Ricker v. California Department of Corrections Medical Department et al

Filing 33

ORDER ADOPTING 28 FINDINGS AND RECOMMENDATIONS, Dismissing Defendants Alaape and Tellorbes signed by District Judge Lawrence J. O'Neill on 08/05/2011. (Flores, E)

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1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 PHILLIP T. RICKER, CASE NO. 1:09-cv-01433-LJO-GBC (PC) 6 Plaintiff, 7 8 9 10 11 12 ORDER ADOPTING FINDINGS AND RECOMMENDATION DISMISSING DEFENDANTS ALAAPE AND TELLORBES CA L I FORNIA DEPARTME NT O F FROM ACTION CORRECTIONS MEDICAL DEPARTMENT, et al., (ECF No. 28) Defendants. / v. 13 ORDER 14 15 Plaintiff Phillip T. Ricker (“Plaintiff”), an inmate in the custody of the California 16 Department of Corrections and Rehabilitation (“CDCR”), is proceeding pro se and in forma 17 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 18 19 This action proceeds on Plaintiff’s Complaint, filed August 14, 2009, against Defendants LVN Tellorbes, Sgt. Anderson, RN Hicks, La Vinn, LVN E. Lopez, C/O Stinger, 20 LVN Alaape, and C/O Lambert for deliberate indifference to Plaintiff’s medical needs in 21 22 violation of the Eighth Amendment. (ECF No. 1.) Because Plaintiff is proceeding in forma 23 pauperis, the Court appointed the United States Marshal to serve each Defendant with a 24 summons and Complaint. Fed. R. Civ. Pro. 4(c)(2). The summonses for Defendants 25 Tellorbes and Alaape were returned to the Court unexecuted. (ECF No. 23.) The Court 26 then ordered that Plaintiff provide additional information to assist the Marshal in 27 1 1 effectuating service. (ECF No. 25.) Plaintiff failed to respond to the Order. Thus, the 2 Magistrate Judge recommended dismissal of Defendants Tellorbes and Alaape from the 3 action. (ECF No. 28.) No objections to the Findings and Recommendation were filed. 4 The matter was referred to a United State Magistrate Judge pursuant to 28 U.S.C. 5 6 § 636(b)(1)(B) and Local Rule 302. On June 6, 2011, the Magistrate Judge filed a Findings 7 and Recommendation recommending that Defendants Tellorbes and Alaape be dismissed 8 from the action for failure to serve. (ECF No. 28.) The Magistrate Judge found that 9 Plaintiff had failed to fulfill his burden of providing the Marshal’s service with sufficient 10 information to serve a defendant. (Id.) 11 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has 12 13 conducted a de novo review of this case. Having carefully reviewed the entire file, the 14 Court finds the Findings and Recommendation to be supported by the record and by 15 proper analysis. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The Findings and Recommendation, filed June 6, 2011, is ADOPTED; 2. Defendant Tellorbes is DISMISSED from the action; and 3. Defendant Alaape is DISMISSED from the action. 18 19 20 21 22 IT IS SO ORDERED. 23 Dated: b9ed48 24 August 5, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 25 26 27 2

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