UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 13, 2013
DAVID DUMAS ,
BANGI, ET. AL,
The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER DIRECTING DEFENDANT BANGI TO FILE AN ANSWER OR OTHERWISE RESPOND FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S CLAIMS AGAINST DEFENDANTS ST. CLAIR, THOMATOS, AND FORSTER BE DISMISSED AND DEFENDANTS BE TERMINATED FROM THIS MATTER (Docs. 18 and 19).
Plaintiff David Dumas ("Plaintiff") is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983 and in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff filed his initial complaint on August 20, 2012. (Doc. 1). Plaintiff asserted claims against all named Defendants for alleged violations of the Eighth Amendment based on inadequate medical care. (Doc. 1).
On November 27, 2012, Defendants E. Bangi, Jack St. Clair, Thomatos, and Forster filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. 12). On March 26, 2013, the Court granted Defendants' motion to dismiss as to Defendants St. Clair, Thomatos, and Forster only. (Doc. 18 at 8). Plaintiff was given leave to amend the complaint or notify the Court that he wished to proceed on his claim against Defendant Bangi within 21 days of service of the March 26, 2013, order.
Id. Plaintiff timely elected in writing to proceed on his claim against Defendant Bangi only. (Doc. 2 19). 3
Within 14 days of the date of service of this order, Defendant Banji is ORDERED to file his 5 responsive pleading. 6
FINDINGS AND RECOMMENDATIONS
As Plaintiff has notified the Court in writing that he wishes to proceed on his claim against Defendant Bangi, the Court RECOMMENDS that: 9
1. Plaintiff's Eighth Amendment claim of inadequate medical careagainst Defendant Forster be DISMISSED without prejudice for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6);
2. Plaintiff's Eighth Amendment claim of inadequate medical care against Defendant Thomatos be DISMISSED without prejudice for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6);
3. Plaintiff's Eighth Amendment claim of inadequate medical care against Defendant St. Clair be DISMISSED without prejudice for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6).
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within 14 days after being served with these findings and recommendations, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations."
The parties are advised that failure to file objections within the specified time may waive the 2 right to appeal the district judge's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).3 4
IT IS SO ORDERED. 5
© 1992-2013 VersusLaw Inc.