United States District Court, D. Oregon
Michael H. Simon, District Judge.
States Magistrate Judge John V. Acosta issued Findings and
Recommendation in this case on August 16, 2018. ECF 76. Judge
Acosta recommended that Plaintiff's motions for partial
summary judgment be denied, the State Defendants' motion
for summary judgment be granted, and the Chase
Defendants' motion to dismiss be granted.
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).
those portions of a magistrate judge'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 judge'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
judge's recommendations for “clear error on the
face of the record.”
timely filed an objection. ECF 81. Plaintiff's objections
are in two categories- that the prison did not have
sufficient evidence to make its disciplinary findings and
that the prison might have recordings of its staff's
communications with Chase despite its assertions to the
contrary. Plaintiff does not object to the remainder of the
Findings and Recommendation.
those portions of Judge Acosta'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 and the Court adopts those
portions of the Findings and Recommendation.
the first category of Plaintiff's objections,
Plaintiff's dispute with the sufficiency of the evidence,
the Court notes that the sufficiency of the State
Defendants' evidence is not the issue in Plaintiff's
due process claim before this Court. As discussed by Judge
Acosta, the issue before this Court is whether Plaintiff was
afforded the appropriate process in his disciplinary
action. “The Due Process Clause forbids the
governmental deprivation of substantive rights without
constitutionally adequate procedure.” Shanks v.
Dressel, 540 F.3d 1082, 1090-91 (9th Cir. 2008).
“Notice and a meaningful opportunity to be heard are
hallmarks of procedural due process.” Ludwig v.
Astrue, 681 F.3d 1047, 1053 (9th Cir. 2012) (quotation
marks and alterations omitted) (quoting Guenther v.
Comm'r, 889 F.2d 882, 884 (9th Cir. 1989)). The
Court has reviewed de novo those portions of Judge
Acosta's Findings and Recommendation to which Plaintiff
objects regarding his due process claim, and agrees with
Judge Acosta's reasoning that Plaintiff was given notice
and a meaningful opportunity to be heard, and therefore was
afforded sufficient process. The Court adopts those portions
of the Findings and Recommendation.
the second category of Plaintiff's objections, the Court
has reviewed Judge Acosta's analysis and adopts those
portions of the Findings and Recommendation relating to
Plaintiff's public records request. Plaintiff's
objection based on speculation that there might be a
recording involving a conversation between a prison official
and a Chase employee is rejected because Plaintiff offers
nothing other than sheer speculation that any such recording
exists and because, as discussed by Judge Acosta, the
Fourteenth Amendment does not provide a right to access
Court ADOPTS the Findings and Recommendation (ECF 76). The
State Defendants' motion for summary judgment (ECF 35) is
GRANTED. The Chase Defendants motion to dismiss (ECF 56) is
GRANTED. Plaintiff's motions for partial summary judgment
(ECF 42, 47) are DENIED. The Court further finds that any
appeal from this Order would be frivolous and thus would not
be taken in “good faith” as that term is used in
28 U.S.C. § 1915(a)(3). See Coppedge v. United
States, 369 U.S. 438, 445 (1962). Accordingly,
Plaintiff's in forma pauperis status should be