Opinion
CAUSE NO. 3:05-CV-0108 AS.
September 13, 2005
OPINION AND ORDER
Larry Veazey filed this pro se action pursuant to 42 U.S.C. § 1983 against numerous Indiana Department of Correction ("IDOC") employees. All defendants have been either dismissed or properly served except for M. Johnson, a former Westville Correctional Facility ("WCF") employee. Initially, service failed on Mr. Johnson because he was no longer employed at the WCF. Pursuant to Sellers v. United States, 902 F.2d 598, 602 (7th Cir. 1990), and Graham v. Satkoski, 51 F.3d 710 (7th Cir. 1995), the United States Marshal for the Northern District of Indiana attempted to obtain Mr. Johnson's current address and serve him with process.
The Marshals Service obtained a forwarding address for Mr. Johnson from WCF officials, but was unable to serve him because he no longer lived there. On July 25, 2005, this court entered an order to show cause directed at Mr. Veazey to show cause why Mr. Johnson should not be dismissed. Mr. Veazey filed no response to the order to show cause.
The Marshals Service has now made a reasonable, but ultimately unsuccessful, effort to obtain an address for serving process on Mr. Johnson, as required by Sellers v. United States and Graham v. Satkoski. Since more than 120 days have passed since the initial failure of service on defendant Johnson, he is subject to dismissal without prejudice pursuant to Fed.R.Civ.P. 4(m). If Mr. Veazey is later able to locate Mr. Johnson, he may replead him into this action.
For the foregoing reasons, the court DISMISSES defendant M. Johnson from this action without prejudice pursuant to Fed.R.Civ.P. 4(m). This action remains before the court on the properly served defendants.
IT IS SO ORDERED.