Rael v. Boyd et al

Filing 39

ORDER denying 29 Motion for Service and Summons, and Order to Show Cause why Complaint should not be dismissed. Show Cause Response due by 2/25/2013. by Magistrate Judge Boyd N. Boland on 1/28/13.(bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 12-cv-02093-WYD-BNB
IGNACIO RAY RAEL
Plaintiff,
v.
MCLAUGHLIN (Officer),
SHAWN MURPHY (Case Manager),
LLOYD (Nurse Practitioner),
KATHLEEN BOYD (Nurse),
MIKE AURITI (Officer),
JACOPS (Officer),
MARQUEZ (Sergeant),
MARTINEZ (Sergeant),
BRENDA GONZALES (Sergeant),
DEBORAH MOORE (Nurse), and
L. PAYNE (Case Manager),
Defendants.
______________________________________________________________________________
ORDER TO SHOW CAUSE
______________________________________________________________________________
This matter arises on the plaintiff’s Motion for Service and Summons [Doc. #29, filed
12/17/2012] (the “Motion”). The Motion is DENIED, and the plaintiff is directed to SHOW
CAUSE why this action should not be dismissed as to defendant McLaughlin.
The plaintiff is currently incarcerated by the Colorado Department of Corrections
(“DOC”) at the Limon Correctional Facility (“LCF”). He filed his Second Amended Prisoner
Complaint on October 1, 2012 [Doc. #16] (the “Complaint”). The Complaint states that
defendant McLaughlin “was (is) a employee for the Colorado Department of Corrections.”
Complaint, p. 3, ¶ 2.

On October 3, 2012, forms for service of process on the defendants were sent to the DOC
Office of Legal Affairs [Doc. #19]. On October 9, 2012, the Office of Legal Affairs filed an
Amended Waiver of Service of Summons [Doc. #22] acknowledging and waiving service for all
defendants except McLaughlin. Service on McLaughlin was not waived because he is no longer
a DOC employee. A forwarding address was provided for McLaughlin.
On October 10, 2012, a form for service of process was sent to the United States Marshal
for service of process on McLaughlin at the forwarding address provided by the DOC [Doc.
#23]. On November 6, 2012, the Marshal filed a Process Receipt and Return [Doc. #25] which
shows that McLaughlin was not served. The Return states “Unable to locate, address is vacant,
no forwarding address.”
In his Motion, the plaintiff requests that the court “issue an immediate order for service
and summons of the plaintiff’s complaint to defendant McLaughlin, and issue a [sic] order for
direct response of said summons and complaint.” He states that he “is entitled to rely on U.S.
Marshall [sic] for service of summons and complaint and, having provided necessary
information to help effectiate [sic] service, plaintiff should not be penalized by having any action
dismissed for failer [sic] to effect service where Marshall [sic] or court clerk has failed to
perform duties required of each of them.” Contrary to the plaintiff’s assertions, he is responsible
for providing the court with the proper addresses for the defendants. The Clerk of the Court and
the United States Marshal are not responsible for obtaining addresses for service.
IT IS ORDERED:
1. The Motion for Service and Summons [Doc. #29] is DENIED; and

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2. The plaintiff shall show cause, if any there be, in writing and on or before February
25, 2013, why the Complaint should not be dismissed as against defendant McLaughlin for
failure to prosecute. See D.C.COLO.LCivR 41.1. In the event that no such showing is made, I
will recommend that the action be dismissed, without prejudice, against defendant McLaughlin
for failure to prosecute.
Dated January 28, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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