Rodriguez v. Central School District 13J

Filing 30

ORDER: The Court ADOPTS Magistrate Judge Hubel's Findings and Recommendation 26 with the clarification that contrary to what is stated in the Conclusion section of the Findings & Recommendation, Magistrate Judge Hubel actually recommen ded that the fifth claim for relief be dismissed. Therefore, defendant's motion to dismiss 4 is granted and plaintiff's First, Second, Third, Fourth, Fifth, and Sixth Claims for Relief, as well as her claim for punitive damages, are dismissed. Plaintiff has twenty-one (21) days from the date of this Order to submit an Amended Complaint. See 3-page order attached. Signed on 1/1/2013 by Judge Marco A. Hernandez. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
MARINA RODRIGUEZ,
Plaintiff,

No. 03:12-cv-01223-HU

v.
CENTRAL SCHOOL DISTRICT
13J, an Oregon Special District,

ORDER

Defendant.
HERNANDEZ, District Judge:
Magistrate Judge Hubel issued a Findings and Recommendation (#26) on November 14,
2012, in which he recommends the Court grant defendant's motion to dismiss.
Defendant has timely filed objections to the Findings and Recommendation. The matter
is now before me pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).
When any party objects to any portion of the Magistrate Judge's Findings and

1 - ORDER

Recommendation, the district court must make a de novo determination of that portion of the
Magistrate Judge's report. 28 U.S.C. § 636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932 (9th
Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Defendant's only objection is to seek clarification of what appears to be a mistake in the
Conclusion section of the Findings & Recommendation. In the Discussion section of the
Findings & Recommendation, Magistrate Judge Hubel recommends that all three of plaintiff's
hostile environment claims be dismissed, including plaintiff's fifth claim for relief. Findings &
Rec. at 14-16. Yet, in the Conclusion section he recommends denying the motion to dismiss as
to the fifth claim. I have carefully reviewed the Findings & Recommendation and conclude that
the Conclusion's reference to the denial of the motion as to the fifth claim is attributable to the
fact that Magistrate Judge Hubel does, in fact, recommend denial of the part of the motion
directed to the fifth claim which argued that the claim was deficient for failing to plead
exhaustion of Title VII administrative remedies. Id. at 3-7. However, in discussing the separate
motion directed to the adequacy of the pleading of the three hostile environment claims,
Magistrate Judge Hubel recommends dismissing all of those claims, including the fifth claim. It
is obvious he meant to dismiss all of the claims and that the Conclusion section mistakenly
misstates his recommendation on the fifth claim.
Other than that clarification, there is no basis to modify the Findings and
Recommendation. I have also reviewed the pertinent portions of the record de novo and find no
other errors in the Magistrate Judge's Findings and Recommendation.
CONCLUSION
The Court ADOPTS Magistrate Judge Hubel's Findings and Recommendation [#26] with
2 - ORDER

the clarification that contrary to what is stated in the Conclusion section of the Findings &
Recommendation, Magistrate Judge Hubel actually recommended that the fifth claim for relief be
dismissed. Therefore, defendant's motion to dismiss [4] is granted and plaintiff's First, Second,
Third, Fourth, Fifth, and Sixth Claims for Relief, as well as her claim for punitive damages, are
dismissed. Plaintiff has twenty-one (21) days from the date of this Order to submit an Amended
Complaint.
IT IS SO ORDERED.
DATED this

day of

MARCO A. HERNANDEZ
United States District Judge

3 - ORDER

, 2012.