Rodriguez v. John Doe et al

Filing 53

ORDER ADOPTING 31 REPORT AND RECOMMENDATIONS. ORDER denying 51 Motion to Amend/Correct; denying 52 Motion to Amend/Correct. Signed by Honorable Timothy L. Brooks on July 13, 2015. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

FERNANDO M. RODRIGUEZ
V.

PLAINTIFF

CASE NOs. 5:14-CV-05161, 5:14-CV-05197, and 5:14-CV-05198

JOSE VEGA a/k/a FEDERICO VEGA-ROBLES
or JOSE F. VEGA; MS. TORRES, Benton County
Detention Center; OFFICER GARCIA, Rogers
Police Department; JERRY; CHON; DAVID QUINTERO,
Mechanic; JOHN DOE DEPUTIES 1 TO 5, Benton County
Detention Center; ISRAEL CASTILLO GALVAN;
BENTONVILLE COURT/ROGERS COURT; OFFICER
WASENG XIONG; OZARK MOUNTAIN POULTRY;
MR. LEON and/or LEON ALVORADA ARCE; JOHN DOE
CONSPIRATORS; and JOHN DOE EX-CELL MATE

DEFENDANTS

ORDER

Currently before the Court is the Report and Recommendation ("R & R") (Doc. 31)
of the Honorable Erin L. Setser, United States Magistrate for the Western District of
Arkansas, filed in this case on December 17, 2014, regarding Plaintiff Fernando M.
Rodriguez's consolidated civil rights actions pursuant to 42 U.S.C. § 1983. The Magistrate
performed a pre-service screening of Mr. Rodriguez's Complaint under the Prison Litigation
Reform Act, 28 U.S.C. §1915A, as he proceeds pro se and in forma pauperis. Mr.
Rodriguez has filed numerous Objections to the R & R (Docs. 32-50). He also filed two
Motions to Correct and Amend (Docs. 51-52). The Court has conducted a de nova review
as to all specified proposed findings and recommendations to which Mr. Rodriguez has
raised objections. 28 U.S.C. § 636(b)(1 ). After careful review, the Court concludes that
the findings and recommendations of the Magistrate should be, and hereby are,

APPROVED and ADOPTED. Further, Mr. Rodriguez's Motions to Correct and Amend are
DENIED.

The Magistrate recommends that Mr. Rodriguez's consolidated cases be dismissed
entirely. Specifically, the Magistrate recommends dismissal as to: (1) Jose Vega, David
Quintero, Israel Castillo Galvan, Mr. Rodriguez's ex-cell mate, Jerry, Chon, Mr. Leon and/or
Leon Alvorada Arce, and Ozark Mountain Poultry, as these are all private individuals or
entities not subject to a § 1983 action; (2) the allegations of excessive force against John
Doe Deputies, as these are barred by the statute of limitations; (3) Officer Garcia's refusal
to investigate Mr. Rodriguez's allegations of stolen mail and documents, as there is no
constitutional right to have law enforcement investigate a reported crime; (4) any
challenges to actions taken by the state court, as only the United States Supreme Court
has jurisdiction to review state court decisions; (5) claims that Mr. Rodriguez's
constitutional rights were violated by the issuance of citations, fines/ court costs, and
proceedings against him, as these are barred by Heck v. Humphrey, 512 U.S. 4 77 (1994 );
(6) Ms. Torres regarding lost mail, as Mr. Rodriguez has not alleged that there was an
ongoing practice or policy that resulted in interference with his mail; and (7) allegations that
Officer Xiong used excessive force by pointing a gun at a suspect, without more, fails to
rise to a violation of a constitutional right.
Much of Mr. Rodriguez's numerous filings do not appear to be responsive in any
comprehensible way to the Magistrate's R & R. Instead, the majority of Mr. Rodriguez's
objections involve letters that he believes other inmates are intercepting in the jail or
purporting to send to the Court in his name. He is concerned about what these inmates

