* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 14 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HAROLD FREDERICK KRUEGER,

Plaintiff-Appellant,

v. TIFFANY DOE, Female U.S. Marshal, JOHN DOE, JANE DOE, U.S. MARSHAL, United States Marshal Service, Defendants-Appellees. Nos. 98-6144, 98-6253 (D.C. CIV-97-83-C) (Western District of Oklahoma)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.2

Harold Frederick Krueger brings this pro se appeal challenging the district court’s orders dismissing his claims without prejud ice. Mr. Krueger also seeks review of the denial of his motion for leave to ame nd his complaint. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm. Background. Mr. Krueger brought an action pursuant to 28 U.S.C. §§ 1331, 1346, and 2674, against Tiffany Doe, U.S. Marshal, two unknow n U.S. Marshals, and the U.S. Marshal Service. Specifically, Mr. Krueger al leged that while transporting him to a federal hearing, the three U.S. Marshals w ho were assigned to guard him confiscated his legal file. Mr. Krueger further al leged that when he and his wife requested return of the file, the Marshal Service r efused to comply. On September 7, 1997, the Magistrate assigned to th e case ordered the U.S. Marshal Service either to provide information regar ding the identity of the unknown defendants to Mr. Krueger or to serve proce ss on those defendants itself. Complying with that order, the Marshal Service provided Mr. Krueger the full name and last known address of Tiffany Burton, whom Mr. Krueger had identified only as “Tiffany,” in his complaint. Th e Marshal Service was unable to identify either of the other two defendants. On Ja nuary 30, 1998, the Magistrate entered a Report and Recommendation to dismiss all claims except for the Bivens action against Ms. Burton. The District Court adop ted the Report and3

Recommendation in its entirety. Finally, on May 7, 1998, the Magistrate entered a Report and Recommendation to dismiss the remainin g claim against Ms. Burton for failure to serve process. The District Court a lso adopted this Report and Recommendation in its entirety.
1. Denial of Motion to Amend. We review the denial of Mr. Krueger’s motion to ame nd for abuse of discretion. Ramirez v. Oklahoma Dep’t of Mental He alth , 41 F.3d 584, 596 n.9 (10th Cir. 1994). Mr. Krueger sought to amend his claim to add the United States as a defendant. Jurisdiction to entertain claims f or damages against the United States is granted by 28 U.S.C. § 2674, part of the Federal Tort Claims Act (“FTCA”). However, section 2675(a) limits the juri sdiction to cases where “the claimant [has] first presented the claim to the app ropriate Federal agency and [had] his claim . . . finally denied by the agency in writing . . . .” This exhaustion requirement is jurisdictional and cannotbe waived. Nero v. Cherokee Nation of Oklahoma , 892 F.2d 1457, 1463 (10th Cir. 1989). The district court denied Mr. Krueger’s motion to a mend because he failed to present his complaint to the U.S. Marshal Servic e. He suggests that an effort to do so would have been futile in light of the age ncy’s prior refusal to cooperate with him. The perceived futility of the administrative remedy cannot cure the jurisdictional shortcoming of failure to pursue sai d remedy. See id.4

Thus we hold that district court did not abuse its discretion in denying Mr. Krueger’s motion to amend.
2. Dismissal of Ms. Burton for Failure to Serve Proces s. “We review the district court’s dismissal for untim ely service for an abuse of discretion.” Espinoza v. United States , 52 F.3d 838, 840 (10th Cir. 1995). Federal Rule of Civil Procedure 4(m) allows the dis trict court to dismiss an action without prejudice if the plaintiff to serve process within 120 days of filing the complaint. Rule 4(m) also provides that if the pla intiff shows good cause for failing to serve process, the court shall extend th e time for service appropriately. The district court found that Mr. Krueger failed to show good cause and dismissed the action. In doing so, it noted that an important consideration in deciding whether to extend the 120-day period is wh ether the statute of limitations would bar refiling of the action at a l ater date. The district court found that Mr. Krueger would pro bably be time-barred from filing a subsequent claim; this factor counsel s against dismissal. See Fed. R. Civ. P. 4(m) advisory committee’s note (“Relief may be justified . . . if the applicable statute of limitations would bar the ref iled action."). However, this factor alone is not determinative. See Despain v. Salt Lake Area Metro Gang Unit , 13 F.3d 1436, 1439 (10th Cir. 1994). The distric t court found that 470 days had passed since Mr. Krueger filed this suit, but M s. Burton had yet to be served.5

Much of this delay, however, cannot be held againstMr. Krueger. Upon filing his action, Mr. Krueger did not know Ms. Burton’s ident ity beyond her first name. Not until the U.S. Marshal Service complied with a court order to provide Mr. Krueger with further information did Mr. Krueger le arn Ms. Burton’s name or address. The Marshal Service gave this information to Mr. Krueger on October 13, 1997. Thus, Mr. Krueger is only responsible fo r failing to effect service for 206 of those 470 days. However, during that period , Mr. Krueger made no appreciable headway in discovering the Ms. Burton’s whereabouts; in 206 days the only additional information Mr. Krueger obtaine d about Ms. Burton was her middle initial. Mr. Krueger has failed to show goo d cause for failing to obtain additional information and for failing to effect se rvice over the 206-day period. Mr. Krueger suggests that the district court erred in not compelling the U.S. Marshal Service to conduct a full fugitive search t o locate Ms. Burton’s current address. We agree with the Magistrate that compell ing such a search against a non-fugitive would be “patently unreasonable . . . [and] necessarily violative of [Ms. Burton’s] privacy rights.” Rec. doc. 42, at 5

. 3. Dismissal of Two Unknown Defendants. The court dismissed Mr. Krueger’s action against th e two unknown defendants for failure to serve in a timely fashion . Dismissal against unknown defendants is proper “only when it appears that the true identity of the defendant6

cannot be learned through discovery or the court’s intervention.” Munz v. Parr , 758 F.2d 1254, 1257 (8th Cir. 1985). We find the d istrict court was within its discretion dismissing these claims. The court provided Mr. Krueger with substantial ass istance in his effort to identify the “Doe” defendants. The Magistrate orde red the Marshal Service “to make a concerted effort” to locate and provide info rmation that would prove helpful to Mr. Krueger in ascertaining the “Doe” de fendants’ identities and locations. See rec. doc. 27, at 3. The Marshal Service was unabl e to identify the defendants based on the information provided by Mr. Krueger. Although the magistrate’s efforts did not result in Mr. Krueger identifying the remaining defendants, the court was not require d to provide any further assistance. Nor was it required to forestall dismi ssal of the unknown defendants any longer. For over a year the Plaintiff, with th e assistance of his wife, had failed to identify the unknown defendants through f urther discovery. Identification and eventual service of the these in dividuals did not appear a real possibility.

Entered for the Court,

Robert H. Henry Circuit Judge