Gurule v. City of Roseburg Oregon
Filing
80
Findings & Recommendation: Defendants' Motion to Dismiss -- FRCP 12(b) 65 , should be granted and plaintiff's claims against defendants Moore, Knott, Crouse, Carpenter and Young should be dismissed with prejudice. Plaintiff's Motion to Compel 74 should be denied as moot. This action should be dismissed. Objections to the Findings and Recommendation are due by 1/4/2010. Signed on 12/18/09 by Magistrate Judge Thomas M. Coffin. (lae)
<![CDATA[
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON EUGENE DIVISION
RICHARD EVERETT LEE GURULE,
Plaintiff,
Civil No. 09-6013-TC FINDINGS AND RECOMMENDATION
v.
CITY OF ROSEBURG, et al.,
Defendants. COFFIN, Magistrate Judge. Plaintiff filed an action under 42 U.S.C. violations
§
1983 alleging
of
his
constitutional
rights
arising
out
defendants' alleged discrimination against him because he is a criminal. Defendants Moore, Knott, Crouse, Carpenter and Young now move to dismiss on the ground that plaintiff's claims are barred by the statute of limitations and for failure to state a claim. Motion to Dismiss (#65). Plaintiff alleges that he was shot by Justine Burch and Savannah Dial on November 13, 2004, and that while he was in the hospital, he reported the shooting to Officers Carpenter
1
-
FINDINGS AND RECOMMENDATION
and Crouse of the Roseburg Police Department.
Plaintiff
further alleges that on November 17, 2004, he was informed by Detective Kaney of the Roseburg Police Department that Burch and Dial "were not being charged at that time and that it was turned over to the District Attorney's Office and would be up to themv as to whether Burch and Dial would be charged for shooting plaintiff. Plaintiff further alleges that defendants did not take any action against Burch and Dial. The essence of plaintiff Is claims I V
is that
defendants did not take any action against Burch and Dial and merely referred the matter to the District Attorney. Plaintiff alleges that he was informed by defendant Kaney that Burch and Dial were not being charged in connection with the shooting incident on November 17, 2004. this action on January 14, 2009.
I find that any claims plaintiff might have arising out
Plaintiff filed
of defendants1 conduct with respect to the November 13, 2004 shooting incident accrued at the time he was advised that the Roseburg Police Department was referring the matter to the Douglas County District Attorney, ie. November 17, 2004, and are barred by the two year statute of limitations. Moreover, as set forth in the court's Findings and Recommendation (#63) adopted by Judge Aikenls Order
(#68)
entered September 15, 2009, it does not violate a person's constitutional rights to refer a criminal matter to the district attorney and a person does not have a constitutional
2
-
FINDINGS AND RECOMMENDATION
right to have another person arrested.' Plaintiff's Claim VI alleges that defendants Knott and Crouse discriminated against him on February 12, 2007 and However, the crux of plaintiff's Claim VI is March 5, ~ 0 0 7 . ~ that it
[A] crime was committed against this plaintiff and again
was
brushed
aside
and
ignored,
because
o f
the
discrimination of plaintiff's background and the defendants' prejudices against this plaintiff . Again plaintiff was a
victim of a crime and againt (sic) the defendants deprived plaintiff of his equal protection under the laws and did discriminate against this plaintiff." Amended Complaint
( # 52)
Plaintiff's Third
p. 14.
For the reasons set forth
above, this allegation fails to state a claim. Plaintiff's Claim VII is based on an incident alleged to have occurred "on or about April 25, 2007" - within the limitations period. However, plaintiff's allegations in Claim VII concern the alleged actions of the Roseburg Police Department whichhas previously been dismissed as a defendant. Plaintifflsclaim VIII concerns an alleged incident "in mid/late June of 2007." Plaintiff's Third Amended Complaint
(#52) p. 15. Plaintiff's allegation that defendant Carpenter
"told this plaintiff that he did not care one way or the other if I killed myself or not" fails to state a claim cognizale
'plaintiff apparently concedes this point. See, Plaintiff's Motion to Deny Defendantst Motion to Dismiss (#56), p. 2. 2~ithin the statute of limitations period.
3
-
FINDINGS AND RECOMMENDATION
under 42 U.S.C.
§
1983.
Plaintiff's
Claim
IX
alleges
matters
within
the
limitations period and mentions defendant Crouse.
However,
once again the basis for plaintiff's claim appears to be that authorities failed to investigate and/or prosecute crimes against plaintiff. Assuming the matters alleged in Claim X occurred within the two year statute of limitations period, plaintiff's Claim
X does not allege any specific allegations of fact against any
named defendant remaining in this action. In Summary, I find that plaintiff s claims arising out of the November, 2004, shooting incident [claims I - V] are barred by the statute of limitations. Some of plaintiff's
other claims concern defendants remaining in this action and allege matters within the limitations period. However, in
each of those claims the defendant's alleged liability is premised on a theory that the defendant violated plaintiff's rights by failing to pursue criminal investigations against third persons.
As
discussed above, and in the court's
previous Findings and Recommendation (#63) such allegations fail to state a cla.im cognizable under 42 U.S.C. 51983. Based on all of the foregoing, defendants' Motion to Dismiss (#65) should be allowed and plaintiff's claims against defendants Moore, Knott, Crouse, Carpenter and Young should be dismissed with prejudice. Discovery
(#74)
Plaintiff's Motion
to Compel
should be denied as moot. This action should
4 - FINDINGS AND RECOMMENDATION
be dismissed. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4 (a)(1) Federal Rules of Appellate , Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written
objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo considexation of the factual issue and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to
the
Magistrate
Judges's
recommendation.
DATBD this
- day 18
of Dece
5
- FINDINGS AND RECOMMENDATION
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
