Intermountain Fair Housing Council, Inc. et al v. Redwood Apartments et al

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATION; granting 33 Defendant's Motion to Dismiss for Failure to State a Claim; denying 36 Plaintiff's Motion to Amend; adopting 38 Report and Recommendations. Plaintiff has until on or before 1/5/2015 in which to file an amended complaint in this matter. 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)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ELENA B. KARBUSHEVA,
Case No. 1:13-CV-000473-EJL-CWD
Plaintiff,
ORDER ADOPTING REPORT
AND RECOMMENDATION

v.
REDWOOD APARTMENTS,
REDWOOD APARTMENTS, LIMITED
LIABILITY PARTNERSHIP, GLENDA
J. MORTON, CAROL WATERFALL,
and JANICE I. ALEXANDER,
Defendants.

INTRODUCTION
On July 10, 2014, Chief United States Magistrate Judge Candy W. Dale issued a
Report and Recommendation (“Report”), recommending that Defendant’s Motion to Dismiss
be granted and Plaintiff’s Motion to Amend be denied. (Dkt. 38.) Any party may challenge
a magistrate judge’s proposed recommendation by filing written objections to the Report
within fourteen days after being served with a copy of the same. See 28 U.S.C. § 636(b)(1);
Local Civil Rule 72.1(b). Plaintiff filed objections to the Report. (Dkt. 39.) The matter is now
ripe for the Court’s consideration. See Local Civil Rule 72.1(b)(2); 28 U.S.C. § 636(b)(1)(B).

ORDER ADOPTING REPORT AND RECOMMENDATION - 1

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):
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

ORDER ADOPTING REPORT AND RECOMMENDATION - 2

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, the Court has conducted a de novo review of those portions of the Report
to which the Plaintiff has objected. 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.
DISCUSSION
The underlying procedural background and facts of this case are well articulated in
the Report and this Court incorporates the Report’s recitation of the background and facts in
this Order. (Dkt. 38.) In short, this case involves Plaintiff’s claim that Defendants violated
provisions of the Fair Housing Act. (Dkt. 1.) The case was initially brought by the
Intermountain Fair Housing Council who has since reached a settlement with the Defendants.
(Dkt. 21.) The Plaintiff is now proceeding pro se against the remaining Defendants who have
filed the instant Motion to Dismiss. (Dkt. 33.) The Plaintiff has also filed a Motion to
Amend, styled as a Motion to Change Defendant, requesting that the Defendant State of
Idaho be changed to the United States. (Dkt. 36.)
1)

Defendant’s Motion to Dismiss
The Report concluded that the Motion to Dismiss should be granted, concluding that

the complaint fails to state a claim and lacks a proper statement of jurisdiction. (Dkt. 38.) In
particular the Report concludes that any claims against the State of Idaho are precluded by
the Eleventh Amendment. The Plaintiff’s objections to the Report center on its
recommendation that the State of Idaho be dismissed. (Dkt. 39.) In the objections, Plaintiff
ORDER ADOPTING REPORT AND RECOMMENDATION - 3

lists those entities and agencies whom she argues she can and can’t apply for relief against
and states in various places: “I can apply for compensation only against State (Idaho, or
America).” (Dkt. 39.)
Having fully considered the Plaintiff’s objections and the entire record herein, the
Court finds the Report’s conclusions and findings are consistent with this Court’s own view
of the record. For the reasons stated in the Report, this Court finds that the Plaintiffs
Complaint fails to state a claim and has not shown a proper basis for jurisdiction. Therefore,
the Motion to Dismiss shall be granted. Because this Court is in full agreement with the
analysis and conclusions of the Report, the Court incorporates and adopts the Report in its
entirety. The Court also agrees that Plaintiff should be granted leave to amend the complaint
to cure the deficiencies in the pleading as stated in the Report. Such amendment, however,
may not include claims against the State of Idaho as those claims are precluded as a matter
of law. (Dkt. 38 at 7-8.) The Plaintiff has until on or before January 5, 2015 in which to file
her amended complaint. Failure to do so will result in dismissal of this action without further
notice.
2)

Motion to Amend, styled as Motion to Change Defendant
As to Plaintiff’s Motion to Amend the Complaint to change the Defendant State of

Idaho to the United States, the Court agrees with the Report’s analysis that the United States
is immune from a suit under the Fair Housing Act. (Dkt. 38 at 8.) As such, Plaintiff’s Motion
to Change Defendant is denied and any amended complaint may not include a claim against
the United States alleging violations of the Fair Housing Act.
ORDER ADOPTING REPORT AND RECOMMENDATION - 4

ORDER
NOW THEREFORE IT IS HEREBY ORDERED as follows:
1)

The Report and Recommendation entered on July 10, 2014 (Dkt. 38) is
ADOPTED in its entirety and Defendant’s Motion to Dismiss (Dkt. 33) is
GRANTED.

2)

Plaintiff has until on or before January 5, 2015 in which to file an amended
complaint in this matter. Plaintiff is HEREBY NOTIFIED that failure to file
an amended complaint will result in dismissal of this action without further
notice.

3)

Plaintiff’s Motion to Amend, styled as Motion to Change Defendant, (Dkt. 36)
is DENIED.
DATED: December 3, 2014

Honorable Edward J. Lodge
U. S. District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION - 5