IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOHN DAVID SHOCKLEY, §

Plaintiff, §

§ Civil Action No. 3:06-CV-0223-K

v. §

§

UNIVERSITY OF TEXAS MEDICAL §

BRANCH, et al., §

Defendants. § Pretrial Management

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to Special Order No. 3-251, the District Court referred this case for pretrial management, including the determination of non-dispositive motions and issuance of findings of fact and

recommendations to the District Court on dispositive motions. On its own motion after notice to

Plaintiff, the Court considers whether this action should be dismissed as it pertains to Defendant

Kathy Finch (“Finch”) for the failure to timely serve her in accordance with Fed. R. Civ. P. 4(m).

Based on the relevant filings and applicable law, the Court RECOMMENDS that the Court

DISMISS this action without prejudice as it pertains to Finch.

I. BACKGROUND

On or about February 3, 2006, Plaintiff filed the instant pro se action against various defendants, including Finch. The Court thereafter granted him permission to proceed with this action in

forma pauperis (“IFP”). On January 12, 2007, the Court extended the time for service contemplated

by Fed. R. Civ. P. 4(m), and ordered the United States Marshal (“USM”) to effectuate service upon

each named defendant within thirty days. On May 4, 2007, the USM filed a return of service as to

Finch indicating that the summons was returned unexecuted because she was “no longer employed

[at the Dallas County Jail], no forwarding address, [and] no info available to locate.” 
1

 Plaintiff also states that he needs the USM to serve Finch so that she can give expert witness testimony

regarding the deliberate indifference that occurred at the Dallas County Jail. (Resp. to Order Show Cause at 2.) This

statement raises a question regarding whether Plaintiff actually wants Finch served as a defendant or as a witness. It

clearly does not constitute good cause related to service of process on her. 

2

Because Plaintiff provided the Court with the last known address for Finch and because he

is a prisoner proceeding IFP who cannot obtain her residence address, the Court sua sponte ordered

the other named defendants to provide a forwarding address for Finch under seal on September 26,

2007. After receiving a new address for Finch, the Court again extended the time for service, and

on October, 15, 2007, directed the USM to serve her within thirty days. On January 28, 2008, the

USM filed a return of service under seal indicating that the summons for Finch was returned unexecuted because it had made three unsuccessful attempts to serve process: (1) November 8, 2007,

at 4:03 p.m.; (2) November 9, 2007, at 8:47 a.m.; and (3) November 20, 2007, at 1:05 p.m. 

On May 22, 2008, the Court sua sponte directed Plaintiff to show good cause in writing for

the failure to serve Finch. (See Order to Show Cause.) Because Plaintiff had taken no action

regarding the failure to serve Finch, the Court specifically informed him that “he may not merely

rely upon his entitlement to service of process by the [Marshal].” (Id. (citing Lindsey v. U.S. R.R.

Retirement Bd., 101 F.3d 444, 446-47 (5th Cir. 1996); Rochon v. Dawson, 828 F.2d 1107, 1110 (5th

Cir. 1987))). In response, Plaintiff states that he is a convicted felon who is currently incarcerated

in prison and proceeds pro se in this action. (See Resp. to Ord. Show Cause at 1.) He suggests that

the USM has not sufficiently tried to serve Finch and that it can locate her “at work during work

hours and at home.”1

II. FAILURE TO SERVE

Rule 4(m) of the Federal Rules of Civil Procedure grants the courts discretion to sua sponte

dismiss an action without prejudice, after notice to the plaintiff, for failure to serve the defendant
3

with process within 120 days of the filing of the complaint. Despite such discretion, Rule 4(m)

requires the courts to “extend the time for service for an appropriate period” upon a showing of good

cause by the plaintiff. See also Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988) (burden of

showing good cause for such extension is on plaintiff). “What amounts to ‘good cause’ under any

particular set of circumstances is necessarily fact-sensitive.” Lindsey v. U.S. R.R. Retirement Bd.,

101 F.3d 444, 446 (5th Cir. 1996). At a minimum, “the plaintiff must demonstrate . . . 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.” Id. (quoting Peters v. United States, 9 F.3d 344,

345 (5th Cir. 1993)). Of course, courts retain discretion to extend the time for service even in the

absence of good cause. See Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996).

In this case, it is clear that Finch has not been served within 120 days of the filing of the

complaint. Accordingly, the Court must consider whether Plaintiff has demonstrated good cause

for the failure.

A. Special Procedure for Service in IFP Cases

When a plaintiff proceeds IFP, “[s]pecial rules govern the procedure for service of process.”

Lindsey, 101 F.3d at 446. After an IFP plaintiff takes “reasonable steps to identify the defendant(s)”,

the courts issue process and direct the United States Marshal to serve defendants. Id. An “inmate

need furnish ‘no more than the information necessary to identify the defendant.’” Antonelli v.

Sheahan, 81 F.3d 1422, 1426 (7th Cir. 1996) (quoting Sellers v. United States, 902 F.2d 598, 602

(7th Cir. 1990)). The USM must use due diligence in serving defendants on behalf of an IFP

plaintiff, and if a provided business address is insufficient for service upon a prison employee, due

diligence requires the USM to search for “personal addresses for the defendants and serve the
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individuals at those addresses.” Ellibee v. Leonard, 226 Fed. App’x 351, 359 (5th Cir. 2007) (per

curiam). In other words, the USM must make “reasonable efforts” to obtain new addresses for

defendants who worked in the prison system during the time-period relevant to the litigation, but

who have subsequently changed jobs. Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995) (cited

with approval in Walker v. Navarro County Jail, No. 3:91-CV-1690-D, 1997 WL 42523, at *2-3

(N.D. Tex. Jan. 24, 1997)).

