Opinion
CIVIL ACTION NO. 3:18-CV-1437
07-19-2019
DEMETRIUS BAILEY, et al., Plaintiffs v. LIBRARY ASSISTANT JURNAK, et al., Defendants
(BRANN, J.)
() REPORT AND RECOMMENDATION
Presently before the Court is a document filed by pro se prisoner-Plaintiff Demetrius Bailey ("Bailey"), entitled "Motion for Relief / Motion for Court Order / Injunction Hearing." (Doc. 9). For the reasons stated herein, it is recommended that Bailey's motion be denied. I. BACKGROUND AND PROCEDURAL HISTORY
At the time Bailey filed this motion, he was incarcerated at the State Correctional Institution, Dallas ("SCI-Dallas") within the Pennsylvania Department of Corrections ("DOC"). (Doc. 10, at 2).
Bailey, along with three-other co-Plaintiffs, filed the original complaint in this matter in the Luzerne County Court of Common Pleas on June 14, 2018. (Doc. 1-1). In the complaint, Bailey brought claims against several DOC employees ("Defendants") for alleged violations of his rights under the 1st, 8th, and 14th Amendments to the United States Constitution. (Doc. 1-1). On July 19, 2018, Defendants filed a Notice of Removal pursuant to 28 U.S.C. § 1446. (Doc. 1). Thereafter, Defendants filed a motion to dismiss the original complaint on June 24, 2018. (Doc. 2). While Defendants' motion to dismiss was pending, Bailey filed the present motion, liberally construed by the Court as a motion for preliminary injunction, along with a supporting brief on October 15, 2018. (Doc. 9; Doc. 10).
Richard Sutton, Gerald Wiggins, and Thomas Johnson were also named as co-Plaintiffs in the original complaint. (Doc. 1-1). Notably, these parties are not included in, and have not signed, the instant motion. (Doc. 9).
A document filed pro se is "to be liberally construed." Estelle v. Gamble, 429 U.S. 97, 106 (1976); see generally Mala v. Crown Bay Arena, Inc., 704 F.3d 239, 244-46 (3d Cir. 2013) (discussing a court's obligation to liberally construe pro se pleadings and submissions, especially when the pro se litigant is imprisoned).
The first ground for which Bailey seeks injunctive relief relates to the Defendants' alleged denial of his special diet. (Doc. 9, at 1). Bailey asserts that a gastroenterologist recommended his placement on a special GERD diet, which calls for "no red sauce, onion, peppers, etc. . . . ." (Doc. 9, at 1). Bailey further claims that he cannot eat the food prepared "in the regular kitchen," as it causes him to experience stomach pain, vomiting, rectal bleeding, irritated bowels, and general digestion difficulties. (Doc. 9, at 1). Bailey alleges, however, that a clinical dietician refused to provide him with his special diet on August 9, 2018 in retaliation for filing the instant lawsuit. (Doc. 9, at 1; Doc. 10, at 1). According to Bailey, Defendants' refusal to accommodate his dietary needs, despite knowing of the health consequences it would cause, violates his Eighth Amendment rights. (Doc. 10, at 1). Bailey additionally states that he grieved the denial of his special diet on August 11, 2018, which purportedly went unanswered. (Doc. 9, at 1). Bailey also filed a "Motion for Court Order" on May 16, 2019, which, when liberally construed, indicates that he still has not received his special GERD diet. (Doc. 30, at 1).
It is unclear from this motion whether Bailey's allegations pertain to the food he received at SCI-Dallas, or some other institution.
Bailey presumably refers to gastroesophageal reflux disease.
In deference to Bailey's pro se status, the Court considers this filing (Doc. 30) to the extent that it clarifies Bailey's claims for injunctive relief set forth in the instant motion. (Doc. 9; Doc. 10).
The second ground for which Bailey seeks relief relates to prison officials tampering with, and generally frustrating his ability to receive, legal mail at SCI-Dallas. (Doc. 9, at 1-2). Specifically, Bailey asserts that he must pass through a "security control room" to obtain his legal mail. (Doc. 9, at 1). During this process, prison officials place him and other inmates in restraints and allegedly subject them to harassment, abuse, and excessive physical force. (Doc. 9, at 1). Bailey further alleges that prison officials read and make copies of his legal mail, which constitutes a violation of several state and federal laws, as well as the attorney-client privilege. (Doc. 9, at 1). Bailey asserts that the "unnecessary and wanton infliction of pain" while in the security control room constitutes an Eighth Amendment violation. (Doc. 10, at 1-2). Bailey also contends that prison officials opening and reading his legal mail violates the First Amendment right of access to the courts. (Doc. 10, at 1-2).
