Parthemore v. Toor et.al.

Filing 28

ORDER Adopting Findings and Recommendation to Dismiss Action with Prejudice for Failure to State a Claim, signed by District Judge Anthony W. Ishii on 4/27/15. Dismissal Counts as a Strike pursuant to 28 USC 1915(g). CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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IRA D. PARTHEMORE,

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Plaintiff,
v.
KIRAN DEEP SINGH TOOR, et al.,
Defendants.

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CASE NO. 1:14-cv-00307-AWI-MJS (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATION TO DISMISS
ACTION WITH PREJUDICE FOR
FAILURE TO STATE A CLAIM
(ECF No. 24)
DISMISSAL COUNTS AS A STRIKE
PURSUANT TO 28 U.S.C. § 1915(g)

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CLERK TO TERMINATE ALL PENDING
MOTIONS AND CLOSE CASE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United
States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the
United States District Court for the Eastern District of California.
On December 31, 2014, the Magistrate Judge issued findings and a
recommendation to dismiss the action with prejudice for failure to state a claim. (ECF
No. 24.) Plaintiff filed objections.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has
conducted a de novo review of this case. Having carefully reviewed the entire file, the

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Court finds the findings and recommendation to be supported by the record and by

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proper analysis. Plaintiff contends that Defendants Toor and Malakkla were deliberately

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indifferent to his arthritis pain when they discontinued his prescription for Celebrex and

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provided him ineffective medication. However, Plaintiff has failed to allege facts

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suggesting deliberate indifference on the part of Defendant Toor in light of Toor’s

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submission of a Nonformulary Drug Request for Celebrex on Plaintiff’s behalf. As with

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his prior pleadings, Plaintiff fails to provide details regarding his appeals to Defendant

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Malakkla that would suggest Malakkla was deliberately indifferent to Plaintiff’s serious

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medical needs. Accordingly, Plaintiff’s objections do not raise an issue of fact or law

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under the findings and recommendations.

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Accordingly, it is HEREBY ORDERED that:

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1.

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The Court adopts the findings and recommendation, filed December 31,
2014 (ECF No. 24), in full;

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The action is DISMISSED with prejudice for failure to state a claim and

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dismissal shall count as a strike pursuant to the “three strikes” provision set

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forth in 28 U.S.C. § 1915(g); and

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3.

The Clerk of the Court shall terminate all pending motions and close the
case.

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IT IS SO ORDERED.
Dated: April 27, 2015
SENIOR DISTRICT JUDGE

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