IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 23, 2009
No. 09-30049
Summary Calendar Charles R. Fulbruge III
Clerk
LINDA F WRIGHT,
Plaintiff–Appellant,
v.
JOHN E POTTER, Postmaster General, United States Postal Service,
Southwest Area,
Defendant–Appellee.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:07-CV-758
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Linda F. Wright requests permission to appeal in forma pauperis (IFP)
from the district court’s denial of a F ED. R. C IV. P. 59 motion challenging the
dismissal of her employment discrimination lawsuit for failure to perfect service.
The district court denied Wright leave to appeal IFP, but it did not certify that
the appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997); F ED. R. A PP. P. 24(a); 28 U.S.C. § 1915(a)(3). We may
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 09-30049
nevertheless dismiss the appeal sua sponte pursuant to 5th Cir. R. 42.2 if it is
apparent that the appeal lacks merit. Baugh, 117 F.3d at 202 n.24.
Our review of a dismissal for insufficient service of process is for abuse of
discretion. Lindsey v. United States R. R. Retirement Bd., 101 F.3d 444, 445 (5th
Cir. 1996). If service of the summons and complaint is not made upon a
defendant within 120 days after the filing of the complaint, the district court,
upon motion or on its own initiative after notice to the plaintiff, must dismiss the
action without prejudice as to that defendant or direct that service be effected
within a specified time. F ED. R. C IV. P. 4(m). The court “must extend the time
for service for an appropriate period” if the plaintiff shows good cause for the
failure. Id. In this case, the district court implicitly determined that Wright’s
conclusional assertions that she had perfected service and that the defendant
had submitted false information to the court did not establish “good cause” under
Rule 4(m). Even without a showing of good cause, we have held that a plaintiff
should be allowed additional time to perfect service under Rule 4(m) where the
claims would be otherwise time-barred and there is no clear record of delay or
evidence of contumacious conduct. See Millan v. USAA Gen. Indem. Co., 546
F.3d 321, 325-27 (5th Cir. 2008).
In this case, Wright has essentially abandoned her appeal by failing to
challenge the basis for the district court’s dismissal of the complaint. See
Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir. 2004). Because it appears that
Wright’s claims are now time-barred, we have nevertheless examined her
substantive arguments. See Millan, 546 F.3d 321. As we conclude that the
appeal lacks merit, the motion for leave to proceed IFP is denied, and the appeal
is dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; 5 TH C IR. R. 42.2.
IFP MOTION DENIED; APPEAL DISMISSED.
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