Cary v. Hickenlooper et al

Filing 56

ORDER that the Order to Show Cause 50 is DISCHARGED. IT IS FURTHER ORDERED that the United States Marshal shall make one final attempt to serve Defendant Lindsey Fish DePena at CDOC. by Magistrate Judge Kristen L. Mix on 10/25/2013. (trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02072-RM-KLM
ARNOLD A. CARY,
Plaintiff,
v.
DAVIS TESSIER, CTCF Health Services Administrator,
SUSAN M. TIONA, M.D., CTCF, Health Services Physician and Fremont County
Commissioner,
JOHN V. BUGLEWICZ, M.D., CTCF, Health Services Physician and Fremont County
Commissioner,
LINSEY FISH DEPENA, M.D., CTCF, former Health Services Physician,
RODNEY ACHEN, CTCF, Food Services Captain,
RONALD WILLIAMS, CTCF, Lieutenant,
CHRISTINA TURNER, CTCF Sergeant, and
ROBERT BURNS, CTCF, Correctional Officer,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Order to Show Cause [#50] issued on
September 16, 2013. At that time, it had come to the Court’s attention that Defendant
Lindsey Fish DePena, M.D., was not served with the Summons and Amended Complaint
in this action and, therefore, is not currently a proper party. Plaintiff filed this civil action on
August 6, 2012 [#1]. The Amended Complaint was filed on January 23, 2013 [#25]. On
March 22, 2013, the United States Marshal was directed to serve a copy of the Summons
and Amended Complaint on all Defendants in the above-captioned matter. [#24]. On
March 28, 2013, the Summons was returned unexecuted for Defendant Lindsey Fish
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DePena with a notation that she was no longer a CDOC employee. [#27]. No forwarding
address was provided. While Fed. R. Civ. P. 4(c) requires that the Court effect service of
the Summons and Amended Complaint for plaintiffs proceeding in forma pauperis, Plaintiff
must provide sufficient information for the Court to do so. See Hill v. Ortiz, No. 07-cv00571-LTB-CBS, 2008 WL 2020289, at *6 (D. Colo. May 9, 2008).
On October 22, 2013, Plaintiff responded to the Order to Show Cause. He provided
evidence that a fellow inmate came into contact with Defendant Lindsey Fish DePena some
time between August 14, 2013 and October 1, 2013, at the Denver Reception and
Diagnostic Center, which is part of CDOC. See Response [#54] at 2; Decl. of Richard
Steward [#55]. In light of this evidence,
IT IS HEREBY ORDERED that the Order to Show Cause [#50] is DISCHARGED.
IT IS FURTHER ORDERED that the United States Marshal shall make one final
attempt to serve Defendant Lindsey Fish DePena at CDOC. If the United States Marshal
is again unable to serve her as an employee of CDOC based on the information provided
by Plaintiff, the Court shall issue a recommendation that she be dismissed for failure to
serve.

Dated: October 25, 2013

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