ed.2d 880

(1996), that, under the current Rule 4(m), “[c]omplaints are not to be dismissed if

served within 120 days or within such additional time as the court may allow.” See

Horenkamp, 402 F.3d at 1132 (quoting Henderson, 517 U.S. at 663, 116 S.Ct. at

1644). Moreover, we relied on the Advisory Committee’s Notes on Rule 4, in

which the Committee noted that the 1993 amendment to the rule “authorizes the

court to relieve a plaintiff of the consequences of an application of this subsection

even if there is no good cause shown,” and identified as an example of when relief

may be justified as “if the applicable statute of limitations would bar the refiled

action, or if the defendant is evading service or conceals a defect in attempted

service.” See Horenkamp, 402 F.3d at 1132 (citing Fed.R.Civ.P. 4(m), Advisory

Committee Note, 1993 Amendments). 
15

In the instant case, Nelson failed to show either that he properly served the

defendants named in his Bivens complaint, pursuant to Rules 4(e) or 4(i), or that

the defendants he was suing in their personal capacities waived service, pursuant to

Rule 4(d), within the 120-day period contained in Rule 4(m). See Fed.R.Civ.P.

4(c) (placing responsibility of service on the plaintiff). The court also did not

dismiss the action until after it gave Nelson the opportunity to object to the

magistrate’s recommendation to dismiss, and after it reviewed Nelson’s objection. 

Moreover, although at least some of the defendants demonstrated that they were

aware of Nelson’s complaint by filing their partial motion to dismiss, a defendant’s

actual notice is not sufficient to cure defectively executed service. See Schnabel v.

Wells, 922 F.2d 726, 728 (11th Cir. 1991) (interpreting the 120-day period as it

appeared in former Rule 4(j)), superseded in part by rule as stated in Horenkamp,

402 F.3d at 1132 n.2.

To the extent Nelson is arguing that the district court erred in not explicitly

stating whether he had established “good cause” for the delay, in Brown, we

vacated and remanded a district court’s order dismissing an action under the former

Rule 4(j), when the plaintiff failed to serve the defendants until seven months after

she filed her complaint, and after the court had dismissed her claims, because the

district court had not determined whether the plaintiff’s failure was supported by
16

“good cause.” See Brown, 8 F.3d at 774-75. In the instant case, however, Nelson

failed to explain in his objections to the magistrate’s report recommending

dismissal why “good cause” excused his failure. 

Moreover, in the absence of evidence to the contrary, we presume that the

district court, in dismissing Nelson’s complaint under Rule 4(m), determined that

Nelson’s failure to serve the defendants by August 27, 2004, was not excused by

“good cause.” See Burrell v. Board of Trustees of Georgia Military College, 125

F.3d 1390, 1395 (11th Cir. 1997) (explaining that “[t]rial judges are presumed to

know the law and to apply it in making their decisions”). Indeed, in April 2004,

after concluding that Nelson’s failure to complete service within 120 days of his

filing his complaint on January 8, 2004, was attributable to misadvice from the

magistrate in initially instructing him on service on corporations, instead of on the

government, and to the failure of the clerk of the court to supply Nelson with filestamped copies of the complaint, the magistrate granted Nelson an additional 120

days to complete service. 

On the other hand, the defendants’ unwillingness to accept improper service,

or to waive service where applicable, were not “outside factor[s], such as reliance

on faulty advice,” that constituted “good cause.” See Prisco, 929 F.2d at 604. As

discussed above, if a defendant does not comply with a request for waiver, a
 To the extent Nelson also has argued that the court erred in dismissing his action 10

because he was proceeding without counsel, “[p]ro se pleadings are held to a less stringent

standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” See

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, both the

Supreme Court and this Court have concluded that a defendant’s pro se status in civil litigation

generally will not excuse mistakes he makes regarding procedural rules. See McNeil v. United

States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984, 124 L.Ed.2d 21 (1993) (explaining that the

Court “never [had] suggested that procedural rules in ordinary civil litigation shall be interpreted

so as to excuse mistakes by those who proceed without counsel,” because “experience teaches

that strict adherence to the procedural requirements specified by the legislature is the best

guarantee of evenhanded administration of the law”); see also Wayne v. Jarvis, 197 F.3d 1098,

1104 (11th Cir. 1999) (holding that liberal construction of the pleading requirements for pro se

litigants does not equate with liberal deadlines).

17

defendant is not required to waive formal service. See Fed.R.Civ.P. 4(d). 

Furthermore, although the district court had discretion to grant Nelson a second

extension of time to complete service, even in the absence of “good cause,” Nelson

failed to cite to evidence to support his argument that any future actions he filed

based on these same claims would be time barred, or that the defendants, in

refusing to accept improper service, were evading service. See Fed.R.Civ.P. 4(m);

Horenkamp, 402 F.3d at 1132. Thus, the district court did not abuse its discretion 10

in failing to sua sponte grant Nelson an extension of time to complete service.

Accordingly, we conclude that the district court did not commit reversible

error in sua sponte dismissing Nelson’s civil complaint for failure to effect timely

service of process, pursuant to Rule 4(m). We, therefore, affirm.

AFFIRMED. 
18