Rivera v. Davey et al

Filing 53

ORDER ADOPTING 48 Findings and Recommendations Recommending Dismissal of Defendant Chapoleun Without Prejudice for Failure to Serve, signed by District Judge Anthony W. Ishii on 8/20/2020. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICKY RIVERA,

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Case No. 1:16-cv-01817-AWI-BAM (PC)
Plaintiff,

Defendants.

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(ECF No. 48)

v.

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS RECOMMENDING
DISMISSAL OF DEFENDANT CHAPOLEUN
WITHOUT PREJUDICE FOR FAILURE TO
SERVE

DAVEY, et al.,

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Plaintiff Ricky Rivera (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action under 42 U.S.C. § 1983. This action proceeds on Plaintiff’s

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second amended complaint against Defendants Robicheaux, Chapoleun, and Crain for violations

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of the Free Exercise Clause of the First Amendment and against Defendant Davey for a deficient

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policy that violates the Free Exercise Clause of the First Amendment. This matter was referred to

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a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On June 9, 2020, the assigned Magistrate Judge issued Findings and Recommendations

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recommending dismissal of Defendant Chapoleun1 from this action, without prejudice, for failure

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to serve process under Federal Rule of Civil Procedure 4(m). (ECF No. 48.) Those Findings and

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There is some ambiguity as to whether the correct spelling is “Chapoleun” or “Chapoleum.”
However, the Court finds that the error is not material, and for consistency the Court will use
“Defendant Chapoleun” throughout this order.
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Recommendations were served on Plaintiff and contained notice that any objections thereto were

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to be filed within fourteen (14) days after service. (Id. at 4.) Following an extension of time,

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Plaintiff timely filed objections on June 29, 2020. (ECF No. 51.)

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a

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de novo review of the case. Having carefully reviewed the entire file, including Plaintiff’s

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objections, the Court concludes that the Magistrate Judge’s Findings and Recommendations are

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supported by the record and by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations issued on June 9, 2020, (ECF No. 48), are adopted in
full;

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2. Defendant S.M.V. Chapoleun is dismissed, without prejudice;

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3. This action shall proceed only on Plaintiff’s second amended complaint against

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Defendants Robicheaux and Crain for violations of the Free Exercise Clause of the First

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Amendment, and against Defendant Davey for a deficient policy that violates the Free

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Exercise Clause of the First Amendment; and

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4. This action is referred back to the Magistrate Judge for further proceedings consistent with
this order.

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IT IS SO ORDERED.
Dated: August 20, 2020
SENIOR DISTRICT JUDGE

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