To date, Defendants have not responded to Bailey's motion. As the time for filing responsive briefs has passed, this motion is ripe for review. II. DISCUSSION
A. PRELIMINARY INJUNCTION STANDARD
Preliminary injunctive relief is extraordinary in nature and should issue in only limited circumstances. See Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994); see also Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) ("[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.") (citation omitted). "[T]he Court of Appeals for the Third Circuit has observed that 'upon an application for a preliminary injunction to doubt is to deny.'" Susquehanna Commercial Fin., Inc. v. Vascular Res., Inc., No. 1:09-CV-2012, 2010 WL 95127, at *4 (M.D. Pa. Jan. 6, 2010) (quoting Madison Square Garden Corp. v. Braddock, 90 F.2d 924, 927 (3d Cir. 1937)). Moreover, issuance of such relief is at the discretion of the trial judge. Merrill Lynch, Pierce, Fenner & Smith Inc. v. Chamberlain, 145 F. Supp. 2d 621, 625 (M.D. Pa. 2001).
In determining whether to grant a motion seeking preliminary injunctive relief, courts in the Third Circuit consider the following four factors: "(1) likelihood of success on the merits; (2) irreparable harm resulting from a denial of the relief; (3) the harm to the non-moving party if relief is granted; and (4) the public interest." United States v. Bell, 238 F. Supp. 2d 696, 699 (M.D. Pa. 2003); see also Bieros v. Nicola, 857 F. Supp. 445, 446 (E.D. Pa. 1994) ("The standards for a temporary restraining order are the same as those for a preliminary injunction."). It is the moving party who bears the burden of satisfying these factors. Bell, 238 F. Supp. 2d at 699. "Only if the movant produces evidence sufficient to convince the trial judge that all four factors favor preliminary relief should the injunction issue." Opticians Ass'n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 192 (3d Cir. 1990).
"[A]n essential prerequisite to the grant of a preliminary injunction is a showing by the movant of irreparable injury pendente lite if the relief is not granted." United States v. Pennsylvania, 533 F.2d 107, 110 (3d Cir. 1976). A preliminary injunction "may not be used simply to eliminate a possibility of a remote future injury." Holiday Inns of Am., Inc. v. B&B Corp., 409 F.2d 614, 618 (3d Cir. 1969). "[T]he irreparable harm must be actual and imminent, not merely speculative." Angstadt ex rel. Angstadt v. Midd-West Sch., 182 F. Supp. 2d 435, 437 (M.D. Pa. 2002). "[M]ore than a risk of irreparable harm must be demonstrated. The requisite for injunctive relief has been characterized as a 'clear showing of immediate irreparable injury,' or a 'presently existing actual threat ....'" Continental Grp., Inc. v. Amoco Chems. Corp., 614 F.2d 351, 359 (3d Cir. 1980) (citations omitted). "A preliminary injunction cannot be issued based on past harm. The purpose of a preliminary injunction is to prevent future irreparable harm." Fisher v. Goord, 981 F. Supp. 140, 168 (W.D.N.Y. 1997) (emphasis in original).
Pendente lite is a Latin term meaning "while the action is pending" or "[d]uring the proceeding or litigation." Black's Law Dictionary 1154 (7th ed.1999).
Moreover, "[t]he 'requisite feared injury or harm must be irreparable — not merely serious or substantial,' and it 'must be of a peculiar nature, so that compensation in money cannot atone for it.'" ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987) (quoting Glasco v. Hills, 558 F.2d 179, 181 (3d Cir. 1977)). "In order to demonstrate irreparable harm the plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial. The preliminary injunction must be the only way of protecting the plaintiff from harm." Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989) (emphasis added). "The key word in this consideration is irreparable .... The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm." Sampson v. Murray, 415 U.S. 61, 90 (1974) (emphasis in original).
Further, "[a] party seeking a mandatory preliminary injunction that will alter the status quo bears a particularly heavy burden in demonstrating its necessity." Acierno v. New Castle Cnty., 40 F.3d 645, 653 (3d Cir. 1994) (citing Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980)). It follows that "[m]andatory injunctions should be used sparingly." Robertson v. Samuels, 2014 WL 347007, at *5 (M.D. Pa. Jan. 30, 2014) (citing United States v. Price, 688 F.2d 204, 212 (3d Cir. 1982)). "Thus, a request for some form of mandatory proactive injunctive relief in the prison context 'must always be viewed with great caution because judicial restraint is especially called for in dealing with the complex and intractable problems of prison administration.'" Robertson, 2014 WL 347007, at *5 (quoting Goff v. Harper, 60 F.3d 518 (8th Cir. 1995)).
