IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RAYMON CERVANTES, JR., )

)

Plaintiff, )

vs. ) No. 3:22-CV-1802-C (BH)

)

DALLAS COUNTY CIU UNIT, et al., )

)

Defendants. ) Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Based on the relevant filings and applicable law, the claims against all defendants except the

Dallas County CIU Unit should be DISMISSED without prejudice sua sponte for failure to comply

with Fed. R. Civ. P. 4(m) by serving them within 90 days.

I. BACKGROUND

On August 16, 2022, the pro se plaintiff filed this civil action arising from his criminal

conviction in 1976, and sought leave to proceed in forma pauperis (IFP). (See docs. 3, 4.) By Notice

of Deficiency and Order dated August 18, 2022, he was notified that his complaint did not comply

with the requirement in Fed. R. Civ. 8(a) of a short and plain statement of his claims, and that his

IFP application did not provide enough information because it had not been fully completed. (See

doc. 5.) He was ordered to file an amended complaint that complied with Rule 8(a) and to either pay

the filing fee or submit a fully completed and signed IFP application within fourteen days, and he

was specifically advised that a failure to do so could result in the dismissal of the case for failure to

prosecute or comply with court orders. (See id.) 

On August 22, 2022, the plaintiff filed an addendum, and he filed an amended complaint on

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 By Special Order No. 3-251, this pro se case has been automatically referred for full case management.

Case 3:22-cv-01802-S-BH Document 23 Filed 05/26/23 Page 1 of 6 PageID 323
August 29, 2022, but he did not file a completed IFP application. (See docs. 6, 7.) By Second Notice

of Deficiency and Order dated September 26, 2022, he was again ordered to submit a fully

completed and signed IFP application within fourteen days. (See doc. 8.) The order specifically

advised that a failure to comply could result in the dismissal of the case for failure to prosecute or

comply with court orders. (See id.) Because he did not timely respond, on November 18, 2022, it

was recommended that this action be dismissed for failure to prosecute or follow court orders. (See

doc. 9.) Over the plaintiff’s objection, the recommendation was accepted, and a judgment dismissing

the action was entered on December 5, 2022. (See docs. 10, 11, 12.) On that same day, the plaintiff

paid the filing fee; the recommendation, the order accepting, and the judgment were subsequently

vacated. (See docs. 13, 14.) 

By order dated December 7, 2022, the plaintiff was expressly advised of his duty to timely

serve the defendants:

Because he paid the fee, the plaintiff is now responsible for serving each defendant with a

summons and a copy of the complaint in this case as provided by Rule 4(c) of the Federal

Rules of Civil Procedure. If a defendant is not served within 90 days after the filing of the

complaint, the action is subject to dismissal against that defendant without prejudice. See

Fed. R. Civ. P. 4(m). In addition, Fed. R. Civ. P. 4(l)(1) requires Plaintiffs to file proof of

service with the Court unless service is waived. This proof must consist of “the server’s

affidavit” if service was not effected by the United States Marshal or a deputy marshal. Id. 

If the plaintiffs do not file a valid return of service or otherwise show that each defendant

was properly served, this action may be dismissed against that defendant.

(See doc. 14.) The order also directed the Clerk of Court, to the extent she had not already done so,

to mail the plaintiff summonses and a copy of Rule 4 of the Federal Rules of Civil Procedure. (Id.) 

On December 21, 2022, January 13, 2023, and February 21, 2023, the plaintiff filed

objections to the dismissal of his case and additional attachments to his complaint. (See docs. 15,

16, 17.)

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 By order dated February 28, 2023, the plaintiff was directed to either file a valid return of

service, or show cause in writing why service could not be made on the defendants, no later than

March 14, 2023. (See doc. 18.) The order expressly stated that if the plaintiff failed to comply with

the order, dismissal of the case would be recommended without further notice. (See id.) On March

3, 2023, he filed a copy of a receipt for a payment to the United States Marshals Service for service,

and on March 14, 2023, he filed a return of service showing service only on one defendant, the

Dallas County CIU Unit, through an individual allegedly authorized to accept service on its behalf,

but who was not named as an individual defendant. (See docs. 19, 20, 22.) As of this date, the

plaintiff has not filed a valid return of service for any defendant other than the Dallas County CIU

Unit or shown cause in writing for his failure to personally serve the other defendants. Nor has he

filed anything else. 