In the IFP context, good cause essentially boils down to whether the failure to properly serve

the defendants is attributable to dilatoriness or fault of the plaintiff or whether fault lies elsewhere.

Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). IFP plaintiffs are “entitled to rely upon

service by the U.S. Marshals and should not be penalized for failure of the Marshal’s Service to

properly effect service of process, where such failure is through no fault of the litigant.” Id. When

the USM “fails to serve a properly addressed summons to a defendant,” good cause generally exists

for extending the time for service. See Cornish v. Tex. Bd. of Crim. Justice Office of the Inspector

Gen., 141 Fed. App’x 298, 301 (5th Cir. 2005); cf. Lindsey, 101 F.3d at 447 (good cause may exist

when the “failure to properly serve a defendant is attributable to government personnel who have

improperly performed their duties”). 

In this case, Plaintiff appears to allege that the USM failed to exercise due diligence in

serving Finch. The first return merely shows that Finch had left employment at the Dallas County

Jail without leaving a forwarding address, and that the USM allegedly had no available information

to locate her. Although due diligence requires a search for Finch’s personal address due to her

changed employment status, see Ellibee, 226 Fed. App’x at 359, the return does not indicate that the

USM undertook such a search. With respect to the second return of service, the USM attempted to
2

 While recognizing that “Rochon did not involve the good cause provision of Rule 4,” Lindsey found the case

“illustrative” and its holding consistent “with the view . . . that good cause is shown when in forma pauperis plaintiffs’

failure to properly serve a defendant is attributable to government personnel who have improperly performed their

duties.” See 101 F.3d at 447. 

5

serve Finch at her home three times during business hours. No alternative attempt to serve Finch

was made. Nevertheless, the Court need not determine whether the USM failed to exercise due

diligence in this case. A finding that the USM failed to exercise due diligence does not

automatically end the inquiry or dictate a finding of good cause. See Lindsey v. U.S. R.R. Retirement

Bd., 101 F.3d 444, 447 (5th Cir. 1996) (recognizing that “dilatoriness or fault” of the plaintiff

impacts good cause and whether a failure to serve is attributable to government personnel). 

B. Inaction by Plaintiff

While reasonable reliance on the USM is warranted, “a plaintiff may not remain silent and

do nothing to effectuate such service. At a minimum, a plaintiff should request service upon the

appropriate defendant and attempt to remedy any apparent service defects of which a plaintiff has

knowledge.” Rochon, 828 F.2d at 1110;2 accord Ellibee, 226 Fed. App’x at 358 (once an IFP

plaintiff “is aware of possible defects in service of process, he must attempt to remedy them”). For

example, good cause is not shown when the plaintiff does nothing after the court notes in ruling on

a pre-trial motion that one defendant had not been served. See Lindsey, 101 F.3d at 446-47. When

an IFP plaintiff does nothing for a few months after learning that a defendant had not been served,

a court may properly find the plaintiff dilatory and at fault for insufficient service. Rochon, 828 F.2d

at 1110; see also VanDiver v. Martin, 304 F. Supp. 2d 934, 943 (E.D. Mich. 2004) (inaction by

plaintiff “supercedes any neglect on behalf of the government agency”). 

In this case, after the first unexecuted return of service was filed on May 4, 2007, the service

matter laid idle for nearly five months before the Court sua sponte sought Finch’s personal address
3

 Notably, Plaintiff has identified Finch as a UTMB employee in his complaint, and the claims against the other

UTMB defendants in their individual and official capacities have been dismissed. Plaintiff also indicates in his response

to the show cause order that he wants Finch served as some sort of expert witness; it is therefore unclear whether he

seeks to sue her or merely subpoena her as a witness.

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on September 26, 2007. While the Court’s second order to serve provided Plaintiff notice that the

USM should have served Finch at the new address by November 14, 2007, there was no relevant

action by Plaintiff until he responded to the order to show good cause on June 2, 2008. Ultimately,

it is Plaintiff’s inaction and lack of diligence that should be faulted for the failure to serve Finch.

In such cases, a dismissal for failure to prosecute does not penalize the plaintiff “for the failure of

the U.S. Marshals and the clerk of the court to effect service . . . but instead because of inaction and

dilatoriness on his part.” Rochon, 828 F.2d at 1110.

In conclusion, Plaintiff has shown no good cause for the failure to serve Finch or to further

extend the time for serving her,3

 and dismissal under Rule 4(m) is appropriate.

III. RECOMMENDATION

For the foregoing reasons, the Court RECOMMENDS that all claims and causes of action

asserted against Defendant Kathy Finch be DISMISSED without prejudice.

SO RECOMMENDED on this 8th day of August, 2008.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE
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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings and recommendation

on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who

desires to object to these findings and recommendation must file and serve written objections within

ten days after being served with a copy. A party filing objections must specifically identify those

findings or recommendation to which objections are being made. The District Court need not

consider frivolous, conclusory, or general objections. Failure to file written objections to the proposed findings and recommendation within ten days after being served with a copy shall bar the

aggrieved party from appealing the factual findings, legal conclusions, and recommendation of the

Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See

Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE