Smith v. Richerson Texas Police Arresting Officers

-1-
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JAMES DONALD SMITH, 	§
Plaintiff, 	§
§
v. 	§ 	No. 3:25-CV-499-D-BW
§
RICHARDSON TEXAS POLICE 	§
ARRESTING OFFICERS, 	§
Defendant. 	§ 	Referred to U.S. Magistrate Judge1
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The undersigned recommends that this action be dismissed without prejudice
pursuant to Fed. R. Civ. P. 4(m) for failure to serve the defendant.
I. BACKGROUND
Plaintiff James Donald Smith, proceeding pro se, filed this action on February
27, 2025, while he was incarcerated in the Harris County jail. (See Dkt. No. 3.) On
October 21, 2025, the Court completed judicial screening under 28 U.S.C. § 1915A
and directed Smith to prepare a summons for each defendant, have each defendant
served, and file proof of service by January 20, 2026. (Dkt. No. 13 at 1-2.) Smith
was warned failure to show proof of service by that deadline would subject his
lawsuit to dismissal unless he showed good cause for his failure to serve the
defendants and good cause to extend the deadline. (Id. at 2.)
1 By Special Order No. 3-251, this pro se case has been automatically referred for
judicial screening.
Case 3:25-cv-00499-D-BW Document 18 Filed 03/10/26 Page 1 of 4 PageID <pageID>

-2-
After Smith failed to show that any defendant had been served, the
undersigned entered an order to show cause by February 4 why the action should not
be dismissed pursuant to Fed. R. Civ. P. 4(m). (Dkt. No. 15.) The following day,
however, the clerk received a request from Smith for an extension of the deadline to
serve defendants. (Dkt. No. 16.) The undersigned granted that request and, on
January 27, 2026, extended Smith’s deadline to serve the defendants until March 6,
2026. (Dkt. No. 17.)
Smith’s extended deadline to serve the defendants has passed, and he has not
shown that any defendant in this action has been served.
II. LEGAL STANDARDS AND ANALYSIS
Fed. R. Civ. P. 4 provides that “[t]he plaintiff is responsible for having the
summons and complaint served within the time allowed by Rule 4(m) and must
furnish the necessary copies to the person who makes service.” Fed. R. Civ. P.
4(c)(1). After effecting service, the plaintiff must file proof of service with the court.
Fed. R. Civ. P. 4(l)(1). If the plaintiff fails to serve a defendant “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,” unless
the plaintiff shows both (1) good cause for his failure to timely and properly effect
service and (2) good cause for the court to extend the time for service for an
appropriate period. Fed. R. Civ. P. 4(m); Lewis v. Sec’y of Pub. Safety & Corr., 870
F.3d 365, 369 (5th Cir. 2017). “A pro se plaintiff is entitled to notice before a district
Case 3:25-cv-00499-D-BW Document 18 Filed 03/10/26 Page 2 of 4 PageID <pageID>

-3-
court dismisses an action, sua sponte, for failure to timely serve the defendants under
Rule 4(m).” Drgac v. Treon, No. CIV.A.H-07-4283, 2008 WL 4746984, at *1 (S.D.
Tex. Oct. 27, 2008) (citing Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 446 (5th Cir.
1996)). But “[a] plaintiff's pro se status and ignorance of the law do not constitute
cause for his failure to effect service in compliance with the rules.” Id. (citing Kersh v.
Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988)). “The right of self-representation does
not exempt a party from compliance with relevant rules of procedural and
substantive law.” Wright v. LBA Hospitality, 754 F. App’x 298, 300 (5th Cir. 2019)
(quoting Hulsey v. State of Tex., 929 F.2d 168, 171 (5th Cir. 1991)).
This action should be dismissed pursuant to Rule 4(m). The record does not
reflect that Smith has served any defendant in this action, despite having received
more than an additional month to do so. The undersigned has explained the
consequences of failing to timely file proof of service. Although Smith does not have
counsel in this case, he has not provided any explanation suggesting that he has been
unable to effect service as required by Rule 4 while he continues to conduct his
search for counsel to represent him. Because Smith has not demonstrated reasonable
diligence in attempting to serve any Defendant and has not shown good cause for an
extension, this case should be dismissed pursuant to Rule 4(m).
Case 3:25-cv-00499-D-BW Document 18 Filed 03/10/26 Page 3 of 4 PageID <pageID>

-4-
III. RECOMMENDATION
For the foregoing reasons, the undersigned recommends that this action be
DISMISSED without prejudice for failure to timely serve any defendant with
summons and a copy of the complaint as required by Fed. R. Civ. P. 4(m).
SO RECOMMENDED on March 10, 2026.
______________________________________
BRIAN McKAY
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO OBJECT
A copy of this report and recommendation will be served on all parties in the manner
provided by law. Any party who objects to any part of this report and
recommendation must file specific written objections within 14 days after being
served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be specific,
an objection must identify the finding or recommendation to which objection is
made, state the basis for the objection, and indicate the place in the magistrate
judge’s report and recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to the briefing before the
magistrate judge is not specific. Failure to file specific written objections will bar the
aggrieved party from appealing the factual findings and legal conclusions of the
magistrate judge that are accepted or adopted by the district court, except upon
grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415,
1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1)
(extending the time to file objections to 14 days).
Case 3:25-cv-00499-D-BW Document 18 Filed 03/10/26 Page 4 of 4 PageID <pageID>