United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
United States Magistrate Judge John V. Acosta issued Findings and Recommendation in this case on December 9, 2014. Dkt. 31. Judge Acosta recommended that Defendants' Motion to Dismiss (Dkt. 17) be granted in part and denied in part. Specifically, Judge Acosta recommended that Defendants' motion be (1) granted with prejudice as to Plaintiff's substantive due process claim and Plaintiff's Monell claim alleging that defendants Ott, Moore, and Gates' actions as "final policy members" constituted a violation of Plaintiff's constitutional rights; (2) granted without prejudice as to Plaintiff's Monell claim alleging that Multnomah County policy constituted a violation of Plaintiff's constitutional rights; and (3) denied as to all remaining claims.
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)(C). 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).
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 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 recommendations for "clear error on the face of the record."
Defendants timely filed an objection (Dkt. 33). Plaintiff declined to file a response. Defendants object to portions of the Findings and Recommendation respecting: (1) whether Oregon's Veterans' Preference statute creates an interest protected by the Due Process Clause; (2) whether Plaintiff has received sufficient post-deprivation process to satisfy the requirements of procedural due process; and (3) whether qualified immunity bars Plaintiff's procedural due process claim.
The Court has reviewed de novo those portions of the Findings and Recommendation to which Defendants have objected, as well as Defendants' objections and the underlying briefing in this case. The Court agrees with Judge Acosta's reasoning and conclusions regarding Plaintiff's substantive due process, retaliation, and Monell claims (F&R Sections I.A, II, and III, respectively). Regarding the issue of qualified immunity (F&R Section IV) the Court adopts Judge Acosta's conclusion, supplemented as follows. For the reasons discussed below, the Court declines to adopt those portions of the F&R relating to Plaintiff's procedural due process claim (F&R Section I.B).
A. Judicial Notice
Defendants request that the Court take judicial notice of the Oregon Bureau of Labor and Industries' ("BOLI") final order in In the Matter of: Multnomah County Sheriff's Office, Respondent, 2014 WL 7004599 (OR BOLI). Federal Rule of Evidence 201 allows a court to take judicial notice of facts that can be "accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b)(2). The court may take judicial notice of documents that are matters of public record. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.1986) (A district court may take "judicial notice of matters of public record outside the pleadings" when determining whether a complaint fails to state a claim.). Plaintiff has not opposed Defendants' request. These documents are all matters of public record and publicly available, and their accuracy is not reasonably subject to debate. Accordingly, the Court grants Plaintiff's request.
B. Qualified Immunity
"Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011) (citation omitted). "A Government official's conduct violates clearly established law when, at the time of the challenged conduct, [t]he contours of [a] right [are] sufficiently clear' that every reasonable official would have understood that what he is doing violates that right.'" Id. at 2083 (alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). There need not be case law "directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Id. "Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions." Id. at 2085. The Court has discretion to decide which of the two prongs of the qualified immunity analysis to address first. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Oregon's Veterans' Preference statute is codified at Or. Rev. Stat ("ORS") §§ 408.225 through 408.237. Before 2007, the statute did not specifically address the application of the preference in the type of non-scored hiring and promotional processes used in this case. In 2007, however, ORS § 408.230 was amended to add Subsection (2)(c), which states:
For an application examination that consists of an interview, an evaluation of the veteran's performance, experience or training, a supervisor's rating or any other method of ranking an applicant that does not result in a score, the employer shall give a preference to the veteran or disabled veteran. An employer that uses an application examination of the type described in this paragraph shall devise and apply methods by which the employer gives special consideration in the employer's hiring decision to veterans and disabled veterans.
Defendants contend that neither the Legislature nor BOLI has provided any guidance for application of the preference in non-scored processes since the 2007 addition of subsection (2)(c). Moreover, Defendants contend that there is no case law further defining the contours of what constitutes lawful process under ORS § 408.230(2)(c). Therefore, Defendants argue, there is no "clearly established" law on point, and they are entitled to qualified immunity.
Defendants' argument, however, too narrowly confines the relevant inquiry at this stage of the case. While Plaintiff's Amended Complaint is not a model of clarity, Plaintiff alleges, in part, that Defendants' did not provide Plaintiff with any veterans' preference at all. Moreover, Plaintiff's due process claim is factually intertwined with his retaliation claim, in which Plaintiff alleges that Defendants not only failed to give Plaintiff any preference, but that they did so intentionally and that Defendants' contradictory explanations of how the preference was applied were entirely pretextual. Thus, the relevant question for purposes of the second prong of the qualified immunity analysis is not whether the specific requirements of ORS § 408.230(2)(c) were clearly established law, but whether the granting of a preference to veterans was clearly established under Oregon law. The latter question is not disputed by Defendants, and Oregon law is sufficiently clear ...