Bray v. United States Department of Housing and Urban Development et al

Filing 9

ORDER - No party having made objections, this Court follows the recommendation of the Advisory Committee and reviews Judge Jelderk's Findings and Recommendation for clear error on the face of the record. No such error is apparent. Accordi ngly, the Court ADOPTS Judge Jelderk's Findings and Recommendation, ECF 6 . Plaintiff's complaint is dismissed without prejudice. Plaintiff has until January 20, 2017, to file an amended complaint if Plaintiff can cure the deficiencies ide ntified in the Findings and Recommendation. The Court further finds that any appeal from this Order would not be taken in good faith and Plaintiff's in forma pauperis status should be revoked pursuant to 28 U.S.C. § 1915(a)(3). Signed 12/20/2016 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JEFFREY BRAY,
Plaintiff,

Case No. 3:16-cv-1980-JE
ORDER

v.
UNITED STATES DEPARTMENT OF
HOUSING AND URBAN
DEVELOPMENT, ALASKA USE
FEDERAL CREDIT UNION, and
AMERICAN AIRLINES,
Defendants.
Michael H. Simon, District Judge.
United States Magistrate Judge John Jelderks issued Findings and Recommendation in
this case on November 16, 2016. ECF 6. Judge Jelderks recommended that Plaintiff’s application
to proceed in forma pauperis (ECF 2) be granted and Plaintiff’s complaint be dismissed without
prejudice. 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).
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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 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 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 Jelderk’s Findings and Recommendation for clear error on the
face of the record. No such error is apparent. Accordingly, the Court ADOPTS Judge Jelderk’s
Findings and Recommendation, ECF 6. Plaintiff’s complaint is dismissed without prejudice.
Plaintiff has until January 20, 2017, to file an amended complaint if Plaintiff can cure the
deficiencies identified in the Findings and Recommendation. The Court further finds that any
appeal from this Order would not be taken in good faith and Plaintiff’s in forma pauperis status
should be revoked pursuant to 28 U.S.C. § 1915(a)(3).
IT IS SO ORDERED.
DATED this 20th day of December, 2016.

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