United States District Court, S.D. Mississippi, Southern Division
CHARLIE E. FINKLEY PLAINTIFF
DAVID J. SHULKIN, SECRETARY OF THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS DEFENDANT
ORDER GRANTING DEFENDANT'S MOTION TO
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE
THE COURT is the Motion to Dismiss  for failure to timely
and adequately serve process that was filed by the defendant,
David J. Shulkin, Secretary of the United States Department
of Veterans Affairs. The pro se plaintiff Charlie E. Finkley
did not file a response in opposition to the Motion. After
reviewing the Motion, the record in this matter, and the
applicable law, the Court finds that the Motion to Dismiss
should be granted.
claims that his former employer, the Department of Veterans
Affairs, discriminated against him on the basis of his race.
The Department of Veterans Affairs issued its final agency
decision on May 4, 2016. (Final Agency Decision, ECF No. 4).
Finkley appealed the final agency decision to the EEOC on May
24, 2016. (EEOC Receipt of Appeal, ECF No. 1-2). The Court
has not located any EEOC final decision on appeal in the
record. Finkley filed this employment discrimination lawsuit
against the Secretary of Veterans Affairs on August 9, 2016.
(Compl., ECF No. 1). Finkley has filed proofs of service [14,
15], claiming that he served the United States Attorney's
Office and the United States Attorney General via certified
mail. The defendant seeks dismissal for failure to timely and
adequately serve process.
defendant argues that service of process is deficient,
because Finkley acted as the process server when he served
the summonses via certified mail. The defendant further seeks
dismissal without prejudice pursuant to Fed.R.Civ.P. 4(m)
because the deadline for serving process has expired.
Civ. P. 4(c)(2) provides that “[a]ny person who is at
least 18 years old and not a party may serve a
summons and complaint.” (emphasis added) The Fifth
Circuit has noted that there is “no mailing exception
to the nonparty requirement for service.” Shabazz
v. City of Houston, 515 F.App'x 263, 264 (5th Cir.
2013) (quoting Constien v. United States, 628 F.3d
1207, 1213-14 (10th Cir. 2010)). Therefore, Rule
4(c)(2)'s prohibition of service by parties to a lawsuit
applies even where the defendant is served via certified
mail. Fed.R.Civ.P. 4(m) provides:
If 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.
deadline for serving process in this matter has expired.
Finkley has not responded to the defendant's Motion, and
he has not asked for an extension of time to correct the
deficient service of process. Therefore, the Court finds that
the defendant's Motion to Dismiss should be granted, and
this lawsuit should be dismissed without prejudice.
Court also notes that a review of the record in this matter
indicates that Finkley may have failed to exhaust his
administrative remedies before filing this lawsuit.
See 42 U.S.C. § 2000e-16(c) (providing that an
employment discrimination lawsuit must be filed after 180
days from the date of filing an appeal with the EEOC if there
has been no final decision by the Commission). While there is
evidence in the record that Finkley appealed the Final Agency
Decision to the EEOC, there is no evidence of an EEOC final
decision on appeal. Once a claimant chooses “to
continue along the administrative relief path by requesting
reconsideration by the EEOC” he is required to wait
until either the EEOC issues its final decision on appeal or
the passage of 180 days from the date of the appeal before
filing a lawsuit in federal court. Tolbert v. United
States, 916 F.2d 245, 248 (5th Cir. 1990); Fobbs v.
Potter, 338 F.App'x 359, 361 (5th Cir. 2009).
Failure to exhaust administrative remedies requires dismissal
of the complaint. Id.
foregoing reasons, the Court finds that the defendant's
Motion to Dismiss should be granted.
THEREFORE, ORDERED AND ADJUDGED that the Motion to Dismiss
 for failure to timely and adequately serve process that
was filed by the defendant is GRANTED. This lawsuit is hereby
DISMISSED WITHOUT PREJUDICE.
FURTHER, ORDERED AND ADJUDGED that the Clerk of Court is
directed to substitute David J. Shulkin as the defendant in