Joseph v. Boise State University et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION; granting 7 Motion to Dismiss for Failure to State a Claim; incorporating and adopting 24 Report and Recommendation. Plaintiffs Complaint against the Idaho Human Rights Commission is DISMISSED in its entir ety without leave to amend. Plaintiffs Complaint against Boise State University is DISMISSED with leave to amend the Complaint being GRANTED. Any Amended Complaint shall be filed within 30 days from the date of the Magistrate Judges Order 24 , 25 . Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm) Modified on 3/8/2013 to correct filing date (cjm).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

THUY P. JOSEPH,
Case No. 1:12-cv-00267-EJL-MHW
Plaintiff,
ORDER ADOPTING REPORT
AND RECOMMENDATION

v.
BOISE STATE UNIVERSITY, et al.,
Defendants.

On March 15, 2013, United States Magistrate Judge Mikel H. Williams issued a
Report and Recommendation and Order in this matter. (Dkt. 24, 25.) The Report and
Recommendation and Order sets forth the underlying factual and procedural history of the
case and recommends that the Defendants’ Motion to Dismiss be granted in part as
follows: the case be dismissed as to the claims raised against the Idaho Human Rights
Commission with no leave to amend being granted and that the claims against Boise State
University be dismissed but with leave to amend being granted. (Dkt. 24, 25.) Pursuant to
28 U.S.C. § 636(b)(1), the parties had fourteen days in which to file written objections to
the Report and Recommendation. No objections were filed by the parties and the time for
doing so has passed.

ORDER ADOPTING REPORT AND RECOMMENDATION - 1

DISCUSSION
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge.”
Where the parties object to a report and recommendation, this Court “shall make a de
novo determination of those portions of the report which objection is made.” Id. Where,
however, no objections are filed the district court need not conduct a de novo review. In
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted
the requirements of 28 U.S.C. 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo
if objection is made, but not otherwise. As the Peretz Court instructed, “to
the extent de novo review is required to satisfy Article III concerns, it need
not be exercised unless requested by the parties.” Peretz, 501 U.S. at 939
(internal citation omitted). Neither the Constitution nor the statute requires a
district judge to review, de novo, findings and recommendations that the
parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251
(“Absent an objection or request for review by the defendant, the district
court was not required to engage in any more formal review of the plea
proceeding.”); see also Peretz, 501 U.S. at 937-39 (clarifying that de novo
review not required for Article III purposes unless requested by the parties)
....
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Furthermore, to
the extent that no objections are made, arguments to the contrary are waived. See Fed. R.
Civ. P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within
fourteen days of service of the Report and Recommendation). “When no timely objection
is filed, the Court need only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Advisory Committee Notes to Fed. R.
ORDER ADOPTING REPORT AND RECOMMENDATION - 2

Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th
Cir.1974)).
In this case, no objections were filed so the Court is not required to conduct a de
novo determination of the Report and Recommendation. The Court has, however,
reviewed the Report and Recommendation and Order as well as the record in this matter
and finds no clear error on the face of the record. The Magistrate Judge properly set forth
the law applicable to the Motion to Dismiss and has appropriately applied the law to the
facts and circumstances of this case. For the same reasons articulated by the Magistrate
Judge, this Court too finds that the Complaint fails to raise a discrimination claim under
either § 1983 or Title VI. (Dkt. 1.) Furthermore, the Court agrees with the Magistrate
Judge’s conclusion that any amendment as to the claims against the Idaho Human Rights
Commission would be futile but that leave to amend is warranted as to the claims against
Boise State University.
In sum, the Court finds the Report and Recommendation is well-founded in the
law based on the facts of this particular case and this Court is in agreement with the same.
Accordingly, the Court will adopt the Report and Recommendation and will grant the
Defendants’ Motion to Dismiss as stated therein. Leave to amend is denied as to the
claims against the Idaho Human Rights Commission but granted as to the claims against
Boise State University. As ordered by the Magistrate Judge, Plaintiff shall file an
Amended Complaint within thirty days from the date of that Order or risk dismissal of
this action without further notice. (Dkt. 24, 25.) Furthermore, Plaintiff shall serve any
ORDER ADOPTING REPORT AND RECOMMENDATION - 3

such Amended Complaint upon Boise State University in accordance with Federal Rule
of Civil Procedure 4(j)(2)(B) as directed by the Magistrate Judge. (Dkt. 24, 25.)
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation (Dkt. 24) shall be INCORPORATED by reference and ADOPTED in
its entirety.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss (Dkt. 7) is
GRANTED as follows:
1)

Plaintiff’s Complaint against the Idaho Human Rights Commission is
DISMISSED in its entirety without leave to amend.

2)

Plaintiff’s Complaint against Boise State University is DISMISSED with
leave to amend the Complaint being GRANTED. Any Amended Complaint
shall be filed within thirty (30) days from the date of the Magistrate Judge’s
Order (Dkt. 24, 25) as stated therein.
DATED: March 7, 2013

Honorable Edward J. Lodge
U. S. District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION - 4