IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

BONNIE JEAN GONZALES 

and ORLANDO GONZALES, 

Plaintiffs, 

v. 

DAVID SCHUTT, 

Defendant. 

AIKEN, Chief Judge: 

Case No~ 1:14-cv-01347-CL 

0 R D E R 

Magistrate Judge Clarke filed his Findings and Recommendation 

on May 21, 2015. Magistrate Judge Clarke recommends that defendant 

David Schutt's motion for summary judgment be granted, finding that 

absolute prosecutorial immunity precluded plaintiffs Bonnie and 

Orlando Gonzales' claims. The matter is now before this Court 

pursuant to 28 U.S.C. § 636(b) (1) (B) and Fed. R. Civ. P. 72 (b). 

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When either party objects to any portion of a magistrate 

judge's Findings and Recommendation, the district court must make 

a de novo determination of that portion of the magistrate judge's 

report. 28 U.S.C. § 636(b) (1) (C); McDonnell Douglas Corp. v. 

Commodore Bus. Machs., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981), 

cert. denied, 455 U.S. 920 (1982). 

On June 2 0, 2 015, plaintiffs filed timely objections. That 

same day, plaintiffs also moved for an order certifying the 

following question to the Oregon Supreme Court: "When a public 

official submits a resignation after the filing of recall petitions 

with the Secretary of State, does that resignation take effect 

immediately upon the certification of sufficient signatures to 

require a recall election; or may the official make the resignation 

effective at any date after such certification as he may choose, 

and thereby avoid either an election or removal from office until 

his chosen date?" Pls.' Mot. Certification 2. 

Regarding plaintiffs' objections, the Court reviews this case 

de novo and agrees with Magistrate Judge Clarke's analysis and 

conclusions. Critically, as both established precedent and the 

Findings and Recommendation make clear, the title of the officer 

performing the prosecutorial act is irrelevant: "[i]mmunity 

attaches to the nature of the function performed, not the identity 

of the actor who performed it." Lacey v. Maricopa Cnty., 693 F.3d 

896, 912-13 (9th Cir. 2012) (citations omitted); see also Findings 

& Recommendation 7 (May 21, 2015) ("[a] person with lacking or 

questionable title is not barred from invoking prosecutorial 

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immunity [as] courts have extended the protections of absolute 

prosecutorial immunity to non-prosecutors") (collecting cases). 

Accordingly, plaintiffs' objections -which are based oh the flawed 

premise that "the immunity defense is available only to 

prosecutors"- are unavailing. Pls.' Objections 4. 

Concerning plaintiffs' motion for certification, the proposed 

question fails to meet the criteria articulated in Western 

Helicopter Servs., Inc. v. Rogerson Aircraft Corp., 311 Or. 361, 

811 P.2d 627 (1991), and therefore does not comply with LR 83-15. 1 

Amongst other issues, the proposed question is not "one whose 

answer may determine the cause"- i.e. resolving this question does 

not "have the potential to determine at least one claim in the 

case." Western Helicopter Servs., 311 Or. at 365. As denoted above, 

whether defendant was the District Attorney prior to August 31, 

2012, does not forestall the application of absolute immunity, as 

the "decision to appoint a special prosecutor" is a protected 

function. Lacey, 693 F.3d at 928-34. Moreover, plaintiffs' question 

misstates the undisputed facts; the Court is not confronted with a 

situation wherein an official offered his resignation after a 

completed recall petition was submitted but before it was 

certified. Rather, the uncontravened evidence of record 

1 While not dispositive, the timing of plaintiffs' motion 

subverts the judicial process; they obtained an adverse ruling on 

the merits and sought an extension to file objections before 

renewing their request for certification. See Gonzales v. Schutt, 

2015 WL 365696, *1 (D.Or. Jan. 27, 2015) (denying plaintiffs' 

previcius motion for certification raised pursuant to defendant's 

motion to dismiss) 

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demonstrates that a sufficient number of recall signatures were not 

filed with the Secretary of State until after defendant resigned. 

Second Am. Compl. ~~ 4-5; Pls.' Resp. to Mot. Summ. J. 4 (citing 

Force Decl. Exs. 1-2); Findings & Recommendation 2 (May 21, 2015). 

As a result, the Secretary of State rescinded the recall notice as 

moot and the plain language of Article II, Section 18, of the 

Oregon Constitution was never invoked. Van Meter Decl. Exs. B-D. 

In sum, this Court ADOPTS the Magistrate's Findings and 

Recommendation (doc. 36) in its entirety; defendant's motion for 

summary judgment (doc. 25) is GRANTED. Further, plaintiffs' motion 

for certification (doc. 40) is DENIED. This case is DISMISSED. 

IT IS SO ORDERED. 

Dated this day of July 2015. 

United States District Judge 

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