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Daniel P. Bjorlin v. Saro

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


February 10, 2011

DANIEL P. BJORLIN, PLAINTIFF,
v.
SARO, DEFENDANT.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's "Motion: Notice to Show Cause" (Doc. 34).

On October 21, 2009, the court found that service of the complaint was appropriate for the only named defendant -- Saro -- and directed plaintiff to submit the documents necessary for service of the action by the United States Marshal. Plaintiff submitted documents on November 2, 2009, and the United States Marshal was directed to attempt service of the action. On January 29, 2010, the summons was returned unexecuted because Saro could no longer be located at the address provided by plaintiff. On April 22, 2010, the court informed plaintiff that, if he wished to proceed against defendant Saro, he would be required to provide information sufficient for service by the United States Marshal. On May 5, 2010, plaintiff again submitted service documents. These documents, however, contained the same contact information for defendant Saro as the original service documents submitted by plaintiff and were, therefore, inadequate to complete service of process. The court so advised plaintiff on June 16, 2010, and again directed plaintiff to provide valid contact information for defendant Saro. On July 13, 2010, the court granted plaintiff's motion for a 60-day extension of time to comply.

Plaintiff again submitted service documents on August 4, 2010. These documents, however, continue to be inadequate to serve defendant Saro. Recognizing this problem, plaintiff filed the currently pending "Motion: Notice to Show Cause" in which plaintiff states that he has been unable to locate defendant Saro despite requests made to state officials for further information. Plaintiff asks for either: (1) court intervention in obtaining contact information for Saro; or (2) leave to amend the complaint "to include the defendants whose whereabouts are still known."

Plaintiff is advised that the court is unable to provide any further assistance regarding the location of Saro at this time. Had at least one other defendant been named and served, the court could have permitted limited discovery as to Saro's location. Plaintiff has not, however, named any additional defendants in the amended complaint such that this would be possible. The court will, however, grant plaintiff's request for leave to amend the complaint to name other or additional defendants. Plaintiff is cautioned that failure to file an amended complaint may result in dismissal of this action under Federal Rule of Civil Procedure 4(m) for failure to effect timely service on defendant Saro.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's "Motion: Notice to Show Cause" (Doc. 34) is granted insofar as plaintiff is granted leave to file an amended complaint; and

2. Plaintiff may file an amended complaint within 30 days of the date of this order.

20110210

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