B. DENIAL OF BAILEY'S SPECIAL DIET TRAY
When liberally construed, Bailey's motion first requests that the Court direct prison officials to provide him with meals that comply with his special dietary needs. (Doc. 9; Doc. 10). Claims against prison officials regarding the provision of a medically improper diet are analyzed pursuant to the Eighth Amendment deliberate indifference standard. See Atwell v. Lavan, 557 F. Supp. 2d 532, 552-53 (M.D. Pa. 2008); see also Goenaga v. MacDonald, No. 3:14-CV-02496, 2017 WL 1197882, at *4-5 (M.D. Pa. Feb. 14, 2017) (report and recommendation adopted and modified on other grounds 2017 WL 1178072, (M.D. Pa. Mar. 30, 2017)) (analyzing prisoner-plaintiff's allegation that prison officials failed to provide him with "an adequate diabetic-tailored food tray" under Eighth Amendment deliberate indifference test). "The Eighth Amendment prohibits 'unnecessary and wanton infliction of pain,' which includes 'deliberate indifference to serious medical needs of prisoners.'" Dennis v. Jensen, No. 4:10-CV-1486, 2013 WL 2245144, at *3 (M.D. Pa. May 20, 2013) (quoting Estelle v. Gamble, 429 U.S. 97, 103-04 (1976)). Thus, to succeed on an Eighth Amendment medical needs claim, a plaintiff must demonstrate "(i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need." Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003).
As to the element of deliberate indifference in this context, a plaintiff must show that a prison official knowingly disregarded an excessive medical risk. Specifically, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Further, "[d]eliberate indifference may be manifested by an intentional refusal to provide medical care, delayed medical treatment for non-medical reasons, a denial of prescribed medical treatment, or a denial of reasonable requests for treatment that results in suffering or risk of injury." Beckett v. Dept. of Corr., 2011 WL 4830787, at * 11 (M.D. Pa. Oct. 12, 2011). Given this scienter requirement, "[m]ere medical malpractice, negligence, and courses of treatment inconsistent with the desires of the prisoner . . . do not constitute deliberate indifference to serious medical needs." Lopez v. Corr. Med. Servs., Inc. , 499 F. App'x 142, 146 (3d Cir. 2012) (citing Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004)).
Here, Bailey has not demonstrated that he will suffer irreparable harm from a denial of injunctive relief. Bailey argues that refusing to provide him with the recommended GERD diet has caused severe stomach pain, digestive issues, and "major health problems." (Doc. 9; Doc. 10; Doc. 30). However, as discussed supra, "irreparable harm" is not "merely serious or substantial harm." See ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987). Further, despite making these claims, Bailey has failed to provide any medical evidence in support of them. Nor has Bailey alleged that every meal, even if prepared in the "regular kitchen," fails to conform to his recommended dietary restrictions. Simply stated, Bailey has failed make a clear showing that the alleged denial of his medically recommended GERD special diet places him in danger of "immediate irreparable injury." See Continental Grp., Inc. v. Amoco Chems. Corp., 614 F.2d 351, 359 (3d Cir. 1980); see also Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992) ("In order to demonstrate irreparable harm the plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial."). As such, it is recommended that Bailey's motion for preliminary injunctive relief regarding his special diet be DENIED.
As Bailey fails to meet the requisite "irreparable harm" element for injunctive relief, the Court declines to consider whether he meets the remaining three elements. See Karpov v. Karpov, 555 F. App'x 146, 148 (3d Cir. 2014) ("As [Plaintiff] has the burden to establish every element of the four-part test for determining whether a preliminary injunction should be granted, her failure to show immediate irreparable injury alone establishes that she is not entitled to a preliminary injunction."); accord Harper v. Corizon, No. CIV.A. 14-639, 2015 WL 158798, at *3 (E.D. Pa. Jan. 12, 2015).
