IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

GREGORY ALLEN CLAYBON, §

§

Plaintiff, §

§

v. § Case No. 3:22-cv-00912-K-BT

§

DALLAS COUNTY DISTRICT §

ATTORNEY, §

§

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff Gregory Claybon filed this pro se civil action against Defendant the 

Dallas County District Attorney (the “DA”) on April 25, 2022. (ECF No. 3). Because 

he paid the statutory filing fee, Claybon is responsible for properly serving the DA

with a summons and the complaint in accordance with Federal Rule of Civil 

Procedure 4. To date, however, Claybon has failed to effect proper service of 

process in compliance with Rule 4. Therefore, the Court should dismiss Claybon’s

complaint without prejudice. 

Background

Claybon filed this civil action alleging he was deprived of due process under 

the Fourteenth Amendment when he was “illegally arrested” in 1999, subjected to 

a “bogus and illegitimate court room hearing,” and “illegally” sentenced to ten

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years in prison.1 Compl. 1 (ECF No. 3). Thereafter, Claybon advised the Court that 

he sent notice of his claim to the DA via certified mail. See Req. Hr’g 1. (ECF No. 

6). In response to this information, the Court explained to Claybon that, because 

he is a party to the litigation, he may not serve the DA himself. Order (ECF No. 7)

(citing Fed. R. Civ. P. 4(c) (“Any person who is at least 18 years old and not a party

may serve a summons and complaint.”). The Court also warned Claybon, “[i]f a 

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

motion or on its own after notice to plaintiff—must dismiss the action without 

prejudice against that defendant or order that service be made within a specified 

time.” Order (quoting Fed. R. Civ. P. 4(m)). The Court ordered Claybon to effect 

proper service on the DA and file proof of that service with this Court by July 25.

Id.

1 It appears that Claybon’s claims could be barred by the applicable statute of 

limitations. A civil rights action under 42 U.S.C. § 1983 is governed by a two-year 

statute of limitations. See Owens v. Okure, 488 U.S. 235, 250 (1989) (stating 

federal court should look to general personal injury limitations period of forum 

state); Ali v. Higgs, 892 F.2d 438, 439 (5th Cir. 1990) (finding limitations period 

in Texas is two years). Under federal law, a “cause of action accrues, so that the 

statutory period begins to run, when the plaintiff knows or has reason to know of 

the injury which is the basis of the action.” Gonzales v. Wyatt, 157 F.3d 1016, 1020 

(5th Cir. 1998). However, limitations is a defense and, generally, may not be raised 

by the court sua sponte. Lebouef v. Island Operating Co., Inc., 342 F. App’x 983, 

984 (5th Cir. 2009) (“[I]n an ordinary civil case, where the court has no special 

duty to examine the pleadings, the affirmative defense of statute of limitations can 

be waived and may not be raised by the court sua sponte.”). This case does not fall 

within one of the categories of cases in which the Fifth Circuit has recognized the 

trial court’s authority to raise statute of limitations defenses sua sponte: (i) habeas 

corpus petitions; (ii) suits by prisoners under 42 U.S.C. § 1983; and (iii) in forma 

pauperis petitions. See id. at 984 & n.1; Kiser v. Johnson, 163 F.3d 326, 328–29 

(5th Cir. 1999).

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On June 27, Claybon filed a copy of his summons to the DA, but he failed to 

include proof of proper service. (ECF No. 8). Subsequently, Claybon filed the 

following motions and requests:

1. Motion for Hearing, filed on July 19 (ECF No. 9); 

2. Permission to Allow a Court Date to be Scheduled, filed on 

September 8 (ECF No. 10);

3. Request for Clerk to issue Default, filed on September 8 

(ECF No. 11); 

4. Request for Clerk to issue Default, filed on September 8 

(ECF No. 12); 

5. Request for Hearing, filed on September 8 (ECF No. 13); 

and 

6. Motion (ECF No. 15) and Affidavit in Support of Motion for 

Default Judgment, filed on September 8 (ECF No. 14).

In his motion for default judgment, Claybon states “a copy of [ ] summons and 

complaint in this civil action was served by plaintiff via certified mail upon the 

Dallas County District Attorney.” Motion (ECF No. 15) (emphasis added). On 

September 13, Claybon filed exhibits to his motion for default judgment. (ECF No. 

16). Exhibit 2 is a photocopy of certified mail receipts. Id. The clerk declined to 

enter default because service on the DA is still not proper.

