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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SOL GARCIA,

Plaintiff, No. CIV S-04-1927 FCD GGH P

vs.

K. PROSPER, et al.,

Defendants. FINDINGS & RECOMMENDATIONS

 /

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

42 U.S.C. § 1983. For the following reasons, the court recommends that this action be

dismissed.

On July 18, 2005, the court ordered the U.S. Marshal to serve process on

defendant Pompey. Plaintiff’s completed USM-285 form stated that defendant Pompey was

located at Susanville State Penitentiary. 

On October 20, 2005, service was returned unexecuted. The returned USM-285

form stated that the U.S. Marshal was informed that defendant was now employed at the

California Institution for Women (CIW). Accordingly, the U.S. Marshal forwarded the forms for

service to CIW. Prison officials at CIW returned the forms to the U.S. Marshal stating that

defendant was no longer employed there. The U.S. Marshal then asked the CDC Locator to

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search their records for defendant’s location. The CDC Locator informed the U.S. Marshal that

it could not locate defendant Pompey.

On December 7, 2005, the court granted plaintiff sixty days to provide additional

information for service of defendant Pompey. On January 25, 2006, plaintiff submitted a new

USM-285 form which again identified defendant as being located at Susanville State Prison. On

February 16, 2006, the court again ordered the U.S. Marshal to serve defendant Pompey. On

March 31, 2006, service was again returned unexecuted.

On March 3, 2006, the court ordered plaintiff to show cause within twenty days

why this action should not be dismissed because defendant Pompey cannot be served. On May

19, 2006, plaintiff filed a response to the show cause order. Plaintiff requests that the court

subpoena records from CDC Locator regarding defendant Pompey. Plaintiff suggests that he

may use these records to locate defendant Pompey’s home address.

The court is not authorized to order the CDC to disclose defendant Pompey’s

home address under these circumstances. The U.S. Marshal has made a good faith effort to

locate defendant Pompey based on the information provided by plaintiff. Despite these efforts,

defendant Pompey cannot be located. Because defendant Pompey cannot be served, the court

recommends that this action be dismissed. 

Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed

without prejudice. 

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, plaintiff may file written

objections with the court. The document should be captioned “Objections to Magistrate Judge’s

/////

/////

/////

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

F.2d 1153 (9th Cir. 1991).

DATED: 6/28/06

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

gar1927.dis

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