Opinion
5-23-CV-00663-FB-RBF
02-20-2024
RICKEY BUCHANAN, SR, Plaintiff, v. UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, DEPARTMENT OF THE AIR FORCE, SAN ANTONIO JUSTICE DEPARTMENT, FEDERAL OFFICERS/FEDERAL COURT SYSTEM; AND U.S. DEPARTMENT OF VETERANS AFFAIRS, Defendants.
To the Honorable United States District Judge Fred Biery:
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation concerns the status of this case and Plaintiff's failure to properly serve Defendants despite repeated warnings to do so. All pretrial matters have been referred for resolution pursuant to Rules CV-72 and 1 of Appendix C to the Local Rules for the United States District Court for the Western District of Texas. See Dkt. No. 4. Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B).
For the reasons set forth below, the case should be DISMISSED with prejudice.
Factual and Procedural Background
This is a case of spurned second chances. Pro Se Plaintiff Rickey Buchanan, Sr. filed his case on May 24, 2023-nearly nine months ago. Dkt. No. 1. Under the Federal Rules of Civil Procedure, a plaintiff must serve the defendant within 90 days of filing the complaint. Fed.R.Civ.P. 4(m). For Plaintiff Buchanan, that period expired August 24, 2023. Further, Defendant has repeatedly alerted Plaintiff to his failure to serve, starting with a notice filed September 20, 2023. See Dkt. Nos. 12, 19 & 23. Plaintiff has yet to properly serve Defendants. See Dkt. Nos. 12, 13, 17, 19, 20 & 23.
However, because of Plaintiff's pro se status, the Court granted two extensions to execute proper service. See Dkt. Nos. 17 & 22. The latest order gave Plaintiff until December 8, 2023, to properly serve defendants, or risk dismissal of his case:
IT IS ORDERED that Plaintiff's Motion for an Extension of Time to File is GRANTED IN PART. The deadline to properly serve Defendants in compliance with Federal Rule of Civil Procedure 4 is now on or before December 8, 2023 .
Failure to timely and properly comply with this order may result in dismissal of the case. Failure to timely and properly serve Defendants likewise may result in dismissal of the case.
No further extensions of this deadline will be granted absent a showing of good cause.Dkt. No. 22. Plaintiff still did not serve Defendants or otherwise respond to the Order. Instead, Plaintiff filed an Objection to Defective Summons on February 7, 2024, in response to Defendants' latest notice of defective service filed February 1, 2024, arguing that Plaintiff properly served all Defendants in accordance with Federal Rules of Civil Procedure 4 and 5. Dkt. Nos. 23 (notice) & 24 (objection).
Analysis
Federal Rule of Civil Procedure 41(b) “authorizes the district court to dismiss an action sua sponte for failure to prosecute or comply with a court order” to “achieve the orderly and expeditious disposition of cases.” Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835, 844 (5th Cir. 2018). This case has been pending for nearly nine months, and Plaintiff has not executed service upon Defendants. See Dkt. Nos. 1, 22. Pro se Plaintiff Buchanan has further failed to properly prosecute this case or to comply with the Court's November 7, 2023, Order regarding service. Dkt. No. 22.
“The scope of the court's discretion is narrower when a Rule 41(b) dismissal is with prejudice or when a statute of limitations would bar re-prosecution of an action dismissed under Rule 41(b) without prejudice.” Brown v. King, 250 Fed. App'x 28, 29 (5th Cir. 2007). The Fifth Circuit “will affirm dismissals with prejudice for failure to prosecute only when (1) there is a clear record of delay or contumacious conduct by the plaintiff, and (2) the district court has expressly determined that lesser sanctions would not prompt diligent prosecution or the record shows that the district court employed lesser sanctions that proved to be futile.” Id. at 29 (quoting Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992)).
Here, Plaintiff Buchanan has produced a clear record of delay. Plaintiff should have executed service nearly six months ago, on August 24, 2023. Yet, despite receiving three notices from Defendants regarding defective service with instructions for how to properly serve them, Dkt. Nos. 12, 13, 19 & 23, and two Court orders granting Plaintiff extensions to properly serve Defendants, Dkt. Nos. 17 & 22, Plaintiff has yet to execute proper service.
The record also shows that lesser sanctions would not prompt diligent prosecution. Rather than responding to the Court's latest order regarding service, Plaintiff Buchanan filed an objection to the Defendants' latest notice of defective service, arguing in error that service was properly executed. Dkt. No. 24. What is more, the Court explicitly warned Plaintiff that failure to properly serve Defendants would result in dismissal of his case. Because Plaintiff has repeatedly failed to properly serve Defendants, and instead erroneously argues that service was proper when he has been shown it was not, and because of this Court's prior warnings, lesser sanctions would not prompt diligent prosecution.
Conclusion and Recommendation
For the reasons discussed above, it is recommended that this case be DISMISSED with prejudice.
Having considered and acted upon all matters for which the above-entitled and numbered case was referred, it is ORDERED that the above-entitled and numbered case is RETURNED to the District Court for all purposes.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Objections, responses, and replies must comply with the same page limits as other filings, unless otherwise excused by the district court's standing orders. See Rule CV-7. The objecting party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.