Smith v. Deputy Marshall et al

Filing 75

OPINION and ORDER - The Court orders that Judge Papak's findings and recommendation, Dkt. 59 , is ADOPTED. Defendants' Motion for Summary Judgment, Dkt. 38 , is GRANTED and the above captioned case is DISMISSED consistent with Judge Papak's findings and recommendation. Signed on 3/28/2013 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
WILLIAM M. SMITH,

Case No.: 3:12-cv-122-PK

Plaintiff,
OPINION AND ORDER ADOPTING
FINDINGS AND RECOMMENDATIONS

v.
DEPUTY MARSHALL, SERGEANT JANE
DOE, LIEUTENANT SHIPLEY, and BOB
WOLFE,
Defendants.

William M. Smith, SID. #6978452 / EOCI, 2500 Westgate, Pendleton, OR 97801. In Propria
Personam.
Gerald L. Warren, 901 Capitol St. N.E., Salem, OR 97301. Attorney for Defendants Marshall,
Shipley and Wolfe.
SIMON, District Judge.
On December 10, 2012, United States Magistrate Judge Paul Papak filed Findings and
Recommendation (“F&R”) in the above captioned case. Dkt. 59. Judge Papak made the
following recommendations: (1) that final judgment should be entered in favor of all defendants
on Plaintiff’s claims against defendants in their official capacities; (2) that Plaintiff’s claims
against Sergeant Jane Doe in her individual and official capacity should be dismissed without
prejudice; and (3) that all other claims made against defendants in their individual capacities
should be dismissed with prejudice. Plaintiff has filed an objection, along with a Memorandum
in Support and an Affadavit. Dkts. 70-72.

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.” Federal Magistrates Act, 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).
Plaintiff filed objections requesting that the court dismiss his claims without prejudice.
See McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 209) (dismissal without prejudice “leaves
open the possibility for future litigation and [is] not, therefore, [an] adjudicate[ion] on the
merits,” whereas dismissal with prejudice “forecloses the possibility that the underlying claims
will be addressed by a federal court.”). Judge Papak considered the merits of Plaintiff’s claims
and found them unconvincing. The Court has reviewed de novo those portions of Judge Papak’s
findings and recommendation to which Plaintiff has objected, and agrees with Judge Papak’s
reasoning. Because Judge Papak reached the merits of Plaintiff’s claims against defendants
Marshall, Shipley, and Wolfe, the Court finds that dismissal of those claims with prejudice is the
appropriate resolution.
For those portions of a magistrate’s findings and recommendations to which neither party
has objected, the Act does not prescribe a standard of review. Indeed, where there are no
objections, “[t]here is no indication that Congress . . . 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), cert. denied, 540 U.S. 900
(2003) (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

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any other standard.” Thomas, 474 U.S. at 154. Furthermore, 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.”
For those portions of Judge Papak’s findings and recommendation to Plaintiff has not
objected, this Court follows the recommendation of the Advisory Committee and reviews those
matters for clear error on the face of the record. No such error is apparent.
Therefore the Court orders that Judge Papak’s findings and recommendation, Dkt. 59, is
ADOPTED. Defendants’ Motion for Summary Judgment, Dkt. 38, is GRANTED and the above
captioned case is DISMISSED consistent with Judge Papak’s findings and recommendation.
IT IS SO ORDERED.
Dated this 28th day of March, 2013.
/s/ Michael H. Simon______
Michael H. Simon
United States District Judge

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