C. MAIL PROCEDURES AT SCI-DALLAS
Bailey also seeks a preliminary injunction to prevent unnamed prison officials from opening his legal mail, filing retaliatory misconducts against him, and "interfering with [his] court access and attorney-client communications . . . ." (Doc. 9, at 1; Doc. 10, at 2). Specifically, Bailey complains that DOC Secretary, John Wetzel, ordered prison officials at SCI-Dallas "to open court legal mail and copy and read the original documents and then give prisoners photocopies of their legal documents . . . ." (Doc. 9, at 1). When liberally construed, these allegations appear to reference a new DOC mail policy, of which this Court takes judicial notice. As explained by a sister court within this Circuit:
See https://www.cor.pa.gov/Initiatives/Pages/FAQ-New-Procedures.aspx (last visited July 18, 2019).
That policy . . . requires all inmate legal mail to be opened and copied in front of the inmate. The inmate is then presented with the copy and the original is retained by the prison for fifteen days before being destroyed. Although that policy has yet to be addressed in a published opinion, at least one court in this district has held that the policy serves a legitimate penological interest in that it is a "common sense response to the introduction of contraband into the prisons" through the mail. See Kinnard v. Pa. Dept. of Corrections, No. 2:18-cv-298, ECF No. 19 (W.D. Pa. Sep. 17, 2018) (denying a request for TRO in connection with the new mail procedure). See also Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S. 318, 328-29 (2012) (noting that prison policies, including "reasonable search policies to detect and deter the possession of contraband," will not violate an inmate's constitutional rights if they are "reasonably related to legitimate penological interests").
Calipo v. Wolf, No. CV 18-320, 2018 WL 7412835, at *5 (W.D. Pa. Nov. 21, 2018), report and recommendation adopted, No. 1:18-CV-320, 2019 WL 858035 (W.D. Pa. Feb. 22, 2019).
Further, to show a cognizable injury in a First Amendment access to the courts claim, "the inmate must 'demonstrate that the alleged shortcomings . . . hindered his efforts to pursue a legal claim.'" Oliver v. Fauver, 118 F.3d 175, 177-78 (3d Cir. 1997) (quoting Lewis v. Casey, 518 U.S. 343, 351 (1996)).
Thus, as presented, Bailey has not demonstrated a reasonable possibility of success on the merits of his access to the courts claim. Specifically, Bailey does not allege, and provides no supporting evidence which indicates, that the opening of his legal mail was not related to a legitimate penological interest or hindered the pursuit of a nonfrivolous claim. See Oliver, 118 F.3d at 177-78; Calipo, 2018 WL 7412835, at *5; see also Booze v. Wetzel, No. 1:12-CV-1307, 2012 WL 6137561, at *6 (M.D. Pa. Nov. 16, 2012) ("[T]he bare allegation that some item of [inmate] mail was opened, without more, does not establish a likelihood of success on the merits [on an access to the courts claim] for this inmate."). Nor does Bailey show that the mail policy of which he complains caused him to suffer injury of a "peculiar nature, so that compensation in money cannot atone for it." See ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987). As such, it is recommended that the Court Bailey's request for preliminary injunctive relief on this ground be DENIED.
Bailey also generally alleges that prison officials issued him two retaliatory misconducts for challenging these mail procedures. (Doc. 10, at 1, 3-5). Insofar as such conduct allegedly chilled the exercise of Bailey's 1st Amendment rights, or otherwise violated the 14th Amendment as he suggests, he has not clearly shown that a preliminary injunction would "prevent future irreparable harm" in this case. Fisher v. Goord, 981 F. Supp. 140, 168 (W.D.N.Y. 1997) (emphasis in original). Accordingly, to the extent that Bailey's motion seeks to enjoin the filing of retaliatory misconducts, such a request should be denied.
D. SECURITY CONTROL ROOM COMPLAINTS
Finally, when liberally interpreted, Bailey's motion seeks to enjoin unnamed prison officials from applying physical force in the "security control room" when he goes to obtain his legal mail. (Doc. 9, at 1). Bailey alleges that, upon entering the security control room at SCI-Dallas, guards harass, abuse, and threaten inmates. (Doc. 9, at 1). Bailey also complains that requiring inmates to be placed in handcuffs to acquire their legal mail is unreasonable, punitive, and in violation of the 8th Amendment. (Doc. 9, at 2; Doc. 10, at 1). Further, such a practice allegedly allows prison officials to use "their job as a weapon to abuse their authority." (Doc. 9, at 1-2).
