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David Dumas v. Bangi

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 2, 2013

DAVID DUMAS,
PLAINTIFF,
v.
BANGI, ET AL.
DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (Doc. 20)

Plaintiff David Dumas ("Dumas") is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C. § 1983. On September 5, 2012, the Court determined that service of Plaintiff's complaint was appropriate on Defendants E. Bangi, Forster, Jack St. Clair, and Thomatos. (Doc. 8). Defendants waived service (Doc. 11) and file a joint motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), on November 27, 2012. (Doc. 12). Plaintiff responded to the motion to dismiss on January 17, 2013. (Doc. 16).

On March 26, 2013, the Magistrate Judge dismissed Plaintiff's Eighth Amendment claims of inadequate medical care against Defendants Forster, Thomatos, and St. Clair. (Doc. 18 at 6-8).

Specifically, Plaintiff's disagreement with Defendants Forster and Thomatos over their decision not to prescribe him morphine failed to demonstrate deliberate indifference. Id. at 6-7. Similarly, Plaintiff's complaint concerning Defendant St. Clair's handling of his medical grievance did not a constitutional violation. Id. at 7. Nonetheless, the Magistrate Judge granted Plaintiff 21 days from the date of service 2 of the March 26, 2013, order to amend the complaint or notify the Court whether he wished to proceed 3 on his cognizable claim against Defendant Bangi. Id. at 8. 4

Plaintiff subsequently notified the Court that he wished to proceed on his cognizable claim 5 against Defendant Bangi on April 9, 2013. (Doc. 19). Thus, the Magistrate Judge issued Findings and 6 Recommendations on April 15, 2013, recommending that Plaintiff's claims against Defendants 7 Forster, Thomatos, and St. Clair be dismissed from this matter for failure to state a claim pursuant to 8 Fed. R. Civ. P. 12(b)(6). (Doc. 20 at 2). Plaintiff was to file any objections to the Magistrate Judge's 9 April 15, 2013, Findings and Recommendations on or before April 29, 2013. Id. He has failed to timely do so.

Therefore, in accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Britt v. Simi Valley United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), the Court has conducted a de novo review of the case. Having carefully, reviewed the entire file, the Court finds that the findings and recommendations are supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations issued April 15, 2013, are ADOPTED IN FULL;

2. Plaintiff's Eighth Amendment claims of failure to provide inadequate medical care against Defendants Forster, Thomatos, and St. Clair are DISMISSED;

3. Defendants Forster, Thomatos, and St. Clair are hereby TERMINATED as parties to this matter.

IT IS SO ORDERED.

20130502

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