Scott et al v. Jefferson County, et al.

Filing 30

ORDER - The Court ADOPTS Judge Sullivan's Findings and Recommendation 27 . Defendants' motion to dismiss 16 is GRANTED; Defendant Confederated Tribes of Warm Springs is DISMISSED with prejudice, and Defendant Kerr is DISMISSED w ithout prejudice. Pursuant to Plaintiffs' concessions, their claims for "punishment without trial by jury" under the Fifth, Sixth, Eighth, and Fourteenth Amendments; for "intrusion of bodily security and integrity" under the Ninth and Fourteenth Amendments; for a due process violation again Defendant Confederated Tribes and Defendant Kerr; and for "restraint of liberty without warrant" under the Fifth and Fourteenth Amendments are DISMISSED with prejudice. Signed on 6/18/2013 by Judge Michael H. Simon. (mja)

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

ESTATE OF GRACE KALAMA, by and
through her personal representative, Debbie
Scott; ESTATE OF SEAN STARR, by and
through his personal representative,
Ramona Starr, VALERIE SUPPAH, by and
through her personal representative, Lucille
Suppah, and LADAMERE KALAMA, by
and through his conservator, Elmer Scott,
Plaintiffs,
v.
JEFFERSON COUNTY, a political
subdivision of the State of Oregon; JASON
MICHAEL EVAN; THE
CONFEDERATED TRIBES OF THE
WARM SPRINGS RESERVATION OF
OREGON; TOD HENRY KERR; and
DOES (1 through 5),
Defendants.

PAGE 1 – ORDER

Case No. 3:12-cv-01766-SU

ORDER ADOPTING FINDINGS AND
RECOMMENDATION

Michael H. Simon, District Judge.
United States Magistrate Judge Patricia Sullivan issued Findings and Recommendation in
this case on May 21, 2013. Dkt. 27. Judge Sullivan recommended that Defendants’ motion to
dismiss be granted. No party has filed objections.
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).
If no party objects, 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 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 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 findings
and recommendations for “clear error on the face of the record.”
No party having made objections, this Court follows the recommendation of the Advisory
Committee and reviews Judge Sullivan’s Findings and Recommendation for clear error on the
face of the record. No such error is apparent. Accordingly, the Court ADOPTS Judge Sullivan’s
Findings and Recommendation, Dkt. 27. Defendants’ motion to dismiss, Dkt. 16, is GRANTED;
Defendant Confederated Tribes of Warm Springs is DISMISSED with prejudice, and Defendant
PAGE 2 – ORDER

Kerr is DISMISSED without prejudice. Pursuant to Plaintiffs’ concessions, their claims for
“punishment without trial by jury” under the Fifth, Sixth, Eighth, and Fourteenth Amendments;
for “intrusion of bodily security and integrity” under the Ninth and Fourteenth Amendments; for
a due process violation again Defendant Confederated Tribes and Defendant Kerr; and for
“restraint of liberty without warrant” under the Fifth and Fourteenth Amendments are
DISMISSED with prejudice.
IT IS SO ORDERED.
DATED this 18th day of June, 2013.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

PAGE 3 – ORDER