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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02342-WJM-KLM

FRANKIE L. MCCONNELL,

Plaintiff,

v.

ANDREA CIRBO, Supervisor,

DEBRA REILLY, and

K. O’BRIEN (actually named as KO’Brien),

Defendants.

_____________________________________________________________________

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

_____________________________________________________________________

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court pursuant to the Order to Show Cause [Docket No.

20] issued December 15, 2011. In the Order to Show Cause, the Court directed Plaintiff

to show cause, in a writing filed with the Court, as to why his claims against Defendant K.

O’Brien should not be dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m) & 41(b).

[#20] at 2. Plaintiff was directed to: (1) file proof of service on Defendant K. O’Brien, (2)

respond in writing with an explanation of good cause for his failure to properly serve

Defendant K. O’Brien, or (3) provide a current address for Defendant K. O’Brien so as to

allow the United States Marshal to effect service. Id. Plaintiff’s deadline for compliance

with the Order to Show Cause was January 16, 2012. To date, Plaintiff has neither filed

a response nor requested an extension of time in which to do so.

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Plaintiff filed this civil action on September 6, 2011 [#1]. The Amended Complaint

[#9] was filed on November 15, 2011. On November 22, 2011, the United States Marshal

was directed to serve a copy of the Summons and Amended Complaint on all Defendants

in the above-captioned matter [#14]. On December 5, 2011, the Summons was returned

unexecuted for Defendant K. O’Brien with a notation that he no longer worked for the

Denver County Jail, that he was no longer in the State of Colorado, and that no further

information was obtained as to his whereabouts [#18]. 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-cv-00571-LTB-CBS,

2008 WL 2020289, at *6 (D. Colo. May 9, 2008) (unpublished decision). Plaintiff has not

provided any other information that the Court can use to effect service on Defendant K.

O’Brien, and, as stated, he did not respond to the Court’s Order to Show Cause. At this

stage, it is clear that Plaintiff cannot provide the necessary information to effect service on

Defendant K. O’Brien.

Plaintiff was warned in advance that the penalty for the inability to serve or for failing

to provide good cause for the service delay would be dismissal of the case against the

unserved Defendant. [#20] at 2. Accordingly, 

IT IS HEREBY ORDERED that the Order to Show Cause [#20] is made

ABSOLUTE. 

The Court respectfully RECOMMENDS that Defendant K. O’Brien be DISMISSED

WITHOUT PREJUDICE as a party from this action, pursuant to Fed. R. Civ. P. 4(m).

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IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall

have fourteen (14) days after service of this Recommendation to serve and file any written

objections in order to obtain reconsideration by the District Judge to whom this case is

assigned. A party's failure to serve and file specific, written objections waives de novo

review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,

474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal

questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.

Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this

Recommendation must be both timely and specific to preserve an issue for de novo review

by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73

F.3d 1057, 1060 (10th Cir. 1996).

Dated: January 25, 2012 

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