Opinion
07-CV-0383-PK.
September 6, 2007
MILES SWEENEY, JOSEPH M. MABE, Brownstein, Rask, Sweeney, Kerr, Grim, DeSylvia Hay, LLP, Portland, OR, Attorneys for Plaintiff.
HARDY MYERS, Oregon Attorney General KATHERINE VON TER STEGGE, Assistant Oregon Attorney General, Department of Justice, Salem, OR, Attorneys for Defendant.
ORDER
Magistrate Judge Paul Papak issued Findings and Recommendation (#12) on July 13, 2007, in which he recommended this Court grant Defendant Oregon Department of Education's Motion to Dismiss (#8). The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b).
Because no objections to the Magistrate Judge's Findings and Recommendation were timely filed, this Court is relieved of its obligation to review the record de novo. Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). See also Lorin Corp. v. Goto Co., 700 F.2d 1202, 1206 (8th Cir. 1983).
The Court notes the Magistrate Judge correctly applied the principle that "a state agency is not a `person' within the meaning of § 1983 and cannot be subject to suit under § 1983." See Will v. Mich. Dep't of State Police, 491 U.S. 58, 70-71 (1989). The Court also agrees even though the Oregon Tort Claims Act waives the state's immunity (and, therefore, an agency's immunity) to suit in state court, "it is not a waiver of Eleventh Amendment immunity" to suit in federal court. See Estate of Pond v. Oregon, 322 F. Supp. 2d 1161, 1165 (D. Or. 1999). See also Ctr. for Legal Studies v. Lindley, 64 F. Supp. 2d 970, 976 (D. Or. 1999).
Having reviewed all of the legal principles de novo, the Court does not find any error in the Magistrate Judge's Findings and Recommendation.
CONCLUSION
The Court ADOPTS Magistrate Judge Papak's Findings and Recommendation (#12). Accordingly, the Court GRANTS Oregon Department of Education's Motion to Dismiss (#8) and DISMISSES Plaintiff's claims against the Oregon Department of Education with prejudice.
IT IS SO ORDERED.