(PC) Ricker v. California Department of Corrections Medical Department et al, No. 1:2009cv01433 - Document 28 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissal of Defendants Alaape and Tellorbes, referred to Judge O'Neill, signed by Magistrate Judge Gerald B. Cohn on 6/6/2011. Plaintiff's Objections Due by 7/11/2011. (Marrujo, C)

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(PC) Ricker v. California Department of Corrections Medical Department et al Doc. 28 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 PHILLIP T. RICKER, CASE NO. 1:09-cv-01433-LJO-GBC (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF DEFENDANTS ALAAPE AND TELLORBES 11 v. 12 13 CALIFORNIA DEPARTMENT OF CORRECTIONS MEDICAL DEPARTMENT, et al., PLAINTIFF’S OBJECTIONS DUE 7/11/2011 14 Defendants. 15 / 16 17 Plaintiff Phillip T. Ricker (“Plaintiff”) is a state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is 19 proceeding on Plaintiff’s Complaint, filed August 14, 2009, against Defendants LVN 20 Tellorbes, Sgt. Anderson, RN Hicks, La Vann, LVN E. Lopez, C/O Stinger, LVN Alaape, 21 and C/O Lambert for deliberate indifference to Plaintiff’s medical needs in violation of the 22 Eighth Amendment. (ECF No. 1.) Because Plaintiff is proceeding in forma pauperis, the 23 Court must appoint the United States Marshal to serve each Defendant with a summons 24 and complaint. Fed. R. Civ. Pro. 4(c)(2). 25 Plaintiff submitted completed USM-285 forms indicating that Defendants Alaape and 26 Tellorbes could be served at Corcoran State Prison. However, when service was 27 attempted at Corcoran, the forms were returned unexecuted with a notation that neither 28 Defendant was ever employed there nor could either be located by the “CDC locator 1 Dockets.Justia.com 1 database.” (ECF No. 23.) The Court ordered Plaintiff to provide additional information to 2 assist the Marshal in serving LVN Alaape and LVN Tellorbes and warned him that failure 3 to provide such information could result in dismissal of those Defendants. (ECF No. 25.) 4 Plaintiff was given until May 16, 2011 to provide such information. 5 To date, Plaintiff has not filed any such additional information regarding Defendants 6 Alaape and Tellorbes. As stated previously by the Court, Plaintiff bears the burden of 7 providing the Marshal’s service with sufficient information to serve a defendant. See 8 Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). 9 opportunity to do so in this case, and has failed to comply or otherwise respond to the 10 Court Order. 11 12 Plaintiff was given ample Accordingly, based on the foregoing, the Court HEREBY RECOMMENDS that Defendant Alaape and Defendant Tellorbes be dismissed from this action. 13 These Findings and Recommendation will be submitted to the United State District 14 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). 15 Within thirty (30) days after being served with these Findings and Recommendation, 16 Plaintiff may file written objections with the Court. The document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that 18 failure to file objections within the specified time may waive the right to appeal the District 19 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 IT IS SO ORDERED. 21 22 Dated: 1j0bbc June 6, 2011 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2

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