Walker v. American Red Cross

Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

JERRY L. WALKER,

Plaintiff, No. 6:20-cv-01755-MK

v. ORDER

AMERICAN RED CROSS; RELATED ENTITIES, ORGANIZATIONS, AND INDIVIDUALS, Defendant. _______________________________________ AIKEN, District Judge. This case comes before the Court on a Findings and Recommendation filed by Magistrate Judge Mustafa Kasubhai. ECF No. 40. Judge Kasubhai recommends that Plaintiff’s Third Amended Complaint, ECF No. 38, be dismissed without leave to amend and that Plaintiff’s Motion for Reconsideration, ECF No. 37, be denied as moot. Under the Federal Magistrates Act, the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 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). For 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.”). Although no review is required in the absence of objections, the Magistrates Act “does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard.” Id. at 154. The Advisory Committee Notes to Fed. R. Civ. P. 72(b) recommend that “[w]hen no timely objection is filed,” the court should review the recommendation for “clear error on the face of the record.”

In this case, Plaintiff has filed Objections. ECF No. 42. Because the defendant has not appeared in the case, no response has been filed. The Court has reviewed the record, the F&R, and the Objections, and Response and finds no error. The F&R, ECF No. 40, is therefore ADOPTED. The Court DISMISSES the Third Amended Complaint, ECF No. 38, without leave to amend and without service upon the defendant. Plaintiff’s Motion for Reconsideration, ECF No. 37, is DENIED. The

Court also DENIES Plaintiff’s motion for stay. ECF No. 43. Plaintiff’s Motion to Recuse, ECF No. 44, has been resolved in a separate Order. Final judgment shall be entered accordingly. It is so ORDERED and DATED this _1_2_t_h_ day of April 2023.

/s/Ann Aiken ANN AIKEN United States District Judge