RS et al v. Matrisciano et al

Filing 40

Opinion and Order - I ADOPT Magistrate Judge Stewart's Findings and Recommendation 32 . Signed on 12/7/11 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

RS, a minor, represented by and through
his parents and guardians, SS and TS,
Plaintiff,
v.
DETECTIVE RICH MATRISCIANO, an
individual; JANE DOE, an individual;
CITY OF HILLSBORO, a municipal
corporation; BRENDA VOYTEK, an
individual; and OREGON DEPARTMENT
OF HUMAN SERVICES, a public body,
Defendants.
Thomas Freedman, Jr.
Pearl Law LLC
312 N.W. 10th Avenue, Suite 201
Portland, Oregon 97209
Attorney for Plaintiff
Steven A. Kraemer
Leslie Anne Edenhofer
Hoffman Hart & Wagner, LLP
1000 S.W. Broadway, 20th Floor
Portland, Oregon 97205
Attorneys for Defendants Rich Matrisciano and
City of Hillsboro

Opinion and Order, Page

No. 3:11-cv-0667-ST
OPINION AND ORDER

Dirk L. Pierson
Department of Justice
Trial Division, Torts Section
1162 Court Street NE
Salem, Oregon 97301
Attorney for Defendants Oregon Department of Human
Services and Brenda Voytek
SIMON, District Judge:
On October 25, 2011, Magistrate Judge Janice Stewart filed Findings and
Recommendations in this case (doc. # 32). Judge Stewart recommended that the motion to
dismiss filed by defendant Brenda Voytek (doc. # 20) be denied. No objections have been filed.
Under the Federal Magistrates 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, however, no objections are filed, the Magistrates Act does not prescribe any standard
of review. In such cases, “[t]here is no indication that Congress, in enacting [the Magistrates
Act] intended to require a district judge to review a magistrate’s report[.]” Thomas v. Arn, 474
U.S. 140, 152 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)
(en banc) (court must review de novo magistrate’s findings and recommendations if objection is
made, “but not otherwise”).
Although in the absence of objections no review is required, the Magistrates 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 Rule 72(b) of the

Opinion and Order Page 2

Federal Rules of Civil Procedure 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 objections having been made, the court follows the recommendation of the Advisory
Committee and reviews Magistrate Judge Stewart’s findings and recommendations for clear
error on the face of the record. No such error is apparent.
Accordingly, I ADOPT Magistrate Judge Stewart’s Findings and Recommendation (doc.
# 32).
IT IS SO ORDERED.
Dated this 7th day of December, 2011.

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

Opinion and Order Page 3