     Case: 16-60600      Document: 00514427898         Page: 1    Date Filed: 04/12/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                    No. 16-60600                             April 12, 2018
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
JUAN CARLOS CACERES-MEJIA,

                                                 Plaintiff-Appellant

v.

J. WATSON, Food Service Supervisor of Trinity Service Group (Adams
Correctional Center),

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 5:16-CV-3


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Juan Carlos Caceres-Mejia, formerly federal
prisoner # 69134-379, filed a pro se civil complaint in January 2016 in which
he named J. Watson, the food service manager for Trinity Services Group
(TSG) at the Adams County Correctional Center, as the only defendant.
Caceres-Mejia paid the $400 filing fee.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 16-60600

      The magistrate judge (MJ), after warning Caceres-Mejia that his case
could be dismissed if he failed to timely serve the defendant and file proof of
service, as required by Federal Rule of Civil Procedure 4, recommended that
the action be dismissed without prejudice for failure to comply with court
orders or timely serve process. Caceres-Mejia objected to the MJ’s report,
asserting that he had served Watson by mail at an address in Florida. On
August 17, 2016, the district court adopted the MJ’s report and dismissed
Caceres-Mejia’s civil action without prejudice. The district court considered
Caceres-Mejia’s objection, but determined that he had not complied with
Federal Rule of Civil Procedure 4.
      On appeal, Caceres-Mejia contends that he properly served Watson via
mail. He notes that he filed proof-of-service forms in the district court.
      A district court may dismiss an action sua sponte for failure to prosecute
or to comply with any court order. See McCullough v. Lynaugh, 835 F.2d 1126,
1127 (5th Cir. 1988). Federal Rule of Civil Procedure 4(m) provides that, “if a
defendant is not served within 120 days after the complaint is filed, the court
. . . must dismiss the action without prejudice to the defendant or order that
service be made within a specified time.” A plaintiff’s failure to comply with
the time requirement of Rule 4(m) “authorizes a district court to dismiss an
action without prejudice, except upon a showing of good cause.” Lozano v.
Bosdet, 693 F.3d 485, 487 (5th Cir. 2012).
      We review dismissals under Rule 4(m) and Rule 41(b) for abuse of
discretion.   See Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir. 2014);
Thrasher v. City of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013). “Generally, an
abuse of discretion only occurs where no reasonable person could take the view
adopted by the trial court. If reasonable persons could differ, no abuse of




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                                  No. 16-60600

discretion can be found.” Dawson v. United States, 68 F.3d 886, 896 (5th Cir.
1995) (quotation and citation omitted).
      Service by mail is not expressly permitted by Federal Rule of Civil
Procedure 4; however, an individual may be served by “following state law for
serving a summons in an action brought in courts of general jurisdiction in the
state where the district court is located or where service is made.” FED. R. CIV.
P. 4(e)(1).   Mississippi procedural law permits service of a summons and
complaint by mail. See MISS. R. CIV. P. 4(c)(3), (5).
      Caceres-Mejia has not followed state law for service of summons. He has
not filed the requisite proof to establish that Watson acknowledged service of
process. See MISS. R. CIV. P. 4(c)(3)(B), (f). The record also shows that Caceres-
Mejia failed to use the “restricted delivery” option as specified by the
Mississippi rules for serving a defendant outside the state by certified mail.
See MISS. R. CIV. P. 4(c)(5).
      Caceras-Mejia cannot demonstrate that the district court abused its
discretion in dismissing his action without prejudice. See Thrasher, 709 F.3d
at 511; Dawson, 68 F.3d at 896. We therefore AFFIRM the judgment of the
district court.




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