Brocato v. City of Baker City et al, No. 2:2010cv00592 - Document 61 (D. Or. 2012)
Court Description: OPINION AND ORDER: ADOPTING Findings and Recommendation 51 ; GRANTING Motion for Summary Judgment 17 ; GRANTING IN PART/DENYING IN PART Motion for Summary Judgment 20 . See order for full text. Signed on 3/30/12 by Judge Michael W. Mosman. (dls)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION STEPHEN BROCATO, Plaintiff, No. 2:10-cv-00592-SU v. OPINION AND ORDER CITY OF BAKER CITY, et al., Defendants. MOSMAN, J., On January 4, 2012, Magistrate Judge Sullivan issued her Findings and Recommendation ( F&R ) [51] in the above-captioned case recommending: (1) that I grant in part and deny in part the Motion for Summary Judgment [20] filed by defendants Aletha Bonebrake, Clair Button, Beverly Calder, Dennis Dorrah, and the City of Baker City (collectively Defendants ), and (2) that I grant defendant Gary Dielman s Motion for Summary Judgment [17] in its entirety. Defendants filed Objections [53] and plaintiff responded [58]. Plaintiff filed Objections [54] and defendants responded [59]. Defendant Gary Dielman also responded [60] to plaintiff s objections. BACKGROUND The magistrate judge makes only recommendations to the court, to which any party may file written objections. The court is not bound by the recommendations of the magistrate judge, but retains responsibility for making the final determination. The court is generally required to make a 1 OPINION AND ORDER de novo determination of those portions of the report or specified findings or recommendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the F&R to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). While the level of scrutiny under which I am required to review the F&R depends on whether or not objections have been filed, in either case, I am free to accept, reject, or modify any of the magistrate judge s F&R. 28 U.S.C. § 636(b)(1)(C). DISCUSSION Defendants raise several objections with regard to Judge Sullivan s recommendation that I deny their motion for summary judgment as to plaintiff s first claim for relief under Section 1983. (Defendants Obj. [53] 6 19). Plaintiff advances five objections, arguing that Judge Sullivan erred: in recommending that I dismiss plaintiff s whistleblowing claim, in finding the lack of an important public duty, in determining that the defendant Councilors defamatory statements about Mr. Brocato were made in the course and scope of their employment, in determining that defendant Gary Dielman s statements were opinion, and in recommending dismissal of plaintiff s false light claim. (Pl. Obj. [54] 2 19). I have reviewed the briefings and the record and find the parties objections unpersuasive. CONCLUSION Upon review, I agree with Judge Sullivan s recommendation and I ADOPT the F&R [51] as my own opinion. Defendants Motion for Summary Judgment [20] is GRANTED IN PART AND DENIED IN PART, as follows: Defendants motion for summary judgment on plaintiff s deprivation of liberty claim under Section 1983 is DENIED; Defendants motion for summary 2 OPINION AND ORDER judgment on plaintiff s whistleblowing claim under Or. Rev. Stat.§ 659A.203 is GRANTED; Defendants motion for summary judgment on plaintiff s intentional infliction of emotional distress claim is GRANTED; Defendants motion for summary judgment on plaintiff s wrongful discharge claim is GRANTED; Defendants motion for summary judgment on plaintiff s intentional interference with economic relations claim is GRANTED; Defendants motion for summary judgment on plaintiff s defamation claim is GRANTED; Defendants motion for summary judgment on plaintiff s false light claim is GRANTED; and Defendants motion for summary judgment on plaintiff s conspiracy claim is GRANTED. Defendant Gary Dielman s Motion for Summary Judgment [17] is GRANTED. IT IS SO ORDERED. DATED this 30th day of March, 2012. /s/ Michael W. Mosman ___ MICHAEL W. MOSMAN United States District Court 3 OPINION AND ORDER
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