The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
On January 12, 2010, United States Magistrate Mikel H. Williams issued his Report and Recommendation in this matter ( Docket No. 71). Pursuant to 28 U.S.C. § 636(b)(1) and Dist. Idaho Loc. Civ. R. 72.1, the parties had fourteen days (plus three days pursuant to Fed. R. Civ. P. 6(d)) in which to file written objections to the Report and Recommendation.*fn1 On January 27, 2010, Plaintiff Blaine Murray timely filed his Objections to Report and Recommendation (Docket No. 73). Defendants had fourteen days (plus three days pursuant to Fed. R. Civ. P. 6(d)) from the date they received Plaintiff's objections to file a response to the objections. As of March 1, 2010, no response had been filed by Defendants.
Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge." Moreover, this Court "shall make a de novo determination of those portions of the report which objection is made." Id. In United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted the requirements of 28 U.S.C. 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise. As the Peretz Court instructed, "to the extent de novo review is required to satisfy Article III concerns, it need not be exercised unless requested by the parties." Peretz, 501 U.S. at 939, 111 S.Ct. 2661 (internal citation omitted). Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251 ("Absent an objection or request for review by the defendant, the district court was not required to engage in any more formal review of the plea proceeding."); see also Peretz, 501 U.S. at 937-39, 111 S.Ct. 2661 (clarifying that de novo review not required for Article III purposes unless requested by the parties) . . . .
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Based on the objections filed in this case, the Court has conducted a de novo review of the record pursuant to 28 U.S.C. § 636(b).
The Court adopts and incorporates by reference the factual background as set forth in the Report and Recommendation on page 2 which references the prior Report and Recommendation issued in this case on November 12, 2007 (Docket No. 25). The Ninth Circuit remanded the case so the Court could consider the sole remaining claim "stemming from allegations that [Charlie] Anderson gave false testimony" at the trial regarding what the forest Service map did and did not indicate, what Anderson observed on November 24, 2004 and what State Exhibit A (photographs) showed and when photographs were taken.
Judge Williams determined that Defendants' motion for summary judgment should be granted on this final claim as the requisite elements for false statement or malicious prosecution (by the complaining witness Anderson who wrote the ticket charging Murray with a crime) could not be satisfied based on the facts taken in a light most favorable to Plaintiff. Plaintiff objects to the conclusion malice has not been established and requests a jury trial on the factual claims.
This review of the pending motions and the Report and Recommendation is undertaken with an eye on Ninth Circuit standards regarding pro se litigants. See Tucker v. Carlson, 925 F.2d 330 (9th Cir. 1991). The Court has construed the Plaintiffs' pleadings in the most favorable light, however, the Court reminds the Plaintiffs that pro se litigants are held to same procedural rules as counseled litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
In the Report and Recommendation, Magistrate Judge Williams correctly set forth the standard of review and correctly determined the false testimony allegations should be construed as an action for malicious prosecution. The elements of a malicious prosecution claim are undisputed:
(1) "that defendants prosecuted [plaintiff] with malice;" (2) "without probable cause," and (3) "that they did so for the purpose of denying [him] equal protection or another specific constitutional right." Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004). Additionally, the underlying criminal case must be terminated in the plaintiff's favor. Id. at 1068.
The last element has been satisfied as it is undisputed that the underlying criminal case was terminated in plaintiff's favor. It is the first, second and third elements that Plaintiff has not established in this case. This Court has previously held that there was no evidence of malice when dismissing the state law claim of malicious prosecution and this finding was confirmed by the Ninth Circuit. Murray v. State of Idaho, No. 07-36097, 2009 WL 528246, *4 (9th Cir. Feb. 19, 2009). Plaintiff argues that Anderson's false testimony is prima facie evidence of malice. The Court respectfully disagrees with Plaintiff. The record does not set forth any facts of malice on the part of Anderson towards Plaintiff and there is no evidence that Anderson cited Plaintiff with a ticket for an improper purpose. Rather, the record clearly establishes an unintentional, clerical error on the ...