United States District Court, W.D. Louisiana, Shreveport Division
ELIZABETH E. FOOTE, JUDGE.
REPORT AND RECOMMENDATION
L. HAYES, MAG. JUDGE.
January 4, 2018, the court notified plaintiff Sharon Fuller,
who is proceeding pro se in this matter, that it was
considering dismissing her case because she failed to perfect
service of process within 120 days after filing suit. (Jan.
4, 2018, Notice of Intent to Dismiss [doc. # 6]). The court
granted plaintiff 14 days from the date of the order to
perfect and file the return(s) of service, or to file
evidence of good cause for her failure to timely perfect
same. Id. To date, however, there is no indication
in the record that the government has been served, nor has
plaintiff explained to the court her failure to serve the
absence of good cause, “[i]f a defendant is not served
within 120 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 . . .” Fed.R.Civ.P. 4(m) (emphasis added). In
the case sub judice, plaintiff neither provided any
explanation for the lack of service, nor requested an
extension of time to properly perfect service. Accordingly,
good cause is lacking.
undersigned further observes that to the extent the
applicable statute of limitations may bar plaintiff from
re-filing the instant suit, then dismissal at this juncture
effectively will constitute dismissal “with prejudice,
” - “an extreme sanction that deprives the
litigant of the opportunity to pursue his claim.”
Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1190
(5th Cir. 1992) (internal quotations omitted).
Dismissal with prejudice for failure to prosecute or to
comply with a court order is warranted only where “a
clear record of delay or contumacious conduct by the
plaintiff exists and a lesser sanction would not better serve
the interests of justice.” See Millan v. USAA
General Indem. Co., 546 F.3d 321, 325 (5th
Cir. 2008) (citations and internal quotation marks omitted).
In addition, the Fifth Circuit generally requires the
presence of at least one of three aggravating factors:
“(1) delay caused by [the] plaintiff h[er]self and not
h[er] attorney; (2) actual prejudice to the defendant; or (3)
delay caused by intentional conduct.” Id.
undersigned finds that the requirements for a dismissal that
is effectively with prejudice are satisfied in this
case. As discussed above, plaintiff has ignored at least one
court order. Further, because plaintiff is proceeding in
forma pauperis in this matter, she likely does not enjoy the
financial resources to fund an alternative monetary
sanction. Moreover, dismissal of the case may be the
least sanction where, as here, plaintiff is not actively
pursuing her cause of action. Finally, plaintiff's
unrepentant flaunting of court orders reflects her own
contumaciouness or “stubborn resistance to
authority” which is personally attributable to her as
a pro se litigant. Accordingly, IT IS RECOMMENDED that the
instant complaint be DISMISSED, without prejudice.
Fed.R.Civ.P. 4(m); LR 41.3W.
the provisions of 28 U.S.C. §636(b)(1)(C) and FRCP Rule
72(b), the parties have fourteen (14) days
from service of this Report and Recommendation to file
specific, written objections with the Clerk of Court. A party
may respond to another party's objections within
fourteen (14) days after being served with a
copy thereof. A courtesy copy of any objection or response or
request for extension of time shall be furnished to the
District Judge at the time of filing. Timely objections will
be considered by the District Judge before he makes a final
PARTY'S FAILURE TO FILE WRITTEN OBJECTIONS TO THE
PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS CONTAINED
IN THIS REPORT WITHIN FOURTEEN (14) DAYS FROM THE DATE OF ITS
SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON GROUNDS OF
PLAIN ERROR, FROM ATTACKING ON APPEAL THE UNOBJECTED-TO
PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY
THE DISTRICT JUDGE.
 “To establish good cause, a
litigant 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 does not suffice.'” Systems Signs
Supplies v. U.S. Dept. of Justice, Washington, D.C., 903
F.2d 1011, 1013 (5th Cir. 1990). Moreover,
“the claimant must make a showing of good faith and
establish 'some reasonable basis for noncompliance within
the time specified.'” Id. (quoting 4A C.
Wright & A. Miller, Federal Practice and Procedure §
1165, at 480 (2d ed. 1987)).
While the court is cognizant of plaintiff's pro se
status, “‘the right of self-representation does
not exempt a party from compliance with relevant rules of
procedural and substantive law.'” Kersh v.
Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988) (quoting
Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.
See Brown v. Oil States Skagit
Smatco, 664 F.3d 71, 78 n.2 (5th Cir. 2011) (noting that
a court may consider a plaintiff's IFP status in
determining that a monetary sanction would not be an