IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

 

MARIA ELENA GUERRERO, §

 §

Plaintiff, §

 §

v. § Civil Action No. 4:22-cv-00144-O-BP

 § 

COMMISSIONER OF SOCIAL §

SECURITY, § 

 §

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court is the record in the above-captioned case. Because Plaintiff has not 

effected service of process, the undersigned RECOMMENDS that United States District Judge 

Reed O’Connor DISMISS this case without prejudice.

I. BACKGROUND

Maria Guerrero’s daughter suffers from a medical condition similar to sickle cell anemia. 

ECF No. 1 at 1-2. On her daughter’s behalf, Guerrero applied for supplemental security income 

benefits under the Social Security Act. See id. at 1; see generally 42 U.S.C. §§ 1381-1383f. In 

2020, the Commissioner of Social Security denied her application. See ECF No. 1 at 3. It appears 

Guerrero did not initially challenge the denial, but she later requested from the Social Security 

Appeals Council more time to initiate a civil action seeking judicial review. See id. The Council 

granted her request on February 3, 2022. Id.

So, on February 25, 2022, Guerrero filed this action seeking such review. Id. at 1. She filed 

concurrently with her Complaint a motion for the appointment of counsel (ECF No. 2) and an 

application to proceed in forma pauperis. ECF No. 3. The Court denied the motion because 

Guerrero did not show exceptional circumstances warranting Court-appointed counsel. ECF No. 7. 

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The Court issued two Orders and Notices of Deficiency relating to the application (see ECF Nos. 8-

9), which ultimately became moot because Guerrero paid the filing fee for her case to proceed. See

ECF Nos. 10-12. And so, Guerrero proceeded pro se.

As of April 4, Defendant had not received service of process, so the Court reminded 

Guerrero of her responsibility under the Federal Rules of Civil Procedure to ensure Defendant 

receives service of a summons and a copy of her Complaint within ninety days of the Complaint’s 

filing date. ECF No. 12. But as of May 31, more than ninety days had lapsed, and the record 

reflected no service on Defendant. See ECF No. 13. Even so, the Court extended the pro se

Guerrero’s service deadline until June 21, warning her that failure to effect service by then may 

result in her case’s dismissal under Federal Rules of Civil Procedure 4(m) or 41(b) for want of 

service or failure to comply with the Court’s Order, respectively. Id. As of today, June 24, the 

record still reflects Defendant has not been served.

II. LEGAL STANDARDS AND ANALYSIS

Service of process references the requirement that, in any civil action, a “summons must 

be served with a copy of the complaint.” Fed. R. Civ. P. 4(c)(1). The “plaintiff is responsible for 

having the summons and complaint served within the time allowed by Rule 4(m)” (id.), which

provides:

If a defendant is not served within 90 days after the complaint is filed, the court—

on motion or on its own after notice to the plaintiff—must dismiss the action 

without prejudice against that defendant or order that service be made within a 

specified time. But if the plaintiff shows good cause for the failure, the court must 

extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m). “A litigant’s pro se status neither excuses h[er] failure to effect service nor 

excuses h[er] for lack of knowledge of the Rules of Civil Procedure.” Thrasher v. City of Amarillo, 

709 F.3d 509, 512 (5th Cir. 2013) (discussing Rule 4(m)).

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The pro se Guerrero filed her Complaint on February 25, 2022. ECF No. 1. Having paid 

the filing fee (ECF Nos. 10-11), she was responsible for effecting service of process by May 26, 

ninety days later. See Fed. R. Civ. P. 4(m); see also Fed. R. Civ. P. 6(a) (Computing Time). Even 

though the Court reminded Guerrero of her responsibility (ECF No. 12), Defendant did not receive 

service by May 26 or after. 

Noting Guerrero’s pro se status, the Court exercised its authority under Rule 4(m) in 

ordering service be made by a specified time, namely June 21. ECF No. 13; see also Fed. R. Civ. 

P. 4(m). The Court warned Guerrero that her case could be dismissed if service remained 

unaffected after June 21. ECF No. 13.

As of today, June 24, service remains unaffected. Guerrero has not requested a time 

extension for effecting service, and she has not otherwise shown good cause for the want ofservice. 

See Fed. R. Civ. P. 4(m). Aside from her paying the filing fee, there are no signs of activity from 

Guerrero since February 25, when she started this action. See ECF Nos. 1-13; see also Fed. R. Civ. 

P. 41(b) (stating the Court’s additional authority to dismiss cases for failure to prosecute or follow 

Court orders).

With roughly four months having passed since Guerrero filed her Complaint, the Court 

must either dismiss this case without prejudice or set a new specified time for service. Fed. R. Civ. 

P. 4(m). Because the Court already extended Guerrero’s service deadline once (ECF No. 13), the 

Court now should dismiss this case, with one exception provided below. 

III. CONCLUSION

Accordingly, the undersigned RECOMMENDS that Judge O’Connor DISMISS this case 

without prejudice under Federal Rule of Civil Procedure 4(m). However, if Guerrero effects 

service and files proof of that service within the fourteen-day period permitted for objections (see

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below) or by such other deadline as Judge O’Connor may set, then the undersigned will withdraw 

this recommendation. Guerrero may reference the Court’s April 4 Order (ECF No. 12) for an 

overview of Rule 4’s service requirements.

A copy of these findings, conclusions, and recommendation shall be served on all parties 

in the manner provided by law. Any party who objects to any part of these findings, conclusions, 

and recommendation must file specific written objections within fourteen days after being served 

with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). To be specific, an objection must 

identify the particular finding or recommendation to which objection is made, state the basis for 

the objection, and specify the place in the magistrate judge’s findings, conclusions, and 

recommendation where the disputed determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the magistrate judge is not specific. Failure to file 

specific written objections will bar the aggrieved party from appealing the factual findings and 

legal conclusions of the magistrate judge that are accepted or adopted by the district court, except 

upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th 

Cir. 1996) (en banc).

SIGNED on June 24, 2022.

______________________________________

Hal R. Ray, Jr.

UNITED STATES MAGISTRATE JUDGE

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