McNeil et al v. Sherwood School District 88J et al

Filing 76

ORDER - The Court ADOPTS Judge Beckerman's Findings and Recommendation, ECF 62 . Defendants' motion for summary judgment (ECF 35 ) is GRANTED, and Plaintiffs' cross-motion for partial summary judgment (ECF 39 ) is DENIED. Signed 5/16/2017 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CLM, by and through MICHAEL McNEIL,
Guardian ad litem; MICHAEL McNEIL;
and JULIE McNEIL, individually,

Case No. 3:15-cv-1098-SB
ORDER

Plaintiffs,
v.
SHERWOOD SCHOOL DISTRICT 88J,
HEATHER H. CORDIE, KEN BELL,
BRIAN BAILEY, PETER MILLER, and
GARY BENNETT,
Defendants.
Michael H. Simon, District Judge.
United States Magistrate Judge Stacie F. Beckerman issued Findings and
Recommendation in this case on December 30, 2016. ECF 62. Judge Beckerman recommended
that Defendants’ motion for summary judgment (ECF 35) be granted and Plaintiffs’ cross-motion
for partial summary judgment (ECF 39) be denied.
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

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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).
Plaintiffs timely filed an objection. ECF 70. Plaintiffs argue that Judge Beckerman erred
in finding that: (1) Defendants can permissibly regulate Plaintiff CLM’s off-campus speech in
the context raised in this case; (2) there were sufficient “facts which might reasonably have led
school authorities to forecast substantial disruption” caused by CLM’s speech, Tinker v. Des
Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969); (3) Plaintiffs have failed to present
any evidence regarding the person to whom they compare CLM for purposes of their class-ofone equal protection claim; (4) Plaintiffs’ vagueness challenge to the school disciplinary rules
fails as a matter of law; and (5) Plaintiffs’ substantive due process claim, which depends on the
validity of Plaintiff’s First Amendment claim, fails as a matter of law. The Court has reviewed de
novo those portions of Judge Beckerman’s Findings and Recommendation to which Plaintiffs
have objected, as well as Plaintiffs’ objections and Defendants’ response. The Court agrees with
Judge Beckerman’s reasoning regarding these matters and ADOPTS those portions of the
Findings and Recommendation.
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 to which no objections are filed.”); United States.
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that 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

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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
Beckerman’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 Beckerman’s Findings and Recommendation, ECF 62.
Defendants’ motion for summary judgment (ECF 35) is GRANTED, and Plaintiffs’ crossmotion for partial summary judgment (ECF 39) is DENIED.
IT IS SO ORDERED.
DATED this 16th day of May, 2017.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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