Legal Standard and Analysis

Rule 4 provides that “[t]he plaintiff is responsible for having the summons 

and complaint served within the time allowed by Rule 4(m) and must furnish the 

necessary copies to the person who makes service.” Fed. R. Civ. P. 4(c)(1). After 

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effecting service, the plaintiff must file proof of service with the Court. Fed. R. Civ. 

P. 4(l). If the plaintiff fails to serve a defendant “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,” unless the plaintiff 

shows both (1) good cause for his failure to timely and properly effect service and 

(2) good cause for the court to extend the time for service for an appropriate period. 

Fed. R. Civ. P. 4(m); Lewis v. Sec’y of Pub. Safety & Corr., 870 F.3d 365, 369 (5th 

Cir. 2017) (“Rule 4(m) requires dismissal if a defendant is not served within 90 

days after the complaint is filed, unless the plaintiff shows good cause for the 

failure.”); see also Fed. R. Civ. P. 41(b) (providing for dismissal, with or without 

prejudice, for failure to prosecute and obey court orders). 

“A pro se plaintiff is entitled to notice before a district court dismisses an 

action, sua sponte, for failure to timely serve the defendants under Rule 4(m).”

Drgac v. Treon, 2008 WL 4746984, at *1 (S.D. Tex. Oct. 27, 2008) (citing Lindsey 

v. U.S. R.R. Ret. Bd., 101 F.3d 444, 446 (5th Cir. 1996)). But “[a] plaintiff’s pro se

status and ignorance of the law do not constitute cause for his failure to effect 

service in compliance with the rules.” Drgac, 2008 WL 4746984, at *1 (citing Kersh 

v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988)).

Under Federal Rule of Civil Procedure 41(b), a trial court has discretionary 

authority to dismiss an action sua sponte for a plaintiff’s failure to prosecute or 

comply with any order of the court. Link v. Wabash R.R., 370 U.S. 626, 629-30 

(1962); Gates v. Strain, 885 F.3d 874, 883 (5th Cir. 2018) (citations omitted). 

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“This authority [under Rule 41(b)] flows from the court’s inherent power to control 

its docket and prevent undue delays in the disposition of pending cases.” Boudwin 

v. Graystone Ins., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link, 370 U.S. 626 at 

630-31). 

Here, Claybon, proceeding pro se, paid the statutory filing fee; therefore, he 

is responsible for properly serving the DA with a summons and complaint per

Federal Rule of Civil Procedure 4. The clerk’s office provided Claybon with a Notice 

and Instruction to Pro Se Party on April 26 (ECF No. 2), which advised Claybon to

read and follow the Federal Rules of Civil Procedure and that service must be made 

on the DA. See Notice and Instrs. to Pro Se Party 1, ¶ 3, 5-6. The Court reminded 

Claybon of the service requirement in its June 21 Order (ECF No. 7). The Court 

specifically explained that, because he is a party to the lawsuit, Claybon may not 

serve the DA himself. The Court also advised Claybon that failure to properly serve 

the DA within 90 days of filing his complaint may result in dismissal. The Court 

ordered Claybon to effect proper service on the DA by July 25.

But Claybon still has not made proper service on the DA. Rather, all the 

evidence of record shows that Claybon attempted to serve the DA himself, by 

mailing the summons and complaint via certified mail. (ECF Nos. 8, 15 & 16). To 

effect proper service, Claybon must have someone (18 years or older)—other than 

himself—serve the DA with the summons and complaint. 

It has been 140 days since Claybon filed his complaint. The Court ordered 

Claybon to properly serve the DA by July 25, 2022. To date, proper service has not 

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been made. Claybon has not provided any explanation for why service has not been 

made. Therefore, Claybon has not demonstrated good cause. Claybon has also 

failed to comply with the Court’s order. Accordingly, the Court should dismiss 

Claybon’s complaint without prejudice under Rule 4(m), for failure to effect proper 

service, and under Rule 41(b), for failure to comply with a court order. 

Recommendation

The District Judge should DISMISS Claybon’s complaint without prejudice. 

SO RECOMMENDED.

September 21, 2022.

____________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all parties in 

the manner provided by law. Any party who objects to any part of this report and 

recommendation must file specific written objections within 14 days after being 

served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be 

specific, an objection must identify the specific finding or recommendation to 

which objection is made, state the basis for the objection, and specify the place in 

the magistrate judge’s report 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 

Services Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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