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 Joseph Lamartiniere, Kevin Benjamin, and Marcus
Jones (R. Doc. 9). The motion is opposed. See R.
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 Joseph Lamartiniere, Kevin Benjamin, and Marcus
Jones alleging that his constitutional rights were violated
due to retaliation. The plaintiff seeks monetary,
declaratory, and injunctive relief.
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, 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
the defendants should be dismissed.
plaintiff's Complaint and Motion to Proceed in Forma
Pauperis were filed on or about September 10, 2018.
See R. Docs. 1 and 2. On October 23, 2018, the Court
determined that the plaintiff was entitled to proceed in
forma pauperis but was required to pay an initial
partial filing fee. See R. Doc. 5. On or about
November 15, 2018, the plaintiff paid the initial partial
filing fee. Inasmuch as the plaintiff was proceeding pro
se in this case, the Court, pursuant to an Order dated
January 29, 2019 (R. Doc. 6), directed the United States
Marshal's Office to serve the defendants named herein,
wherever found. On April 5, 2019, service was effected upon
defendants Lamartiniere and Jones. See R. Doc. 11.
On April 10, 2019, the summons issued to defendant Benjamin
was returned unexecuted. See R. Doc. 12. On or about
May 28, 2019, the plaintiff filed a Motion seeking to obtain
the last known address of defendant Benjamin. See R.
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. 9) 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 the defendants 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.