Emmingham v. Seltzer, No. 3:2008cv06329 - Document 152 (D. Or. 2011)

Court Description: OPINION AND ORDER: Upon review, I agree with Judge Hubels recommendation, and I ADOPT the F&R 125 as my own opinion, 46 and 80 . Signed on 5/19/2011 by Judge Michael W. Mosman. (dls)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION JOHN EMMINGHAM, CV 08-6329-HU Plaintiff, OPINION AND ORDER v. PER MICHAEL SELTZER, MICHAEL HATHAWAY, Counselor, Oregon State Penitentiary Minimum (OSPM), THOMAS WRIGHT, Facility Manager, OSMP, CARLA TUPOU, Assistant Superintendent, OSCI, R. OGDEN, Security Manager, OSCI, GREGORY HUNTER, Library Coordinator, OSCI, Defendants. MOSMAN, J., On January 18, 2011, Magistrate Judge Hubel issued his Findings and Recommendation ( F&R ) [125] in the above-captioned case recommending that defendant Seltzer s motion for summary judgment [80] be granted, and that the ODOC Defendants motion for summary judgment [46] be granted except as to plaintiff s First Amendment retaliation claim. Plaintiff objected [131], as did the ODOC Defendants [146]. DISCUSSION 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 de novo determination regarding 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, de novo or under 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 part of the F&R. 28 U.S.C. § 636(b)(1)(C). Upon review, I agree with Judge Hubel s recommendation, and I ADOPT the F&R [125] as my own opinion. IT IS SO ORDERED. DATED this 19th day of May, 2011. /s/ Michael W. Mosman MICHAEL W. MOSMAN United States District Court

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