Joseph v. Boise State University et al

Filing 46

ORDER ADOPTING REPORT AND RECOMMENDATIONS the Report and Recommendation entered on 8/13/13 (Dkt. 40 ), should be, and is hereby, INCORPORATED by reference and ADOPTED in its entirety. IT IS HEREBY ORDERED that Defendant's Second Motion to Dismi ss (Dkt. 3[1)] is GRANTED and this case is DISMISSED WITH PREJUDICE against all Defendants. The Motion to Seal (Dkt. 42 ) is ADMINISTRATIVELY TERMINATED. 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 (jp)

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 August 13, 2013, United States Magistrate Judge Mikel H. Williams issued a
Report and Recommendation (“Report”), recommending that Defendant Boise State
University’s Second Motion to Dismiss be granted. Any party may challenge the Magistrate
Judge’s proposed recommendation by filing written objections within fourteen days after
being served with a copy of the Report. 28 U.S.C. § 636(b)(1)(C). The district court must
then “make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” Id. The district court may accept,
reject, or modify in whole or in part, the findings and recommendations made by the
magistrate. Id.; see also Fed. R. Civ. P. 72(b).

ORDER ADOPTING REPORT AND RECOMMENDATION - 1

Plaintiff filed objections to the Report arguing 1) the Magistrate Judge misinterpreted
Plaintiff’s allegation, 2) leave to amend should be granted, 3) substantial evidence exists
showing the Plaintiff was treated differently based on her race, 4) Boise State University
failed to comply with the guidelines set forth by the Department of Health and Welfare, and
5) the Magistrate Judge improperly granted the Motion to Dismiss. (Dkt. 41.)1 The Court has
considered the Plaintiff’s contentions and filings and conducted a de novo review of the
record and, upon that basis, finds as follows.2
STANDARD OF REVIEW
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):

1

Plaintiff’s objections include an attachment in the form of a letter written by Boise State
University’s Human Resource Services to the Idaho Human Right’s Commission. (Dkt. 41-1, Att. 1.) The
letter is Boise State University’s response to the Plaintiff’s charge against it filed with the Idaho Human
Right’s Commission. The Court has reviewed this document as well as the entire record in this case before
rendering this decision.
2

The Plaintiff has also filed a Motion to Seal. (Dkt. 42.) In light of the Court’s ruling herein, the
Motion to Seal (Dkt. 42) is administratively terminated.
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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. Civ. P. 72 (citing Campbell v.
United States Dist. Court, 501 F.2d 196, 206 (9th Cir.1974)).
In this case, Plaintiff has filed objections and, therefore, the Court has conducted a de
novo review of those portions of the Report. The Court has also reviewed the entire Report
as well as the record in this matter for clear error on the face of the record and finds as
follows.

ORDER ADOPTING REPORT AND RECOMMENDATION - 3

Discussion
Plaintiff’s first objection takes issue with the Report’s conclusion that Defendants’
failure to respond to the Plaintiffs’ questions was anything more than an misunderstanding.
(Dkt. 41 at 4.) Plaintiff counters that the actions here were not a misunderstanding and goes
on to raise the same arguments made previously as to the actions of the Defendants. Further,
Plaintiff maintains that there is substantial evidence of race discrimination and that Boise
State University failed to comply with the Department of Health and Welfare guidelines.
(Dkt. 41 at 10-12.)
This Court has reviewed the materials submitted in the record and agrees with the
Report’s determination that the Plaintiff has not stated a plausible claim of race
discrimination. (Dkt. 40 at 23.) Simply, Plaintiff has not shown that race was a motivating
factor behind the actions or inactions of Defendants in their conduct towards the Plaintiff.
The emails and other materials attached to the Amended Complaint do not support the
Plaintiff’s conclusory allegations or state plausible claims for relief under a federal statute.
Moreover, having reviewed the Second Motion to Dismiss, briefing, and the entire
record in these matters, the Court finds the Report has correctly decided the Motion. The sum
and substance of the Plaintiff’s objections are the same arguments made in her original
briefing on the Second Motion to Dismiss. The Magistrate Judge addressed these arguments
and decided the issues presented in the Motion consistent with this Court’s own view of the
record. Having reviewed the parties’ briefing and the record herein and for the reasons stated
in the Report, the Court agrees with Magistrate Judge Williams’ conclusions and will grant
ORDER ADOPTING REPORT AND RECOMMENDATION - 4

the Second Motion to Dismiss. Furthermore, the Court is in agreement with the Report that
the claims against the individual Defendants should be dismiss and that the Court should not
exercise supplemental jurisdiction over any remaining state law claims.
The Court also agrees with the Report’s conclusion that no further leave to amend
should be granted. In her objections, Plaintiff seeks leave to amend the complaint a second
time stating that she will condense the allegations, note the deficiencies, follow the guidelines
of Rule 8(a), and provides a summary of the amended complaint. (Dkt. 41.) The Court has
carefully considered this request, particularly in light of the fact that Plaintiff is pro se and
the principles of Rule 15. See Fed. R. Civ. P. 15(a) (providing that leave to amend “shall be
freely given when justice so requires.”). Having done so, the Court finds that granting further
leave to amend would be futile in this case. For the reasons stated in the Report, the Court
finds that Plaintiff simply has not stated a plausible claim for relief under the federal statues.
ORDER
Having conducted a de novo review of the Report and Recommendation, this Court
finds that Magistrate Judge Williams’ Report and Recommendation is well founded in law
and consistent with this Court’s own view of the evidence in the record. Acting on the
recommendation of Magistrate Judge Williams, and this Court being fully advised in the
premises;

ORDER ADOPTING REPORT AND RECOMMENDATION - 5

IT IS HEREBY ORDERED that the Report and Recommendation entered on August
13, 2013 (Dkt. 40), should be, and is hereby, INCORPORATED by reference and
ADOPTED in its entirety.
IT IS HEREBY ORDERED that Defendant’s Second Motion to Dismiss (Dkt. 31)
is GRANTED and this case is DISMISSED WITH PREJUDICE against all Defendants.
The Motion to Seal (Dkt. 42) is ADMINISTRATIVELY TERMINATED.

DATED: February 21, 2014

Honorable Edward J. Lodge
U. S. District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION - 6