Estey, Jr. v. Gower et al

Filing 35

ORDER - No party having made objections, this Court follows the recommendation of the Advisory Committee and reviews Judge Papak's Findings and Recommendation for clear error on the face of the record. No such error is apparent. Accordin gly, the Court ADOPTS Judge Papak's Findings and Recommendation, ECF 32 . Defendants' Motion for Summary Judgment (ECF 26 ) is GRANTED. The Court further finds that any appeal from this Order would not be taken in good faith and Plaintiff's in forma pauperis status should be revoked pursuant to 28 U.S.C. § 1915(a)(3). Signed on 4/4/2017 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

WILLIAM M. ESTEY, JR.,
Plaintiff,

Case No. 1:16-cv-28-PK
ORDER

v.
MICHAEL GOWER, et al.,
Defendants.
Michael H. Simon, District Judge.
United States Magistrate Judge Paul Papak issued Findings and Recommendation in this
case on March 16, 2017. ECF 32. Judge Papak recommended that Defendants’ Motion for
Summary Judgment (ECF 26) be granted. No party has filed objections.
Under the Federal Magistrates Act (“Act”), the court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.
§ 636(b)(1). If a party files objections to a magistrate’s findings and recommendations, “the court
shall make a de novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3).
If no party objects, the Act does not prescribe any standard of review. See Thomas v. Arn,
474 U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended
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to require a district judge to review a magistrate’s report to which no objections are filed.”);
United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the
court must review de novo magistrate’s findings and recommendations if objection is made, “but
not otherwise”).
Although review is not required in the absence of objections, the Act “does not preclude
further review by the district judge[] sua sponte . . . under a de novo or any other standard.”
Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ. P. 72(b)
recommend that “[w]hen no timely objection is filed,” the court review the magistrate’s findings
and recommendations for “clear error on the face of the record.”
No party having made objections, this Court follows the recommendation of the Advisory
Committee and reviews Judge Papak’s Findings and Recommendation for clear error on the face
of the record. No such error is apparent. Accordingly, the Court ADOPTS Judge Papak’s
Findings and Recommendation, ECF 32. Defendants’ Motion for Summary Judgment (ECF 26)
is GRANTED. The Court further finds that any appeal from this Order would not be taken in
good faith and Plaintiff’s in forma pauperis status should be revoked pursuant to 28 U.S.C.
§ 1915(a)(3).
IT IS SO ORDERED.
DATED this 4th day of April, 2017.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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