Rapley et al v. Oregon Department of Human Services, Stabilization and Crisis Unit et al

Filing 11

ORDER - No party having made objections, this Court follows the recommendation of the Advisory Committee and reviews Judge You's Findings and Recommendation for clear error on the face of the record. No such error is apparent. According ly, the Court ADOPTS Judge You's Findings and Recommendation, ECF 8 . Defendants' Motion to Dismiss (ECF 3 ) is GRANTED. Claims three and four are dismissed with prejudice for failure to state a claim, and Plaintiffs are granted leave to amend claims one and two under the danger creation exception recognized by DeShaney v. Winnebago Cty., Dep't of Soc. Servs., 489 U.S. 189 (1989); L.W. v. Grubbs, 92 F.3d 894 (9th Cir. 1996); and L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992). Signed on 7/7/2017 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

THERESA RAPLEY; SUE RIDDELL;
JUDY TINSMAN; ANNAMARIA
MAGLIULO; ANGELA FENN; BRITNY
DE LEON and DERRICK NEELEY,

Case No. 3:17-cv-294-YY
ORDER

Plaintiffs,
v.
OREGON DEPARTMENT OF HUMAN
SERVICES, STABILIZATION AND
CRISIS UNIT; JANA MCLELLAN;
BRADLEY HEATH; TESSA BASTON;
and CLYDE SAIKI, individually and in
their official capacities,
Defendants.

Michael H. Simon, District Judge.
United States Magistrate Judge Youlee Yim You issued Findings and Recommendation
in this case on June 19, 2017. ECF 8. Judge You recommended that Defendants’ Motion to
Dismiss, ECF 3, be granted. No party has filed objections.

PAGE 1 – 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).
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 You’s Findings and Recommendation for clear error on the face
of the record. No such error is apparent. Accordingly, the Court ADOPTS Judge You’s Findings
and Recommendation, ECF 8. Defendants’ Motion to Dismiss (ECF 3) is GRANTED. Claims
three and four are dismissed with prejudice for failure to state a claim, and Plaintiffs are granted
leave to amend claims one and two under the danger creation exception recognized by DeShaney

PAGE 2 – ORDER

v. Winnebago Cty., Dep’t of Soc. Servs., 489 U.S. 189 (1989); L.W. v. Grubbs, 92 F.3d 894 (9th
Cir. 1996); and L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992).
IT IS SO ORDERED.
DATED this 7th day of July, 2017.

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

PAGE 3 – ORDER