The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER FOR PLAINTIFF TO SHOW CAUSE WHY DEFENDANT HAMILTON SHOULD NOT BE DISMISSED FOR FAILURE TO PROVIDE INFORMATION SUFFICIENT TO EFFECT SERVICE
Carlos Hendon ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on September 30, 2005. (Doc. 1.) This action now proceeds on Plaintiff's Second Amended Complaint filed on June 26, 2008, against defendants Baroya, Pham, Hamilton, Nguyet, Hoppe, Griffin, and Reidman for subjecting him to cruel and unusual punishment in violation of the Eighth Amendment. (Doc. 18.)
II. SERVICE BY UNITED STATES MARSHAL
On May 14, 2009, the court issued an order directing the United States Marshal to initiate service of process in this action upon defendants in this action. (Doc. 27.) All of the defendants were successfully served except defendants Hamilton and Hoppe.
On October 26, 2009, the Marshal filed a return of service unexecuted as to defendant Hoppe. (Doc. 38.) Based on the information set forth in the returned USM-285 forms, the Court cannot make a finding that Plaintiff has not provided sufficient information to locate this defendant. Therefore, by separate order, the Marshal shall be directed to initiate re-service upon defendant Hoppe by contacting the Legal Affairs Division of the California Department of Corrections and Rehabilitation for assistance.
On June 25, 2009, the Marshal filed a return of service unexecuted as to defendant Hamilton. (Doc. 29.)
[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good ...