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Bustillo v. Green

January 25, 2006

FERNANDO BUSTILLO, PLAINTIFF,
v.
LEE GREEN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Walker D. Miller

ORDER

By Order dated August 26, 2005, as amended by an Order dated August 29, 2005, I directed the U.S. Marshal to serve a subpoena on the U.S. Bureau of Prisons seeking information on the whereabouts of defendants B. Lanisch and M. Linen. On December 22, 2005, after receiving no response to the subpoena, I ordered the Bureau of Prisons to show cause why they should not be held in contempt for failing to respond.

I now have before me the Bureau's response to the order to show cause with an attached declaration from Benjamin J. Brieschke explaining the oversight. These documents also inform me that the Bureau of Prisons has provided contact information for defendant B. Lanich (Plaintiff apparently misspelled his last name Lanisch), to the U.S. Marshal's Service, but has been unable to locate contact information for defendant M. Linen.

Based on the complete history of this case, I find that the U.S. Marshals Service and the Bureau of Prisons have made reasonable- but unsuccessful- efforts to locate M. Linen and that good cause to extend the time for service under Fed. R. Civ. P. 4(m) does not exist. See Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995).

Accordingly, it is ordered:

1. Plaintiff's claims against defendant Linen are dismissed without prejudice, pursuant to Fed. R. Civ. P. 4(m), for failure to serve.

2. If appropriate, the United States Marshal shall attempt to obtain a waiver of service from defendant Lanich pursuant to Fed. R. Civ. P. 4(d).

3. If unable to obtain a waiver, the United States Marshal shall serve a copy of the complaint, summons, order granting leave to proceed pursuant to 28 U.S.C. § 1915, and all other orders upon defendant Lanich.

4. All costs of service shall be advanced by the United States.

DATED at Denver, Colorado, on January 25, 2006.

Walker D. Miller United States District Judge

20060125

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