Millbrooke v. City of Canby et al

Filing 52

ORDER - The Court ADOPTS Judge Acosta's Findings and Recommendation 44 . Plaintiff's motion for summary judgment is GRANTED IN PART as to Defendants' qualified immunity affirmative defense and DENIED on all other grounds 29 ; and (2) Defendants' motion for partial summary judgment is GRANTED as to Plaintiffs Fourth Amendment Monell violation and negligence claims 19 . Signed on 1/24/14 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ANDREW MILLBROOKE,

Case No. 3:12-cv-00168-AC

Plaintiff,
OPINION AND ORDER
v.
CITY OF CANBY; OFFICER MURPHY,
personally, BRET SMITH, both
individually and in his capacity as Police
Chief,
Defendants.
Leonard Randolph Berman, Law Office of Leonard R. Berman, 4711 S.W. Huber Street,
Suite E-3, Portland, OR 97219. Attorney for Plaintiff.
Gerald L. Warren, Law Office of Gerald Warren, 901 Capitol Street N.E., Salem, OR 97301.
Attorney for Defendants.
Michael H. Simon, District Judge.
United States Magistrate Judge John V. Acosta issued Findings and Recommendation in
this case on December 11, 2013. Dkt. 44. Judge Acosta recommended that: (1) Plaintiff’s motion
for summary judgment be granted as to Defendants’ qualified immunity affirmative defense and
denied on all other grounds, Dkt. 29; and (2) Defendants’ motion for partial summary judgment
be granted as to Plaintiff’s Fourth Amendment Monell violation and negligence claims, Dkt. 19.
PAGE 1 – OPINION AND ORDER

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).
Plaintiff timely filed an objection. Dkt. 48. Plaintiff argues that Judge Acosta erred by
(1) granting Defendants’ motion for summary judgment as to Plaintiff’s Monell claim; and
(2) declining to address Plaintiff’s allegation that Defendant Officer Murphy should be held
liable for an “unconstitutional pat-down or frisk” because Plaintiff did not assert such a claim in
his complaint. The Court has reviewed de novo those portions of Judge Acosta’s Findings and
Recommendation to which Plaintiff has objected, as well as Plaintiff’s objections and
Defendants’ response.
The Court agrees with Judge Acosta’s reasoning regarding Plaintiff’s Monell claim.
Plaintiff failed to establish a genuine dispute of material fact that could establish Monell liability
under a theory of ratification. Regarding the pat-down claim, Plaintiff bears the “initial burden of
informing the court of the basis for its motion and of identifying those portions of the pleadings
and discovery responses that demonstrate the absence of a genuine issue of material fact.”
Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). The Court agrees that
Plaintiff may not move for summary judgment on a claim he failed to plead. See Wasco Prods.
Inc. v. Southwall Tech., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (“Simply put, summary judgment
is not a procedural second chance to flesh out inadequate pleadings.” (citation and quotation
marks omitted)). The Court agrees with Judge Acosta’s reasoning.

PAGE 2 – OPINION AND ORDER

For those portions of a magistrate’s findings and recommendations to which neither party
has objected, 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 to require
a district judge to review a magistrate’s report[.]”); United States. v. Reyna-Tapia, 328 F.3d
1114, 1121 (9th Cir. 2003) (en banc) (the 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 Fed. R. Civ. P. 72(b) recommend that “[w]hen no
timely objection is filed,” the Court review the magistrate’s recommendations for “clear error on
the face of the record.”
For those portions of Judge Acosta’s Findings and Recommendation to which neither
party has 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.
The Court ADOPTS Judge Acosta’s Findings and Recommendation, Dkt. 44. Plaintiff’s
motion for summary judgment is GRANTED IN PART as to Defendants’ qualified immunity
affirmative defense and DENIED on all other grounds, Dkt. 29; and (2) Defendants’ motion for
partial summary judgment is GRANTED as to Plaintiff’s Fourth Amendment Monell violation
and negligence claims, Dkt. 19.
IT IS SO ORDERED.
DATED this 24th day of January, 2014.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

PAGE 3 – OPINION AND ORDER