JOHN GREGORY WASHINGTON EL v. MICHEAL DOUGLAS (2026)

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Pro se plaintiff “United States of America Republic, John Gregory Washington El” sued “Micheal Douglas d/b/a Internal Revenue Service” (“IRS”) for allegedly violating state and federal laws. Dkt. 1 (formatting altered); see id. (also referring to the defendant as “Michael Douglas of IRS” and calling him a “[d]ebt [c]ollector” and “a private contractor”). Douglas moved to dismiss the complaint. Dkt. 10. El did not respond to the motion, “creat[ing] a presumption that [he] does not controvert the facts set out by [Douglas] and has no evidence to offer in opposition to the motion.” Loc. R. CV-7(d). The court will recommend that the motion be granted.

BACKGROUND

As best the court can tell, El alleges that Douglas, as an IRS employee, unlawfully tried to collect back taxes from him. Dkt. 1 at 2. His claims arise from that purportedly unlawful activity. Id. at 5–18.

Shortly after El filed his complaint, a process server personally served Douglas with a summons and a copy of the complaint. Dkt. 8. About two months later, the United States filed a notice as an amicus curiae informing El that, regardless of whether he was suing Douglas in his individual capacity or his official capacity, he had not properly served Douglas. Dkt. 6. El responded to that notice, explaining that, in his view, he properly served Douglas as “a private contractor that is employed by a IRS foreign company that not registered with the Secretary of State Texas.” Dkt. 7 at 1. He attached postal tracking receipts for mail sent to addresses in Beaumont and Flower Mound, Texas. Dkt. 7-1. But he did not explain what locations those addresses accompany, what items were included in those mailings, or who the intended recipients were. Id. Overall, he did not address the service concerns noted in the United States' amicus letter.

Several months later, Douglas moved to dismiss El's complaint for lack of subject-matter jurisdiction, improper service, and failure to state a claim upon which relief can be granted. Dkt. 10. El did not respond.

SERVICE STANDARD

Federal Rule of Civil Procedure 12(b)(5) authorizes defendants to move to dismiss for improper service of process. A district court has “broad discretion to dismiss an action for ineffective service of process.” Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 645 (5th Cir. 1994).

For service to be effective, a plaintiff must “hav[e] 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). Rule 4(m) provides that,

[i]f a defendant is not served 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 or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

“ ‘[G]ood cause’ under Rule 4(m) requires ‘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.’ ” Gartin v. Par Pharm. Cos., Inc., 289 F. App'x 688, 692 (5th Cir. 2008) (citing Lambert v. United States, 44 F.3d 296, 299 (5th Cir. 1999)). Courts typically require that the party seeking additional time for service provide a “showing of good faith” and “some reasonable basis for noncompliance within the time specified.” Coleman v. Carrington Mortg. Servs., LLC, No. 4:19-CV-00231-ALM-CAN, 2021 WL 1725523, at *2 (E.D. Tex. Apr. 12, 2021), report and recommendation adopted, 2021 WL 1721706, at *1 (E.D. Tex. Apr. 30, 2021).

“Pro se parties have received some leeway with regard to service deadlines and procedures.” Flander v. Kforce, Inc., 526 F. App'x 364, 368 (5th Cir. 2013) (citing Rochon v. Dawson for its conclusion that a faultless pro se litigant would not be penalized for mistakes made by the United States marshal during service, 828 F.2d 1107, 1109–10 (5th Cir. 1987)). But they are not excused from the requirements of Rule 4. See Sys. Sign Supplies v. DOJ, 903 F.2d 1011, 1013 (5th Cir. 1990). A court may dismiss a pro se plaintiff's case “when the plaintiff's own carelessness contributed to the failure of service” and “the plaintiff cannot show good cause for failure to meet deadlines for service.” Flander, 526 F. App'x at 368.

DISCUSSION

Douglas argues that he is entitled to dismissal because El failed to properly serve him. Dkt. 10 at 5–7. He is correct about that, so the court does not reach his other arguments.

Although El claims that Douglas is a private contractor, see Dkt. 1 at 1, Douglas has explained that he is a federal employee, see Dkt. 10 at 1; see id. at 5–7, as the United States' amicus letter implied, Dkt. 6. El's failure to respond to Douglas's motion “create[d] a presumption that [El] does not controvert the fact” that Douglas is a federal employee, Loc. R. CV-7(d), and it appears to the court that Douglas is, in fact, a federal employee.

A party who sues a federal employee in his official capacity “must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.” Fed. R. Civ. P. 4(i)(2). To sue a federal employee in his individual capacity “for an act or omission occurring in connection with duties performed on the United States' behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the ․ employee under Rule 4(e), (f), or (g).” Id. R. 4(i)(3).

To serve the United States, El was required to

(A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought—or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk—or

(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office;

(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and

(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.

Id. R. 4(i)(1).

Douglas does not dispute that El personally served him; he argues that El failed to serve the United States. Dkt. 10 at 7. Specifically, he argues that El failed to serve the United States Attorney for the Eastern District of Texas, the United States Attorney General, the United States, or the United States Attorney's Office. Id. And to the extent El intended to sue Douglas in his individual capacity only, his allegations arise from collection activities that Douglas undertook in his capacity as a revenue officer. See Dkt. 1. El does not allege that Douglas was operating beyond the scope of his employment, such that his actions would fall outside of his duties as a federal employee. See Fed. R. Civ. P. 4(i)(3). “The plaintiff bears the burden of proof regarding sufficiency of service of process,” United States ex rel. Proctor v. Next Health LLC, No. 4:17-CV-00169-ALM-KPJ, 2022 WL 17731825, at *1 (E.D. Tex. Oct. 21, 2022), report and recommendation adopted, 2023 WL 123788, at *1 (E.D. Tex. Jan. 6, 2023), and El has not met that burden.

The only remaining question is whether El has demonstrated good cause to permit additional time to properly serve Douglas. He has not. Both the United States and Douglas informed El two times that service was deficient. Dkts. 6, 10. El did not respond to either filing with an explanation of why he failed to effect service or ask for additional time to do so. See Dkt. 7. Nor has he attempted to demonstrate good cause to extend his time for service, see Flander, 526 F. App'x at 368, or, as noted, responded to Douglas's motion to dismiss. As such, El's case should be dismissed without prejudice. See Fed. R. Civ. P. 4(m).

RECOMMENDATION

It is RECOMMENDED that Douglas's motion to dismiss, Dkt. 10, be GRANTED and that El's complaint, Dkt. 1, be DISMISSED WITHOUT PREJUDICE.

* * *

Within 14 days after service of this report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1).

A party is entitled to a de novo review by the district court of the findings and conclusions contained in this report only if specific objections are made. Id. § 636(b)(1). Failure to timely file written objections to any proposed findings, conclusions, and recommendations contained in this report will bar an aggrieved party from appellate review of those factual findings and legal conclusions accepted by the district court, except on grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. Id.; Thomas v. Arn, 474 U.S. 140, 155 (1985); Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from 10 to 14 days).

So ORDERED and SIGNED this 27 th day of May, 2026

Bill Davis United States Magistrate Judge