The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RICHARD J. FLORES, Case No. 3:23-cv-462-SB
Plaintiff, ORDER
v.
KATE BROWN, et al.,
Defendants.
Michael H. Simon, District Judge.
United States Magistrate Judge Stacie F. Beckerman issued Findings and
Recommendation in this case on May 21, 2024. Judge Beckerman recommended that this Court
grant in part the State Defendants’ Motion to Dismiss (ECF 58).1 Judge Beckerman further
1 The State Defendants are: former Oregon governor Kate Brown, Colette Peters, Heidi
Steward, Tyler Blewett, Joe Bugher, Theron Rumsey, J. Ortiz, S. Ah yat, B. Garrett, D. Berg,
A. Royer, Daniel Dewsnup, Shannon Johnston, J. Quick, P. Maney, C. Scott, J. Peterson,
C. Peterson, T. Palmer, Louisiana, Michael Gower, M. Rhodes, N. Walsborn. C. Thurmond,
A. Henderson, H. Coleman, S. Walker, E. Bradshaw, C. Dieter, T. Hazen, Gullick (identified in
State Defendants’ Motion to Dismiss as “Gulik”), J. Faulstich (identified in State Defendants’
Motion to Dismiss as “Falstich”), Brandi Zavala, J.M. Aguiar, S. Johnson, Battle, Leland
Beamer, Michele Davies, Kelly Drollinger, Warren Roberts, Dane Koznek, Cameron Wilson,
Lonney New, Gina Melise, Phoung Faria, Jason Hanson, and the Inspector General (identified in
State Defendants’ Motion to Dismiss as “Ninman”).
recommended that this Court deny as moot Plaintiff’s Motion for Partial Summary Judgment
(ECF 40). 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 objects 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).
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 Rule 72(b) of the Federal
Rules of Civil Procedure 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 Judge Beckerman’s Findings and Recommendation for clear error on the
face of the record. No such error is apparent. Accordingly, the Court ADOPTS Judge
Beckerman’s Findings and Recommendation (ECF 77). The Court GRANTS IN PART
Defendants’ Motion to Dismiss (ECF 8). The Court grants the motion as to Plaintiff’s Claims
against the Oregon Department of Corrections, without leave to amend. The Court grants the
motion as to Plaintiff’s claims against all other State Defendants, with leave to amend. The Court
DENIES as MOOT Plaintiff’s Motion for Partial Summary Judgment (ECF 40). If Plaintiff
believes he can cure the deficiencies in his First Amended Complaint as identified in Judge
Beckerman’s Findings and Recommendation, Plaintiff may file a Second Amended Complaint
by July 15, 2024. If Plaintiff does not elect to do so, the Court will dismiss without prejudice
Plaintiff’s claims against the State Defendants.
IT IS SO ORDERED.
DATED this 14th day of June, 2024.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge