Rodriguez v. Paddock

Filing 8

REPORT AND RECOMMENDATIONS re 2 Complaint filed by Manuel Rodriguez. Objections to R&R due by 8/27/2009. Signed by Honorable James R. Marschewski on August 10, 2009. (tg)

IN THE UNITED STATES DISTRICT COURT WE ST E R N DISTRICT OF ARKANSAS FA Y ET T E V ILLE DIVISION

M A NUE L RODRIGUEZ v. JERRY PADDOCK, Deputy Public Defender, Washington C ounty, Arkansas C ivil No. 09-5096

PLAINTIFF

D E FE N D A N T

R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE Plaintiff, Manuel Rodriguez, filed this civil rights action pursuant to the provisions of 42 U .S.C. § 1983. He proceeds pro se. When he filed the case, Rodriguez was incarcerated in the A rkansas Department of Correction (ADC). A t the time Rodriguez filed the action, he was informed that he had an obligation under the rules of this court to keep the court informed of any changes in his address. Rule 5.5 of the Local R ules of the Eastern and Western Districts of Arkansas. On April 27, 2009, all mail sent to R o driguez at the ADC was returned as undeliverable with a notation that he had been paroled. Rodriguez failed to provide the court with his new address. R odriguez has not contacted the court since he filed the complaint on April 10th. The court has not had a valid address on since he was paroled sometime prior to April 27th. F u rth erm o re, Jerome Paddock, Rodriguez's public defender, is not subject to suit under sectio n 1983. To state a claim under § 1983, a plaintiff must allege that the defendant, while acting u n d er color of state law, deprived him of a federal right. In Polk County v. Dodson, 454 U.S. 312, 3 2 5 , 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981), the Supreme Court held that a public defender does n o t act under color of state law when performing a lawyer's traditional functions as counsel to

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in d igen t defendants in state criminal proceedings. Thus, when the claim is merely that the public d efen d er failed to adequately represent the client in his criminal proceedings, it does not state a co gn iz ab le claim under § 1983. See also Gilbert v. Corcoran, 530 F.2d 820 (8th Cir.

1 9 7 6 )(co n clu so ry allegations of ineffective assistance of counsel do not state a claim against public d efen d ers under § 1983). I therefore recommend that this action be dismissed based on Rodriguez's failure to p ro secu te this action and his failure to keep the court informed of his current address. Fed. R. Civ. P. 41(b); Rule 5.5 of the Local Rules of the Eastern and Western Districts of Arkansas. Further, I reco m m en d that the case be dismissed for failure to state a claim under § 1983. Rodriguez has ten days from receipt of the report and recommendation in which to f ile written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections m a y result in waiver of the right to appeal questions of fact. Rodriguez is reminded that o b jectio n s must be both timely and specific to trigger de novo review by the district court. D A T E D this 10th day of August 2009.

/s/ J. Marschewski HON. JAMES R. MARSCHEWSKI UNITED STATES MAGISTRATE JUDGE

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