United States District Court, D. Oregon
Michael H. Simon, District Judge
States Magistrate Judge Paul Papak issued Findings and
Recommendation in this case on August 7, 2017. ECF 30. Judge
Papak recommended that Defendants' partial motion to
dismiss be granted in part and denied part. Specifically,
Judge Papak recommended that Defendants' motion be denied
with respect to Plaintiff's claim under the First
Amendment to the U.S. Constitution, but be granted with
respect to Plaintiff's equal protection claim under
Article I, Section 20 of the Oregon Constitution. Judge Papak
found that Defendants are protected from suit in federal
court for such a claim by Eleventh Amendment sovereign
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).
timely filed an objection. ECF 33. Plaintiff's only
objection is that Judge Papak should have construed
Plaintiff's claim under Article I, section 20 of the
Oregon constitution as a claim for habeas corpus relief under
Oregon Revised Statutes §§ 34.310-730. Instead,
when Plaintiff argued to Judge Papak that he could construe
Plaintiff's equal protection claim as a habeas claim,
Judge Papak considered whether it could be brought as a
federal habeas claim. Plaintiff argues that Judge
Papak misunderstood the type of habeas claim Plaintiff had
intended his claim be construed.
offers no authority for the contention that this Court has
jurisdiction to consider state habeas claims under the Oregon
statute, and the Court could not find any. The statute itself
establishes to the contrary, providing jurisdiction in
“[t]he circuit court of the judicial district wherein
the party is imprisoned or restrained, and, if vested with
power to exercise judicial functions, the county court and
county judge of the county wherein the party is imprisoned or
restrained.” Or. Rev. Stat. § 34.320. Further, the
Court notes that when the state habeas statute first became
effective, this Court found that the statute provided a state
court alternative to federal court jurisdiction. See Ex
parte Sherwood, 177 F.Supp. 411, 413 (D. Or. 1959)
(“In addition, Chapter 636, Oregon Laws 1959, now in
force, which relates to post conviction relief in criminal
cases, makes it no longer necessary for state prisoners, in
most instances, to continue to seek relief through habeas
corpus proceedings in the Federal Courts. The procedure set
forth in the Oregon statute will afford Earl Sherwood
adequate and complete opportunity for relief.”).
the Court declines to construe Plaintiff's claim as one
for state habeas relief under § 34.330, and to then
exercise supplemental jurisdiction over that claim.
Court also has reviewed de novo Judge Papak's
analysis relating to Plaintiff's Article I, Section 20
claim and sovereign immunity. The Court agrees with Judge
Papak's reasoning and ADOPTS those portions of the
Findings and Recommendation.
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 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 Papak'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.
Court ADOPTS Judge Papak's Findings and
Recommendation, ECF 30. Defendants' Motion to Dismiss
(ECF 17) is GRANTED IN PART and DENIED IN PART. It is granted
with respect to Plaintiff's equal protection claim under
the Oregon constitution, which is dismissed with prejudice.
Defendants' motion is otherwise denied.
IS SO ORDERED.
 The Court also agrees with Judge
Papak's notation that nothing in the Findings and
Recommendation or this Court's Order precludes Plaintiff
from requesting leave to amend his complaint to add a claim
under 42 U.S.C. § 1983 alleging an equal protection