Barrier v. City of The Dalles et al

Filing 24

ORDER - No party having made objections, this Court follows the recommendation of the Advisory Committee and reviews Magistrate Judge Acosta's Findings and Recommendation for clear error on the face of the record. No such error is appare nt. Accordingly, the Court ADOPTS Magistrate Judge Acosta's Findings and Recommendation, ECF 22 . The Court GRANTS Defendants' motion to dismiss (ECF 13 ) with respect to Plaintiff's first, second, third, fourth, fifth, and seventh c laims, and DENIES Defendants' motion with respect to Plaintiff's sixth claim. The Court dismisses Plaintiff's fourth and seventh claims with prejudice, and dismisses Plaintiff's first, second, third, and fifth claims without prejudice and with leave to amend. Signed on 6/27/2019 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BILL BARRIER,

Case No. 3:18-cv-01084-AC

Plaintiff,
ORDER
v.
CITY OF THE DALLES, et al.,
Defendants.

Michael H. Simon, District Judge.
United States Magistrate Judge John V. Acosta issued Findings and Recommendation in
this case on June 4, 2019. ECF 22. Defendants moved to dismiss all claims asserted by Plaintiff
for failure to state a claim. Magistrate Judge Acosta recommended that the Court grant
Defendants’ motion to dismiss (ECF 13) with respect to Plaintiff’s first, second, third, fourth,
fifth, and seventh claims, and deny Defendants’ motion with respect to Plaintiff’s sixth claim.
Magistrate Judge Acosta recommended that the Court dismiss Plaintiff’s fourth and seventh
claims with prejudice, and dismiss Plaintiff’s first, second, third, and fifth claims without
prejudice and with leave to amend. 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 judge’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 judge’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 judge’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 Magistrate Judge Acosta’s Findings and Recommendation for clear error
on the face of the record. No such error is apparent. Accordingly, the Court ADOPTS Magistrate
Judge Acosta’s Findings and Recommendation, ECF 22. The Court GRANTS Defendants’
motion to dismiss (ECF 13) with respect to Plaintiff’s first, second, third, fourth, fifth, and
seventh claims, and DENIES Defendants’ motion with respect to Plaintiff’s sixth claim. The
Court dismisses Plaintiff’s fourth and seventh claims with prejudice, and dismisses Plaintiff’s
first, second, third, and fifth claims without prejudice and with leave to amend.
IT IS SO ORDERED.
DATED this 27th day of June, 2019.

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