# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________**
No. 24

- 50194 Summary Calendar

**____________ Rickey Buchanan, Sr.,** 

Plaintiff

— Appellant **,**

versus

**United States of America; Department of the Army; Department of the Air Force; San Antonio Justice**  **Department,** Federal Officers/Federal Court System **; United States Department of Veterans Affairs,** 

Defendants —Appellees

**.**

**______________________________** Appeal from the United States District Court for the Western District of Texas USDC No. 5:23

- CV

- 663

**______________________________**
Before **Davis, Stewart**  **,** and **Southwick ,**  Circuit Judges

**. Per Curiam**  **:** *****

Plaintiff

- Appellant, Rickey Buchanan, Sr., proceeding pro se , appeals
the district court’s judgment dismissing his claims with prejudice under

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* This opinion is not designated for publication. See **5th Cir . R.**  47.5. United States Court of Appeals Fifth Circuit 

### FILED September 5, 2024
Lyle W. Cayce Clerk Case: 24-50194 Document: 40-1 Page: 1 Date Filed: 09/05/2024No. 24

- 50194

2 Federal Rule of Civil Procedure 41(b) for want of prosecut ion/ failure to comply with a court order . We **AFFIRM.**

I.
On May 24, 2023, Buchanan filed a complaint naming as defendants the Department of the Army, the Department of the Air Force, the San Antonio Justice Department, and the U.S. Department of Veterans Affairs. He alleged that (1) on August 20, 2020, he was unlawfully arrested by a federal officer; (2) he suffered bodily injuries during the arrest; and (3) a “frivolous and vexatious” case was subsequently filed against him that was
later dismissed. Buchanan contended that his claims involved the “4th
Amendm ent, 6th Amendment , Systematic Entrapment, Systematic Harassment/Hazing, Creating Vexatious Case, False charges.” As relief, he seeks $12.6 million in damages , record expungement, and an injunction against Government officials from further defaming his character.
Approximately four months later, o n September 14, 2023, Buchanan moved for a default judgment against Defendants . On September 20, the
United States filed a copy of a letter it sent to Buchanan , informing him that he had “not yet effectuated proper service on the United States or its agencies

. ” The letter direct ed Buchanan to Federal Rule of Civil Procedure 4(i)(1) , and included specific instructions from Rule 4(i)(1) to effectuat e proper service on the United States and its agencies . Buchanan resubmitted

a motion for default judgment on September 28, 2023. The magistrate judge denied Buchanan’s motion s without prejudice , explaining that because Buchanan had not properly served any defendant, the deadline for answering the suit had not yet begun and thus a default judgment
was not warranted . The magistrate judge further noted that Buchanan had been specifically advised by the United States in its letter of the proper steps to effectuate proper service. The magistrate judge ordered Buchanan , Case: 24-50194 Document: 40-1 Page: 2 Date Filed: 09/05/2024No. 24

- 50194

3 pursuant to Federal Rule of Civil Procedure 4(m), 1 to properly serve each
named d efendant and file proof of service within thirty days of the order , until November 3, 2023.
On November 7, 2023, the magistrate judge granted Buchanan an extension of time to properly serve Defendants until December 8, 2023. The magistrate judge further advised that failure to comply with the order and failure to timely and properly serve Defend ants “may result in dismissal of the case” and that “[n]o further extension s of this deadline will be granted absent a showing of good cause.”
On February 1, 2024, the United States filed a copy of a nother letter it sent to Buchanan specifically explaining how another one of his attempt s at service was defective under Rule 4

. It again direct ed Buchanan to the specific
instructions regarding service o n the United States set forth in Rule 4(i)(1). Buchanan filed an “Objection” to the letter , arguing that he had in fact
effectuated proper serv ice

. On February 20, 2024, the magistrate judge noted that Buchanan ’s complaint had been pending for nearly nine months and that , despite being granted two extensions to execute proper service, Buchanan had yet to do so

. The magistrate judge noted that Federal Rule of Civil Procedure 41(b)
authorized the district court to dismiss an action sua sponte for failure to
prosecute or for failure to comply with a court order

. The magistrate judge determined that Buchanan “produced a clear record of delay,” in that he should have executed service nearly six months prior. The magistrate judge

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1 Rule 4(m) 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 s pecified time.” As noted by the magistrate judge, the 90

- day period for service expired on August 24, 2023. Case: 24-50194 Document: 40-1 Page: 3 Date Filed: 09/05/2024No. 24

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4 further determined that lesser sanctions would not prompt diligent prosecution because Buchanan had been repeatedly instructed on how to effectuate proper service and warned that failure to do so would result in
dismissal of his case. Consequently, t he magistrate judge recommended that Buchanan’s case be dismissed with prejudice under Rule 41(b)

. Buchanan object ed to the magistrate judge’s report and recommendation, arguing that he had in fact properly served the United
States. Overruling Buchanan’s objection, t he district court adopt ed the magistrate judge’s report and recommendation and dismiss ed Buchanan’s claims with prejudice. Buchanan filed a timely notice of appeal.

II.
This Court reviews the district court’s Rule 41(b) dismissal for abuse
of discretion. 2 “Dismissal with prejudice is appropriate only when there is a showing of (a) a clear record of delay or contumacious conduct by the plaintiff, and (b) where lesser sanctions would not serve the best interests of justice.” 3 “In most cases, a plain record of delay or contumacious conduct is found if one of the three aggravating factors is also present: (1) delay caused by the plaintiff; (2) actual prejudice to the defendant; or (3) delay as a result
of intentional conduct.” 4
On appeal, Buchanan does not challenge the basis of the district
court’s dismissal

— that he failed to follow court orders requiring him to

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2 Griggs v. S.G.E. Management, L.L.C. , 905 F.3d 835, 844 (5th Cir. 2018) (citation omitted).

3 Id. (internal quotation marks and citation omitted).

4 Id. (citation omitted). Case: 24-50194 Document: 40-1 Page: 4 Date Filed: 09/05/2024No. 24

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5 properly serve his complaint on Defendants within a certain period of time. 5 Although this Court liberally construes pro se briefs, “ pro se parties must still
brief the issues.” 6 Because Buchanan fails to challenge the basis for the district court’s dismissal under Rule 41(b), he has waived the issue, and it is
the same as if he ha d not appealed th e judgment. 7
Moreover, the record demonstrates that the district court did not abuse its discretion in dismissing Buchanan’s claims with prejudice under Rule 41(b). A fter each of his three failed attempts to properly serve Defendants, Buchanan was notified that his service was defective and specifically instructed on how to effectuate proper service in Defendants’ letters dated September 20, 2023, October 30, 2023, and February 1, 2024. The district court gave Buchanan multiple extensions to effectuate proper service and warned Buchanan that his case would be dismissed if he failed to effectuate proper service within a specified time. Buchanan continued to argue that his attempts at service were proper when Rule 4 clearly showed they were not. T he magistrate judge and district court determin ed that a

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5 Instead, he argues the merits of his claim that he was unlawfully arrested and his constitutional rights violated. Buchanan also appears to assert that the magistrate judge and district court should have been recused because he (Buchanan) and family members previously appeared before them in unrelated matters. As the magistrate judge held below, however, that a judge previously presided over cases involving the same or related parties is not grounds for recusal without evidence of “a deep

- seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. United States , 510 U.S. 540, 555 (1994). Buchanan produced no such evidence here. Buchanan also appears to argue that Federal Rule of Civil Procedure 5 applies. Rule 5, however, relates to proper service of pleadings other than the complaint

. See **Fed. R. Civ. P.** 5(a)(1).

6 Grant v. Cuellar , 59 F.3d 523, 524 (5th Cir. 1995); Yohey v. Collins , 985 F.2d 222, 225 (5th Cir. 1993) (“[A]rguments must be briefed to be preserved.”).

7 Brinkmann v. Dallas Cnty. Deputy Sheriff Abner , 813 F.2d 744, 748 (5th Cir. 1987) (holding that appellant’s failure to identify any error in the basis for the district court’s judgment “is the same as if he had not appealed that judgment”). Case: 24-50194 Document: 40-1 Page: 5 Date Filed: 09/05/2024No. 24

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6 lesser sanction than a Rule 41(b) dismissal with prejudice would not prompt diligent prosecution

. Under these circumstances, we conclude that the district court did not abuse its decision in dismissing Buchanan’s claims with prejudice under Rule 41(b). 8
Based on the foregoing, the district court’s judgment is
**AFFIRMED.**

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8 See Griggs , 905 F.3d at 844 (finding no abuse of discretion in dismissal with prejudice for want of prosecution because plaintiff “persistently refused” to follow district court’s order) ; see also Husley v. State of Tex. , 929 F.2d 168, 171 (5th Cir. 1991) (finding no abuse of discretion in dismissal with prejudice of pro se plaintiff’s claims because district court “not only allowed him a second chance at obtaining service but also instructed him on the proper procedure” and “[i]n response, [he] disregarded a clear and reasonable court order.”) (citation omitted). Case: 24-50194 Document: 40-1 Page: 6 Date Filed: 09/05/2024