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Stephen Floyd Ullrich v. L. Hines and Dr. April Dawson

August 8, 2012

STEPHEN FLOYD ULLRICH,
PLAINTIFF-APPELLANT,
v.
L. HINES AND DR. APRIL DAWSON, M.D.,
DEFENDANTS-RESPONDENTS.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge.

The opinion of the court was delivered by: Lansing, Judge

2012 Unpublished Opinion No. 584

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Judgment dismissing action, affirmed.

Stephen Floyd Ullrich appeals from the district court's order dismissing his civil complaint pursuant to Idaho Rule of Civil Procedure 40(c). We affirm.

I.

BACKGROUND

On June 16, 2009, Ullrich, an inmate in the custody of the Idaho Department of Correction (IDOC), filed a complaint against L. Hines, Dr. Dawson, and John or Jane Does 1 through 30 alleging medical malpractice, nonfeasance, malfeasance, and violation of contract. Ullrich filed a motion for summary judgment the same day. The district court denied the motion because Ullrich had not served the defendants. On August 20, two copies of the summons and complaint were personally served on a deputy attorney general for IDOC. The deputy attorney general responded by informing Ullrich that he could not accept service on behalf of any of the named defendants because none were IDOC employees. The deputy attorney general also suggested that the named defendants may be employees of a private corporate entity, and provided Ullrich with the contact information of local counsel who may represent the individuals' employer.

On October 6, Ullrich filed a motion for default alleging the defendants had not answered the complaint. The district court entered an order stating that it could not rule on Ullrich's request for default because Ullrich had not shown that he had served the defendants. Ullrich filed a supplemental motion for default on December 21. On January 10, 2010, Ullrich filed a document entitled "Supplemental Civil Complaint Clarified" naming the "State of Idaho

(Governor)" as a defendant. On March 29, 2010, the court entered an order denying Ullrich's motion for default, as follows:*fn1

THIS MATTER having come before the Court on the Plaintiff's motion for entry of default and default judgment. The Court heard argument on March 9, 2010, the Idaho Board of Correction and Idaho Department of Correction represented by Deputy Attorney General William Loomis, Plaintiff, appearing pro se. After considering the documents provided by Mr. Loomis and the arguments presented, it is hereby ORDERED as follows:

1. Proper service of the complaint was not made upon the Idaho Board of Correction, the Department of Correction or any party named in complaint. The Court finds no basis for the entry of default and the motion is denied. Plaintiff is granted leave to file an amended complaint and all parties named in the amended complaint must be served in accordance with the rules of civil procedure.

On April 20, 2011, Ullrich filed an amended complaint listing "L. Hines, et. al." as the defendants. On October 17, the district court entered an order of dismissal, without prejudice, pursuant to I.R.C.P. 40(c) after determining that "no service of process has occurred in this case ...


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