The allegations of force used by unspecified prison officials against Bailey while he attempts to obtain his legal mail includes: harassment, abuse, threats, and physically restraining inmates via handcuffs, which in combination amounts to excessive force violative of the Eighth Amendment. (Doc. 9, at ¶ 2). Bailey does not specify the relief he seeks but based on the allegations the Court construes Bailey to seek to enjoin the prison officials from applying physical force to him while he is inside the "security control room." --------
At the outset, insofar as Bailey complains of threats made by prison guards while in the security control room, such conduct is generally not actionable under the constitution. See Gannaway v. Berks County Prison, 439 F. App'x 86 (3d Cir. 2011) (a claim of verbal harassment does not constitute an Eighth Amendment violation); MacLean v. Secor, 876 F.Supp. 695, 698-99 (E.D. Pa. 1995) ("It is well-established that verbal harassment or threats . . . will not, without some reinforcing act accompanying them, state a constitutional claim."). Further, the use of physical restraints, such as handcuffs, does not constitute an Eighth Amendment violation "when there is reasonable justification for their use and prison officials take care to insure inmate safety." Pew v. Harris, No. 3:12-CV-01984, 2017 WL 6997335, at *4 (M.D. Pa. Nov. 9, 2017), report and recommendation adopted in part, No. 3:12-CV-01984, 2018 WL 487845 (M.D. Pa. Jan. 19, 2018) (collecting cases); see also Merritt v. Gullo, No. 5:14-CV-5528, 2017 WL 1150632, at *4 (E.D. Pa. Mar. 28, 2017) ("The Eighth Amendment's prohibition of 'cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort 'repugnant to the conscience of mankind.'") (citing Hudson v. McMillian, 503 U.S. 1, 9-10 (1992)). Moreover, upon evaluating whether a prison official's use of force was unconstitutionally excessive, "the Court must determine whether the 'force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'" Abdullah v. Seba, 658 F. App'x 83, 85 (3d Cir. 2016) (citing Young v. Martin, 801 F.3d 172, 180 (3d Cir. 2015). As such, "[n]ot every push or shove . . . violates a prisoner's constitutional rights." See Hudson, 503 U.S. at 9-10.
Here, Bailey alleges that, before being able to acquire legal mail, prison officials forcibly search inmates and then push them against the security control room wall to facilitate their placement in handcuffs. (Doc. 9, at 1). However, Bailey fails to show that the application of such force is more than de minimis, or otherwise done maliciously without penological purpose. See Abdullah, 658 F. App'x at 85; Merritt, 2017 WL 1150632, at *4. Further, while Bailey generally complains that being placed in handcuffs is a "disturbing" and "excessive" requisite to obtaining his legal mail, he has not clearly established that it constitutes an "unnecessary infliction of pain." See Whitley, 475 U.S. at 320. Additionally, in evaluating excessive force claims under the Eighth Amendment, courts generally afford prison officials "wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Whitley, 475 U.S. at 321-22; see also Abraham v. Danberg, 322 F. App'x 169, 170 (3d Cir. 2009) ("Because of the intractable problems of prison administration, a request for injunctive relief in the prison context must be viewed with considerable caution.") (citing Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995)).
Accordingly, at this stage, Bailey has not shown a likelihood of success on the merits of his excessive force claim—either with respect to having to proceed through the security control room or be placed in handcuffs to acquire his mail under DOC policy. Further, Bailey has not demonstrated that enjoining these alleged practices will cause him to endure the type of harm "which cannot be redressed by a legal or an equitable remedy following a trial." Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989); see also Mathis v. Dauphin Cnty. Prison, No. 3:CV-12-1317, 2012 WL 3960455, at *4, 7 (M.D. Pa. Aug. 6, 2012) report and recommendation adopted 2012 WL 3960421 (M.D. Pa. Sept. 10, 2012) (finding that an inmate may seek monetary damages from state prison officials pursuant to 42 U.S.C. § 1983 based on officials' Eighth Amendment violations). Based on the above, Bailey has not met his burden of showing that all four factors favor preliminary relief. See Opticians Ass'n of America v. Independent Opticians of America, 920 F.2d 187, 192 (3d Cir. 1990); U.S. v. Bell, 238 F.Supp.2d 696, 699 (M.D. Pa. 2003); see also Millhouse v. Fasciana, 721 F. App'x 109, 111 (3d Cir. 2018) ("The failure to establish any element ... renders a preliminary injunction inappropriate.") (quoting Ferring Pharms., Inc. v. Watson Pharms., Inc., 765 F.3d 205, 210 (3d Cir. 2014)). As such, it is recommended that the Court DENY preliminary injunctive relief for this ground. III. RECOMMENDATION
Based on the foregoing, it is recommended that the Bailey's filing, construed as a Motion for a Preliminary Injunction (Doc. 9), be DENIED. Dated: July 19, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated July 19, 2019.
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.Dated: July 19, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge