United States Court of Appeals

for 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

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No. 24-50194

2

Federal Rule of Civil Procedure 41(b) for want of prosecution/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 

Amendment, 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, on 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 directed Buchanan to Federal Rule of Civil Procedure 

4(i)(1), and included specific instructions from Rule 4(i)(1) to effectuate

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 motions 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, 

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pursuant to Federal Rule of Civil Procedure 4(m),1 to properly serve each 

named defendant and file proof of servicewithin 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 Defendants “may result in dismissal of 

the case” and that “[n]o further extensions of this deadline will be granted 

absent a showing of good cause.” 

On February 1, 2024, the United States filed a copy of another letter 

it sent to Buchanan specifically explaining how another one of his attempts at

service was defective under Rule 4. It again directed Buchanan to the specific 

instructions regarding service on 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 service. 

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 specified time.” As noted by the magistrate judge, the 90-day period for service 

expired on August 24, 2023. 

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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, the magistrate judge recommended that 

Buchanan’s case be dismissed with prejudice under Rule 41(b). 

Buchanan objected to the magistrate judge’s report and 

recommendation, arguing that he had in fact properly served the United 

States. Overruling Buchanan’s objection, the district court adopted the 

magistrate judge’s report and recommendation and dismissed 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).

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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 had not appealed the 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). After 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. The magistrate judge and district court determined 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”).

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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).

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