Kelly v. Eckert et al

Filing 22

ORDER: Adopting Findings and Recommendation (15) in case 3:11-cv-00949-HU; Adopting Findings and Recommendation (15) in case 3:11-cv-00975-HU. Signed on 11/1/11 by Judge Michael H. Simon. Associated Cases: 3:11-cv-00949-HU, 3:11-cv-00975-HU (mja)

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

ROBERTA KELLY,
Plaintiff,

v.

No. ll-CV-949-HU
(Lead case)
No. ll-CV-975-HU

C. MARIE ECKERT, et aI.,
ORDER
Defendants.
SIMON, District Judge:
On September 14, 2011, Magistrate Judge Dennis J. Hubel filed Findings and
Recommendations in this case (doc. # 15). Judge Hubel recommended that the consolidated
actions be dismissed. 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
Order Page 1

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 (9

th

Cir. 2003)

(en bane) (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 judger] 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
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 Rubel's findings and recommendations for clear error
on the face of the record. No such error is apparent.
Accordingly, I ADOPT Magistrate Judge Rubel's Findings and Recommendation
(docket # 15). The consolidated actions are dismissed. All pending motions are denied as moot.
IT IS SO ORDERED.

sJ,
DATED this /

day of November, 2011.

Michael H. Simon
United States District Judge

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