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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

JULIO CESAR OVALLE,

 Plaintiff,

vs.

UNITED STATES OF AMERICA, DOE 

C.B.P. AGENTS 1-10, DOE I.C.E. 

AGENTS 1-10,

 Defendants.

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SA-20-CV-00676-JKP

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

To the Honorable United States District Judge Jason K. Pulliam:

This Report and Recommendation concerns the above-styled cause of action. All 

dispositive pretrial matters in this case were referred to the undersigned for disposition pursuant 

to Western District of Texas Local Rule CV-72 and Appendix C [#3]. The undersigned has

authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set 

forth below, it is recommended that this case be dismissed for want of prosecution. 

I. Background and Analysis

Plaintiff Julio Cesar Ovalle filed this action on June 4, 2020, against the United States of 

America (United States Custom & Border Protection, United States Immigration and Customs 

Enforcement (“ICE”), and the Department of Homeland Security), as well as a number of 

unnamed individual agents. (Compl. [#1].) Ovalle alleges that he is a 25-year-old United States 

citizen, who was born in Los Angeles, California, speaks very little English, is unable to read or 

write English, and has a history of mental health issues. (Id. at ¶ 8.) According to Ovalle’s 

Complaint, he was unlawfully arrested and detained at an ICE detention facility in 2018 and 

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ultimately deported to Mexico, without being given the opportunity to see a judge and without 

any investigation into his claims of citizenship by birth. (Id. at ¶¶ 8–14.) Ovalle further alleges 

that after he was forced to walk across the border to Nuevo Laredo with other deportees, he was 

finally able to make a call to inform his father of his deportation. (Id. at ¶ 15.) While waiting for 

his father to arrive with his passport and birth certificate outside the Mexican Immigration 

Center, Ovalle claims that a truck approached with members form a Mexican cartel, who 

abducted him and took him to a house, where he was held for ransom. (Id.) 

Ovalle’s family was ultimately successful in securing his release from the cartel, and, due 

to the intervention of the Federal Bureau of Investigation, Ovalle was returned to the United 

States within one week of his deportation. (Id.) However, he claims he suffered physical and 

mental abuse at the hands of the cartel and that the ordeal caused him severe emotional distress, 

required his hospitalization for an attempted suicide, and that he continues to experience 

symptoms from the trauma caused by the United States Government’s unlawful actions. (Id. at 

¶¶ 16–17.) 

Through this lawsuit, Ovalle alleges constitutional claims pursuant to Bivens v. Six 

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and tort claims 

pursuant to the Federal Tort Claims Act. Ovalle alleges that the United States employed racial 

profiling and discriminatory and predatory policies and practices in his arrest and deportation

that caused his injuries. 

At the time his suit was filed, Plaintiff requested issuance of a single summons, and 

summons was issued that same day, addressed to William P. Barr, Attorney General of the 

United States, at 950 Pennsylvania Avenue, NW, Washington, D.C. 20530. Over three months 

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passed, no summons was returned; no waiver of service was filed; and no answer or other 

responsive pleading was filed in this case. 

To effectuate service on the United States, a party must both deliver a copy of the 

summons and the complaint to the United States Attorney for the district where the action is 

brought and send a copy of the complaint and summons by registered or certified mail to the 

Attorney General of the United States in Washington, D.C. See Fed. R. Civ. P. 4(i)(1). The 

summons requested by and issued to Ovalle was addressed to the Attorney General in 

Washington, D.C. There is no record of any summons being requested or issued as to the U.S. 

Attorney for the Western District of Texas. 

Under Rule 4(m) of the Federal Rules of Civil Procedure, if service of summons and 

complaint is not made upon a defendant within 90 days after a complaint is filed, after giving 

notice to plaintiff, the court must dismiss the action without prejudice or direct that service be 

effected within a specified time. Fed. R. Civ. P. 4(m). If the plaintiff shows good cause for the 

failure, the court shall extend the time for service for an appropriate period. Id. Furthermore, a 

district court may dismiss an action for failure to prosecute or to comply with any order of the 

court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (per curiam); Fed. R. Civ.

P. 41(b).

Due to Ovalle’s failure to serve the United States in conformity with Rules 4(i) and 4(m), 

the Court issued a show cause order on September 17, 2020 [#4]. The Order directed Ovalle to 

show cause why this case should not be dismissed for want of prosecution based on a failure to 

properly serve this lawsuit. The Order explained that, based on a filing date of June 4, 2020,

Ovalle had until September 2, 2020 to serve his Complaint and summons on the United States

but had failed to do so. The Court also explained that Ovalle could request an extension of time 

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to serve process upon a showing of good cause. The Order gave Ovalle until October 1, 2020, to 

show cause for his failure to prosecute this case and to request any such extension. 

The day after the Court entered its Order, Ovalle filed a Notice of Filing of Proof of 

Service [#5], which contained an Affidavit of Service, confirming that the Attorney General of 

the United States was served with summons on June 16, 2020. The Notice did not reference any 

attempt to serve the United States Attorney for the Western District of Texas. Nor did it request 

an extension of time to complete service. No additional summonses have been requested or 

issued. 

Now, over four months have elapsed since the filing of this lawsuit, and the deadline to 

show cause for the failure to serve process or request an extension of time to do so has passed. 

The United States has still not been properly served pursuant to Rule 4(i) or within the time 

constraints imposed by Rule 4(m). The Court has warned Ovalle that a failure to serve the 

United States could result in the dismissal of his lawsuit for want of prosecution pursuant to Rule 

41(b). The Court will therefore recommend that Ovalle’s case be dismissed for want of 

prosecution. 

II. Conclusion and Recommendation

Having considered the record in this case and the governing rules regarding service on 

the United States Government, the undersigned recommends that this case be DISMISSED 

FOR WANT OF PROSECUTION.

III. 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 to those not registered by certified 

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mail, return receipt requested. 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). The party shall file 

the objections with the Clerk of 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, conclusive 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); 

Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file 

timely 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 un-objected-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).

SIGNED this 9th day of October, 2020.

ELIZABETH S. ("BETSY") CHESTNEY

UNITED STATES MAGISTRATE JUDGE

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