The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SHELLY M. JOHNSON CIVIL ACTION
VERSUS NO. 23-749-SDD-SDJ
U.S. POSTAL SERVICE
NOTICE
Please take notice that the attached Magistrate Judge’s Report has been filed with the Clerk
of the U.S. District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the
attached report to file written objections to the proposed findings of fact, conclusions of law, and
recommendations set forth 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 accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE
WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT.
Signed in Baton Rouge, Louisiana, on July 17, 2025.
S
SCOTT D. JOHNSON
UNITED STATES MAGISTRATE JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SHELLY M. JOHNSON CIVIL ACTION
VERSUS NO. 23-749-SDD-SDJ
U.S. POSTAL SERVICE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court as a result of Plaintiff Shelly Johnson’s failure to timely
serve Defendant the U.S. Postal Service. Because Plaintiff has consistently failed to serve
Defendant, it is recommended that this case be dismissed.
I. BACKGROUND
Plaintiff Shelly Johnson instituted this action on August 16, 2023, against the U.S. Postal
Service, alleging that Defendant is “doing illegal things to [her] home and car.”1 Per Plaintiff,
Defendant is, inter alia, turning off her radios, putting apps on her television, and making her
monthly utility bills go up each month as a result of the heat from the sun shining on her roof.2 On
September 20, 2023, the Court granted Plaintiff’s application to proceed in forma pauperis, at
which time the Court specifically informed Plaintiff that she “is responsible for submitting the
summons and address for the defendant(s)” and that Plaintiff “is responsible for service of
summons and complaint on the defendant(s).”3
Approximately one year later, on September 18, 2024, after Defendant failed to make an
appearance in this case and Plaintiff failed to file proof of service into the record, the Court issued
a Show Cause Order based on Plaintiff’s failure to serve Defendant.4 In the Order, the Court
1 R. Doc. 1 at 3.
2 Id. at 4.
3 R. Doc. 5 at 1.
4 R. Doc. 7.
instructed Plaintiff to respond in writing within 21 days of the Order, explaining “why her claims
asserted against U.S. Postal Service [] should not be dismissed because of her failure to serve”
Defendant within the time allowed by Federal Rule of Civil Procedure 4(m).5 To date, no response
from Plaintiff has been received, no proof of service has been filed in the record, and there has
been no activity by Plaintiff in the case since September 5, 2023.
II. LAW & ANALYSIS
Fed. R. Civ. P. 4(m) provides for dismissal of an action without prejudice if a plaintiff fails
to serve within 90 days after the complaint is filed. Local Civil Rule 41(b)(1)(A) also provides
that “[a] civil action may be dismissed by the Court for lack of prosecution … [w]here no service
of process has been made within 90 days after filing of the complaint.” This case has been pending
for almost two years, and, to the Court’s knowledge, summons has not been issued, and service
has not been effected. Plaintiff was even given an additional opportunity to serve Defendant, well
beyond the 90-day limit set forth in Rule 41. Plaintiff also was explicitly told that failure to adhere
to the extended deadline could result in a recommendation of dismissal. Yet, to date, Plaintiff has
failed to properly serve Defendant.
To avoid dismissal, Plaintiff must show good cause for failing to serve, and, if good cause
is shown, the Court must extend the time for service. Thompson v. Brown, 91 F.3d 20, 21 (5th Cir.
1996). To determine whether good cause exists, the Court looks at the actions of the plaintiff
during the relevant time period. See Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304,
1306 (5th Cir. 1985). A determination whether a plaintiff has made a sufficient showing of good
cause “is necessarily fact-sensitive” and depends on the particular circumstances of the case.
Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 446 (5th Cir. 1996). At a minimum, in order to show
5 Id.
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. Because Plaintiff has wholly failed to respond to the Court’s
September 18, 2024, Show Cause Order, explaining why she has not yet served Defendant, she
has not demonstrated good cause.
However, even if Plaintiff lacks good cause, the Court may extend the time for service.
Thompson, 91 F.3d at 21. Such an extension may be warranted “if the applicable statute of
limitations would bar the refiled action.” Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 325 (5th
Cir. 2008) (citing Fed. R. Civ. P. 4(m) advisory committee’s note (1993)). Here, while Plaintiff
does not provide dates of the alleged actions by Defendant, they purportedly occurred prior to
Plaintiff filing her Complaint in August 2023. As such, dismissal of this Complaint without
prejudice may have the effect of a dismissal with prejudice, given that the events giving rise to the
Complaint likely occurred approximately two years ago. Accordingly, the Court must apply a
heightened standard to determine whether this case should be dismissed.
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, 546 F.3d at 326 (internal quotation marks and citations omitted). Further, one of the
following three factors should be present: “(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.
Here, the delay is solely caused by Plaintiff; she is proceeding pro se in this action. In addition,
despite explicit notice from the Court, Plaintiff has wholly failed to even attempt to serve
Defendant, as no summons has been requested. Further, the Court already has granted Plaintiff
additional time to serve Defendant, during which time Plaintiff took no action. Plaintiff’s
continued inaction in this case supports dismissal, even if refiling may be time-barred.
III. RECOMMENDATION
Accordingly,
IT IS RECOMMENDED that Plaintiff’s claims be DISMISSED WITHOUT
PREJUDICE for failure to timely effect service upon Defendant the U.S. Postal Service.
Signed in Baton Rouge, Louisiana, on July 17, 2025.
S
SCOTT D. JOHNSON
UNITED STATES MAGISTRATE JUDGE