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Hamilton v. Brown
March 19, 2009
DAMON ALAN HAMILTON, PLAINTIFF,
BROWN, RN, DEFENDANT.
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights action.
On July 3, 2008, the court ordered the United States Marshal to serve plaintiff's complaint on defendant Brown. However, the Marshal was unable to effect service on defendant Brown based on the information plaintiff provided to the court. On October 16, 2008, the court advised plaintiff that if he wished to proceed with his claims against defendant Brown, he would be required to provide additional information to the court that would enable the United States Marshal to serve this defendant. The court instructed plaintiff to promptly seek such information through any means available to him and cautioned plaintiff that when service of a complaint is not made upon a defendant within 120 days after the complaint was filed, the court may be required to dismiss the plaintiff's claims against that defendant. See Fed. R. Civ. P. 4(m). The court also ordered plaintiff to submit within thirty days the documents necessary to effect service on defendant Brown. On November 25, 2008, plaintiff submitted the necessary service documents. However, once again, based on the information plaintiff provided to the court the Marshal was unable to effect service on defendant Brown.
Under the circumstances of this case, the undersigned finds that plaintiff cannot show good cause for the failure to effect service on defendant Brown. Although plaintiff has had more than sufficient time to provide the court with the additional information necessary to enable the United States Marshal to serve this defendant, on two separate occasions plaintiff has failed to provide the court with a current address for the defendant. Accordingly, the court concludes that defendant Brown should be dismissed from this action. See Fed. R. Civ. P. 4(m). In addition, since defendant Brown is the only defendant in this case, the court will recommend that this action be dismissed without prejudice.
For the reasons discussed above, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 4(m) and 41(b).
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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