Opinion
5:22-cv-15-TKW-MJF
05-26-2022
DARIO MICHAEL RODRIGUEZ, Plaintiff, v. KATHY SERRANO, et al., Defendants.
ORDER
T. KENT WETHERELL, II, UNITED STATES DISTRICT JUDGE
This case is before the Court based upon the magistrate judge's Report and Recommendation (R&R) (Doc. 19) and Plaintiff's objection (Doc. 21). The Court reviewed the issues raised in the objection de novo as required by 28 U.S.C. §636(b)(1) and Fed.R.Civ.P. 72(b)(3), and based on that review, the Court agrees with the magistrate judge's determination that this case is due to be dismissed pursuant to 28 U.S.C. §§1915(e)(2)(B)(i) and (ii), because it is frivolous and fails to state a claim upon which relief can be granted.
The Court did not overlook that Plaintiff filed what the Clerk is treating as a notice of appeal (Doc. 22), but that filing does not divest the Court of jurisdiction to enter this Order because an R&R that has not been adopted by the district court is not a final appealable order and is “not valid to perfect the appeal as of the date of the district court's judgment.” Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272, 1273 (11th Cir. 1998).
Notably, Plaintiff's objection does not challenge the magistrate judge's dispositive finding that the named defendants are not subject to suit under §1983 because they are private parties, not state actors. Additionally, the objection does not provide any additional information that would explain how the named defendants caused (or are even connected to) the issues that Plaintiff is allegedly having with other inmates, prison officials, and the prison library. Thus, as the magistrate judge found, Plaintiff's §1983 claim is frivolous.
Accordingly, it is ORDERED that:
1. The magistrate judge's R&R is adopted and incorporated by reference in this Order.
2. This case is DISMISSED pursuant to 28 U.S.C. §§1915(e)(2)(B)(i) and (ii) as frivolous and for failure to state a claim.
3. The Clerk shall close the case file.
4. Plaintiff is advised that if he intends to appeal the disposition of this case to the Eleventh Circuit, he will need to file another notice of appeal within the time limit prescribed by the Federal Rules of Appellate Procedure. See Perez-Priego, 148 F.3d at 1273.
DONE and ORDERED.