II. RULE 4(m)

Because he paid the filing fee, the plaintiff was responsible for serving the defendants with

a summons and a copy of the complaint as provided by Rule 4(c) of the Federal Rules of Civil

Procedure. He was required to make proper service within 90 days of filing the complaint. See Fed.

R. Civ. P. 4(m). He was also required to file proof of service, unless service was waived. See Fed.

R. Civ. P. 4(l)(1). Proof consists of “the server’s affidavit” when service is not effected by a United

States marshal or deputy marshal. Id. 

When proper service is not made within 90 days of filing a complaint, an action is subject

to sua sponte dismissal without prejudice. Fed. R. Civ. P. 4(m). Dismissal is not proper “if the

plaintiff shows good cause for the failure” to properly accomplish service, however. Id. In the Fifth

Circuit, courts must allow additional time for service if a plaintiff can establish good cause. Millan

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v. USAA Gen. Indem. Co., 546 F.3d 321, 325–26 (5th Cir. 2008) (citing Thompson v. Brown, 91 F.3d

20, 21 (5th Cir. 1996)). “[T]o establish ‘good cause’ the plaintiff must demonstrate at least as much

as would be required to show excusable neglect, as to which simple inadvertence or mistake of

counsel or ignorance of the rules usually do not suffice.” Lindsey v. United States R.R. Ret. Bd., 101

F.3d 444, 446 (5th Cir. 1996) (quoting Peters v. United States, 9 F.3d 344, 345 (5th Cir. 1993)).

Courts also typically require “some showing of good faith on the part of the party seeking an

enlargement and some reasonable basis for noncompliance within the time specified.” Lambert v.

United States, 44 F.3d 296, 299 (5th Cir. 1995). The plaintiff bears the burden to show good cause.

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

Even if the plaintiff fails to show good cause, a court has the discretionary power to extend

the time for service instead of dismissing the case without prejudice. Millan, 546 F.3d at 325 (citing

Thompson, 91 F.3d at 21). Exercise of this discretionary power “may be warranted, ‘for example,

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.’” Millan, 546 F.3d at 325 (quoting Fed. R. Civ.

P. 4(m) advisory committee’s note (1993)). 

Here, far more than 90 days have passed since the plaintiff filed this action, but he has not

accomplished service on any defendants except the Dallas County CIU Unit despite the order to file

a valid return of service or show cause in writing as to why service could not be made on the

defendants. He has not filed a valid return of service as to any defendants except the Dallas County

CIU Unit, or anything else, so he has not met his burden to show cause for his failure to properly

serve those defendants. He has not shown anything that supports the exercise of discretion to provide

more time to accomplish service. Accordingly, no extension of time is required, and dismissal of

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the action against the defendants other than the Dallas County CIU Unit is warranted. See

Caceres-Mejia v. Watson, 718 F. App’x 307, 308–09 (5th Cir. 2018) (per curiam) (finding that the

district court did not abuse its discretion in dismissing an action without prejudice for lack of timely

service where the plaintiff did not follow state law for service of summons or file the requisite proof

to establish that the defendant acknowledged service of process). 

III. RECOMMENDATION

The claims against all defendants except the Dallas County CIU Unit should be

DISMISSED without prejudice sua sponte for failure to comply with Fed. R. Civ. P. 4(m) by

serving them within 90 days, and judgment should be entered unless the plaintiff files a valid proof

of service for those defendants within the time for objecting to this recommendation, or by some

other deadline set by the Court.

SO RECOMMENDED on this 26th day of May, 2023.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

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

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

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