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Ortega v. Housley

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 2, 2010

ANGEL ORTEGA, PLAINTIFF,
v.
DR. HOUSLEY, DEFENDANT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff is a prisoner who is proceeding without counsel and in forma pauperis. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff has consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c); January 8, 2009 Consent.

On June 23, 2009, plaintiff filed an amended complaint in which he names only one defendant, Dr. Housley.

On September 30, 2009, the court ordered the United States Marshal to serve the complaint on defendant Housley. The Marshal was unable to effect service on defendant Housley because she is not employed at the Facility "A" Clinic in Ione. Attempts to locate this defendant through the California Department of Corrections and Rehabilitation ("CDCR") locator were unsuccessful on December 7, 2009, and January 28, 2010. It appears Dr. Housley is no longer employed by the CDCR.

By order filed April 28, 2010, plaintiff was given "one last" opportunity to serve defendant Housley. (Dkt. No. 19.) Plaintiff was cautioned that failure to timely serve a defendant may require dismissal of plaintiff's claims against such defendant. (Id.; Fed. R. Civ. P. 4(m).)

On May 27, 2010, plaintiff submitted service documents noting that all steps were made by plaintiff to locate Dr. Housley, and referencing the previous attempts to effect service by the Marshal. Plaintiff failed to provide a current address for Dr. Housley.

Plaintiff's amended complaint was filed June 23, 2009. More than 120 days have passed since the filing of the amended complaint, and plaintiff has failed to provide a current address for defendant Housley. Plaintiff has exhausted his efforts to locate this sole defendant. Thus, this action should be dismissed pursuant to Fed. R. Civ. 4(m).

Accordingly, IT IS HEREBY ORDERED that this action is dismissed without prejudice for plaintiff's failure to timely serve defendant Housley. Fed. R. Civ. P. 4(m).

20100602

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