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may do in the future, but he concedes they are not named in this lawsuit. While it is
difficult to surmise Mr. Rodriguez's objections from his general grievances about other
inmates and generally to being imprisoned, Mr. Rodriguez only objects to three of the
Magistrate's recommendations. 1
Mr. Rodriguez first objects to the dismissal of Officer Garcia for failure to investigate
the alleged theft of his mail and certain documents. There is no constitutional right to have
law enforcement officials investigate a reported crime. See Sheets v. Mullins, 287 F.3d
581 (6th Cir. 2002). "The Due Process Clause of the Fourteenth Amendment does not
impose upon the state an affirmative duty to protect its citizens against private acts of
violence, but rather, places limitations on affirmative state action that denies life, liberty,
or property without due process of law." Kallstrom v. City of Columbus, 136 F.3d 1055,
1065 (6th Cir. 1998). Therefore, Mr. Rodriguez's first objection is overruled.
Mr. Rodriguez next objects to the dismissal of Officer Xiong, asserting that because
Officer Xiong pointed a gun at him, Mr. Rodriguez "could have been shot accidentally."
(Doc. 32, p.4 ). To obtain relief under 42 U.S.C. § 1983, "a plaintiff must prove (1) violation
of a constitutional right, (2) committed by a state actor, (3) who acted with the requisite
culpability and causation to violate the constitutional right." McDonald v. City of Saint Paul,
679 F.3d 698, 704 (8th Cir. 2012) (quoting Shrum ex rel Kelly v. Kluck, 249 F.3d 773, 777
(8th Cir. 2001) (citation omitted)). However, drawing and pointing a gun at a prisoner or
suspect, without any indication that the officer intended or attempted to fire the gun, does

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To the extentthat-embedded within the numerous documents submitted-Mr. Rodriguez
has actually objected to the remaining recommendations by the Magistrate to dismiss his
claims, the Court adopts the Magistrate's recommendations and reasoning entirely.

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not rise to the level of a constitutional violation. Edwards v. Giles, 51 F.3d 155, 157 (8th
Cir. 1995). In fact, in his Amended Complaint, Mr. Rodriguez acknowledges that he did not
believe that the officer wished to shoot him. Accordingly, Mr. Rodriguez's second objection
regarding excessive force is without merit and will be overruled.
Lastly, Mr. Rodriguez objects to the dismissal by the Magistrate of his excessive
force claims against the five unknown deputies in the Benton County Jail on February 18,
2003.

Mr. Rodriguez's cause of action is barred by the statute of limitations, as these

consolidated cases were not filed until 2014, some 11 years after the alleged conduct.
While § 1983 does not contain its own statute of limitations, it is governed by the most
analogous state statute of limitations. See Wilson v. Garcia , 471 U.S. 261, 268 (1985). In
Arkansas, the statute of limitations for personal injury is three years. See Ark. Code Ann.
§ 16-56-105(3); Miller v. Norris, 247 F.3d 736 , 739 (8th Cir. 2001) (Ark. Code Ann.§ 16-56105(3) is the statute of limitations applicable to§ 1983 cases). Therefore, any allegation
related to conduct in 2003 is time barred , and is therefore overruled.
The Court, being well and sufficiently advised, finds that the R & R (Doc. 31) should
be and hereby is ADOPTED.
IT IS THEREFORE ORDERED that Plaintiff Fernando M. Rodriguez's Amended
Complaint (Doc. 5) is DISMISSED WITH PREJUDICE, as all claims asserted are frivolous,
fail to state a claim upon which relief may be granted, or are not presently cognizable
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

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'

IT IS FURTHER ORDERED that Mr. Rodriguez's Motions to Correct and Amend
(Docs. 51 and 52) are DENIED. Judgment will be entered contemporaneously with this

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Order.
IT IS SO ORDERED this

Jr

day of July, 2 ,

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