United States District Court, D. Oregon
Michael H. Simon United States District Judg.
States Magistrate Judge Jolie A. Russo issued Findings and
Recommendation in this case on June 26, 2019. ECF 66.
Magistrate Judge Russo recommended that Plaintiff's
Motion for Leave to File Amended Complaint (ECF 57) be
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 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.” Plaintiff timely filed an objection (ECF 68),
to which Defendants responded. ECF 69. Plaintiff objects to
the portion of Magistrate Judge Russo's recommendation
finding that Plaintiff's proposed amended complaint does
not cure the deficiencies noted in this Court's January
2, 2019 Order. Plaintiff argues that its proposed amendment
does contain specific allegations of fact that plausibly
support its characterization of intentional, deliberate, or
knowing falsehoods on the part of Defendants that could be
sufficient to establish a substantive due process claim.
Ninth Circuit has recognized that under Rule 15(a),
“leave to amend shall be freely given when justice so
requires, ” and “this policy is to be applied
with extreme liberality.” Owens v. Kaiser Found.
Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001).
But a complaint, or a proposed amended complaint, must still
contain factual allegations to “plausibly suggest an
entitlement to relief, such that it is not unfair to require
the opposing party to be subjected to the expense of
discovery and continued litigation.” Starr v.
Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)). “The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Mashiri v. Epstein Grinnell & Howell, 845 F.3d
984, 988 (9th Cir. 2017) (quotation marks omitted).
Court does not adopt the portion of the recommendation
finding that even if Defendants “falsely manufacture[d]
a [public health] crisis, ” ECF 66 at 10,
Plaintiff's proposed amendment should not be allowed
because Plaintiff has not pleaded specific facts explaining
the Defendants' motivation for targeting Plaintiff as
part of that manufactured crisis. The Court agrees with
Plaintiff that in certain circumstances, facts suggesting
knowingly false justifications can support a claim for a
substantive due process violation without a need to show the
motivation behind the misconduct.
Court agrees with the Magistrate Judge's overall
conclusion, because Plaintiff has not pleaded additional
factual content that plausibly shows that Defendants falsely
manufactured a public health crisis. Nor has Plaintiff
otherwise pleaded facts that plausibly suggest that
Defendants engaged in intentional, deliberate, or knowing
falsehoods. Plaintiff argues that the Magistrate Judge did
not consider the fact that Defendants formally established an
“Incident Management Team” that shared
decision-making authority, and therefore that the actions of
Defendants were “deliberate and concerted wrongful
action.” While the creation of such a team may
plausibly show concerted action, it does not plausibly show
has also pleaded facts that plausibly suggest that Defendants
knew that there were problems with the reliability of the DEQ
air monitoring of Bullseye. But Plaintiff has not pleaded
facts that plausibly show that this air monitoring, nor the
other data at issue in this case, was a
“pretextual” rationale for agency action that was
sufficient to support an inference of “arbitrary or
even malicious conduct.” Lockary v. Kayfetz,
917 F.2d 1150, 1155-56 (9th Cir. 1990).
has attempted to state a claim for a substantive due process
violation based on abusive executive action. The Supreme
Court has emphasized “that only the most egregious
official conduct can be said to be ‘arbitrary in the
constitutional sense, '” in such cases. Cty. of
Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (quoting
Collins v. Harker Heights, Tex., 503 U.S. 115, 129
(1992). The “cognizable level of executive abuse of
power [is] that which shocks the conscience.”
Id. Plaintiff's proposed amended complaint does
not state a facially plausible claim for a substantive due
process violation, because it does not plead “factual
content that allows the court to draw the reasonable
inference” that Defendants are liable for such a
substantive due process violation. Iqbal, 556 U.S.
Court ADOPTS IN PART and DECLINES TO ADOPT IN PART the
Findings & Recommendation (ECF 66) consistent with this
Order. Plaintiff's Motion for Leave to File Amended
Complaint (ECF 57) is DENIED.