Gonzales et al v. Schutt

Filing 45

ORDER: This Court ADOPTS the Magistrate's Findings and Recommendation 36 in its entirety; defendant's motion for summary judgment 25 is GRANTED. Further, plaintiff's motion for certification 40 is DENIED. This case is DISMISSED. See formal ORDER. Signed on 7/23/2015 by Chief Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BONNIE JEAN GONZALES
and ORLANDO GONZALES,

Case

No~

1:14-cv-01347-CL
0 R D E R

Plaintiffs,
v.

DAVID SCHUTT,
Defendant.
AIKEN, Chief Judge:
Magistrate Judge Clarke filed his Findings and Recommendation
on May 21, 2015. Magistrate Judge Clarke recommends that defendant
David Schutt's motion for summary judgment be granted, finding that
absolute prosecutorial immunity precluded plaintiffs

Bonnie and

Orlando

this

Gonzales'

claims.

pursuant to 28 U.S.C.
Page 1 - ORDER

§

The matter

is

now before

Court

636(b) (1) (B) and Fed. R. Civ. P. 72 (b).

When

either party objects

to

any portion of a magistrate

judge's Findings and Recommendation, the district court must make
a de novo determination of that portion of the magistrate judge's
report.

28

U.S.C.

§

636(b) (1) (C);

McDonnell

Douglas

Corp.

v.

Commodore Bus. Machs., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981),
cert. denied,

455 U.S. 920 (1982).

On June 2 0,
same

day,

2 015,

plaintiffs

plaintiffs filed timely objections.
also

moved

for

an

order

following question to the Oregon Supreme Court:

That

certifying

the

"When a public

official submits a resignation after the filing of recall petitions
with the Secretary of State,
immediately upon the

does

that resignation take effect

certification of sufficient

signatures

to

require a recall election; or may the official make the resignation
effective at any date after such certification as he may choose,
and thereby avoid either an election or removal from office until
his chosen date?" Pls.' Mot. Certification 2.
Regarding plaintiffs' objections, the Court reviews this case
de novo and agrees with Magistrate Judge Clarke's analysis and
conclusions.

Critically,

as

both established precedent

and the

Findings and Recommendation make clear, the title of the officer
performing

the

prosecutorial

act

is

irrelevant:

"[i]mmunity

attaches to the nature of the function performed, not the identity
of the actor who performed it." Lacey v. Maricopa Cnty., 693 F.3d
896, 912-13 (9th Cir. 2012)
&

Recommendation 7

questionable

title

Page 2 - ORDER

(May 21,
is

not

(citations omitted); see also Findings
2015)

("[a]

person with lacking or

barred

from

invoking

prosecutorial

immunity

[as]

prosecutorial

courts have extended the protections
immunity to non-prosecutors")

of absolute

(collecting cases).

Accordingly, plaintiffs' objections -which are based oh the flawed
premise

that

"the

immunity

defense

is

available

only

to

prosecutors"- are unavailing. Pls.' Objections 4.
Concerning plaintiffs' motion for certification, the proposed
question

fails

to

meet

Helicopter Servs.,

the

criteria

articulated

Inc. v. Rogerson Aircraft Corp.,

in

Western

311 Or.

361,

811 P.2d 627 (1991), and therefore does not comply with LR 83-15. 1
Amongst

other

issues,

the

proposed question

is

not

"one whose

answer may determine the cause"- i.e. resolving this question does
not "have the potential to determine at least one claim in the
case." Western Helicopter Servs., 311 Or. at 365. As denoted above,
whether defendant was the District Attorney prior to August 31,
2012, does not forestall the application of absolute immunity, as
the

"decision to

appoint

a

special

prosecutor"

is

a

protected

function. Lacey, 693 F.3d at 928-34. Moreover, plaintiffs' question
misstates the undisputed facts; the Court is not confronted with a
situation wherein

an

completed

petition

certified.

recall

Rather,

1

official

the

was

offered

his

submitted

uncontravened

resignation
but

before

evidence

of

after
it

a

was

record

While not dispositive, the timing of plaintiffs' motion
subverts the judicial process; they obtained an adverse ruling on
the merits and sought an extension to file objections before
renewing their request for certification. See Gonzales v. Schutt,
2015 WL 365696, *1 (D.Or. Jan. 27, 2015) (denying plaintiffs'
previcius motion for certification raised pursuant to defendant's
motion to dismiss)
Page 3 - ORDER

demonstrates that a sufficient number of recall signatures were not
filed with the Secretary of State until after defendant resigned.
~~

Second Am. Compl.

4-5;

Pls.'

Resp. to Mot.

Summ. J.

4 (citing

Force Decl. Exs. 1-2); Findings & Recommendation 2 (May 21, 2015).
As a result, the Secretary of State rescinded the recall notice as
moot

and the plain language of Article

II,

Section 18,

of the

Oregon Constitution was never invoked. Van Meter Decl. Exs. B-D.
In

sum,

this

Recommendation

(doc.

Court
36)

ADOPTS

the

Magistrate's

Findings

and

in its entirety; defendant's motion for

summary judgment (doc. 25) is GRANTED. Further, plaintiffs' motion
for certification (doc. 40) is DENIED. This case is DISMISSED.
IT IS SO ORDERED.
Dated this

day of July 2015.

United States District Judge

Page 4 - ORDER