RS et al v. Matrisciano et al, No. 3:2011cv00667 - Document 40 (D. Or. 2011)
Court Description: Opinion and Order - I ADOPT Magistrate Judge Stewart's Findings and Recommendation 32 . Signed on 12/7/11 by Judge Michael H. Simon. (mja)
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RS et al v. Matrisciano et al Doc. 40 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION RS, a minor, represented by and through his parents and guardians, SS and TS, Plaintiff, v. No. 3:11-cv-0667-ST OPINION AND ORDER DETECTIVE RICH MATRISCIANO, an individual; JANE DOE, an individual; CITY OF HILLSBORO, a municipal corporation; BRENDA VOYTEK, an individual; and OREGON DEPARTMENT OF HUMAN SERVICES, a public body, Defendants. Thomas Freedman, Jr. Pearl Law LLC 312 N.W. 10th Avenue, Suite 201 Portland, Oregon 97209 Attorney for Plaintiff Steven A. Kraemer Leslie Anne Edenhofer Hoffman Hart & Wagner, LLP 1000 S.W. Broadway, 20th Floor Portland, Oregon 97205 Attorneys for Defendants Rich Matrisciano and City of Hillsboro Opinion and Order, Page Dockets.Justia.com Dirk L. Pierson Department of Justice Trial Division, Torts Section 1162 Court Street NE Salem, Oregon 97301 Attorney for Defendants Oregon Department of Human Services and Brenda Voytek SIMON, District Judge: On October 25, 2011, Magistrate Judge Janice Stewart filed Findings and Recommendations in this case (doc. # 32). Judge Stewart recommended that the motion to dismiss filed by defendant Brenda Voytek (doc. # 20) be denied. No objections have been filed. Under the Federal Magistrates Act, the court may “accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate’s findings and recommendations, “the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3). If, however, no objections are filed, the Magistrates Act does not prescribe any standard of review. In such cases, “[t]here is no indication that Congress, in enacting [the Magistrates Act] intended to require a district judge to review a magistrate’s report[.]” Thomas v. Arn, 474 U.S. 140, 152 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (court must review de novo magistrate’s findings and recommendations if objection is made, “but not otherwise”). Although in the absence of objections no review is required, the Magistrates Act “does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Rule 72(b) of the Opinion and Order Page 2 Federal Rules of Civil Procedure recommend that “[w]hen no timely objection is filed,” the court review the magistrate’s findings and recommendations for “clear error on the face of the record.” No objections having been made, the court follows the recommendation of the Advisory Committee and reviews Magistrate Judge Stewart’s findings and recommendations for clear error on the face of the record. No such error is apparent. Accordingly, I ADOPT Magistrate Judge Stewart’s Findings and Recommendation (doc. # 32). IT IS SO ORDERED. Dated this 7th day of December, 2011. /s/ Michael H. Simon Michael H. Simon United States District Judge Opinion and Order Page 3
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