Scheveck v. City of Boise et al

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATIONS It is hereby ORDERED that the Report and Recommendation (Dkt. 15 ) shall be INCORPORATED by reference, ADOPTED in itsentirety and Defendants' Motion to Dismiss (Dkt. 9 ) is GRANTED. 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

LYNDON SCHEVECK,
Case No. 1:16-cv-00036-EJL-REB
Plaintiff,
v.

ORDER ON REPORT AND
RECOMMENDATION

THE CITY OF BOISE CITY, DAVID G.
FREDERICK, DAVID S. KAURIN,
JACOB M. NORMAN, and ANDREW
T. HILTON,
Defendants.
INTRODUCTION
The United States Magistrate Judge issued a Report and Recommendation in this
matter. (Dkt. 15.) 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. Plaintiff timely filed
objections and the Defendants have responded. (Dkt. 16-18.) The matter is ripe for the
Court’s consideration. See Local Civil Rule 72.1(b)(2); 28 U.S.C. § 636(b)(1)(B).
STANDARD OF REVIEW
Pursuant to 28 U.S.C. ' 636(b)(1)(C), this Court Amay 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 Ashall 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
ORDER - 1

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, Ato
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
(AAbsent 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). AWhen 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)).
DISCUSSION
The Court adopts the factual background set forth in the Report and
Recommendation. (Dkt. 15.) In his objections, Plaintiff maintains his Complaint and
§ 1983 claims are timely. (Dkt. 16, 17.) Having reviewed the objections and Defendants
ORDER - 2

response to the same as well as the entire record in this matter, the Court finds Plaintiff
has failed to establish that his Complaint was timely filed. His notice of tort claim to the
Defendants is not a Complaint and was not filed with the Court. Therefore, the critical
pleading for determining if the Complaint was filed within the applicable two year statute
of limitations is the filing date of the Complaint with the Court. The Complaint was filed
on January 22, 2016 and the alleged violation of Plaintiff’s constitutional rights occurred
on January 25, 2013. (Dkt. 1.) Therefore, the Complaint is outside the two year statute of
limitations for 42 U.S.C. § 1983 claims and must be dismissed with prejudice.
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. Simply
put, Plaintiff’s Complaint is barred by the applicable statute of limitations. Moreover, the
Court has reviewed the entire Report as well as the record in this matter for clear error on
the face of the record and none has been found. The Court adopts the Report in its entirety
and, for the reasons stated therein, the Court will grant the Defendants’ Motion to Dismiss.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation (Dkt. 15) shall be INCORPORATED by reference, ADOPTED in its
entirety and Defendants’ Motion to Dismiss (Dkt. 9) is GRANTED.

March 10, 2017

ORDER - 3