United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations therein. Failure to
file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being
served will bar you, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
the Court is a Motion to Dismiss filed on behalf of
defendants Dr. Paul Toce and James LeBlanc (R. Doc. 18). The
motion is opposed. See R. Doc. 31.
pro se plaintiff, an inmate confined at the
Louisiana State Penitentiary (“LSP”), Angola,
Louisiana, filed this action pursuant to 42 U.S.C. §
1983 against the Paul Toce, James LeBlanc, and Jane Doe L.
Ducote, alleging that is constitutional rights were violated
due to deliberate indifference to his health and serious
medical conditions. The plaintiff seeks monetary,
declaratory, and injunctive relief.
Dr. Toce and Secretary LeBlanc move to dismiss pursuant to
Rule 12(b)(5) of the Federal Rules of Civil Procedure for
failure to timely perfect service. The instant motion seeks
dismissal of the plaintiff's claims asserted against
defendants Toce and Leblanc, contending that because service
of process was not effected within 90 days of the filing of
the Complaint as mandated by Rule 4(m) of the Federal
Rules of Civil Procedure, the plaintiff's claims
asserted against defendants Toce and LeBlanc should be
plaintiff's Complaint and Motion to Proceed in Forma
Pauperis were filed on or about January 22, 2018.
See R. Docs. 1 and 2. After the plaintiff filed the
requisite Statement of Account, the Court determined that the
plaintiff was entitled to proceed in forma pauperis
and was required to pay an initial partial filing fee.
See R. Docs. 3 and 4. The initial partial filing fee
was timely paid on May 7, 2018. Inasmuch as the plaintiff was
proceeding pro se in this case, the Court, pursuant
to an Order dated June 6, 2018 (R. Doc. 5), directed the
United States Marshal's Office to serve the defendants
named herein, wherever found. On September 4, 2018, service
was effected upon defendants Toce and LeBlanc, see
R. Doc. 7, and these defendants have responded with the
instant Motion to Dismiss.
to Rule 4(m) of the Federal Rules of Civil
Procedure, “[i]f a defendant is not served within
90 days after the complaint is filed, the court ... must
dismiss the action without prejudice against that defendant
or order that service be made within a specified time.”
This Rule further provides, however, that “if the
plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.”
determination regarding whether a plaintiff has made a
sufficient showing of good cause “is necessarily
fact-sensitive” and depends upon the particular
circumstances of the case. Lindsey v. United States
Railroad Retirement Board, 101 F.3d 444, 446 (5th Cir.
1996). At a minimum, in order to show 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.” Id., quoting
Peters v. United States, 9 F.3d 344, 345 (5th Cir.
1993). A district court retains the 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). Further, it may be an abuse of discretion for the
Court to dismiss a defendant, even in the absence of good
cause, where the effect of such dismissal would be a
dismissal with prejudice because of the running of the
applicable limitations period. See Millan v.
USAA General Indemnity Company, 546 F.3d 321, 325-26
(5th Cir. 2008).
instant case, good cause exists for the plaintiff's
failure to timely effect service. As a pro se
litigant, the plaintiff could not effect service on the
defendants until the Court determined his pauper status and
issued an order appointing the United States Marshal's
Office for service. The record does not contain any evidence
of dilatoriness or fault on the part of the plaintiff, nor do
the defendants assert that the same has occurred. As such,
good cause exists for the untimely service in this matter and
the defendants' Motion to Dismiss (R. Doc. 18) should be
the Court retains the discretion to extend the time for
service even in the absence of good cause. Additionally,
inasmuch as a dismissal of defendants Toce and LeBlanc at
this time would likely operate as a dismissal with prejudice
(because of the running of the applicable limitations
period), the Court's authority to dismiss these
defendants is limited. It has generally been held that
“dismissal with prejudice 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. Millan v. USAA General
Indemnity Company, supra, 546 F.3d at 326 (internal
quotations marks omitted). The delay must be longer than a
few months and “must be characterized by significant
periods of total inactivity.” Id. at 327
(internal quotation marks omitted). See also
McGrew v. McQueen, 415 Fed.Appx. 592, 596 (5th Cir.
2011). Dismissals with prejudice are generally
reserved for “egregious and sometimes outrageous
delays” by the plaintiff that threaten the integrity of
the judicial process and often prejudice the defense.
Millan v. USAA General Indemnity Company, supra, 546
F.3d at 327. “[I]t is not a party's
negligence- regardless of how careless, inconsiderate, or
understandably exasperating-that makes conduct contumacious;
instead it is the stubborn resistance to authority which
justifies a dismissal with prejudice.” Id.
(internal quotation marks omitted). When the Fifth
Circuit has affirmed dismissals with prejudice, it has
generally found at least one of three aggravating factors:
(1) delay caused by the plaintiff himself and not his
attorney; (2) actual prejudice to the defendant; or (3) delay
caused by intentional conduct. Id. at 326. In the
instant matter, there is no such record of delay or
contumacious conduct by the plaintiff.