Opinion
CIVIL ACTION NO. 4:18-CV-01629
10-01-2018
MINA BLAIR, Plaintiff, v. SAMUEL J. BURRAUNO, Defendant.
(BRANN, J.)
() REPORT AND RECOMMENDATION
Presently before the Court is a complaint seeking injunctive relief (Doc. 1) and a motion to proceed in forma pauperis (Doc. 2), submitted by pro se plaintiff Mina Blair (hereinafter referred to as "Blair"). Having conducted its statutory screening review of the complaint, the Court respectfully recommends that the motion to proceed in forma pauperis (Doc. 2) be GRANTED, but that the complaint (Doc. 1) be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2). I. BACKGROUND AND PROCEDURAL HISTORY
On August 16, 2018, Blair filed the instant complaint, which names Samuel Burrauno (hereinafter "Burruano") as the sole defendant. (Doc. 1). The same day, Blair also filed a motion to proceed in forma pauperis. (Doc. 1). Although the complaint is not entirely clear, Blair appears to assert violations of federal law arising from the initiation of eviction proceedings against her by Burruano, with respect to real property located at 65 Gratzmar Avenue in Renovo, Pennsylvania (the "Property"). (Doc. 1-1, at 13); Burruano v. Blair, Docket No. MJ-25303-LT-0000005-2018 (Clinton Cnty. Magisterial District Ct.). From what can be gleaned from the complaint, it appears that on June 10, 2016, as a result of defaulting on mortgage payments towards the Property, Blair executed a Deed in Lieu of Foreclosure (the "Deed") in favor of Burruano. (Doc. 1-1, at 1-4).
The Court notes that Blair has submitted copies of State Court records in support of her complaint. (Doc. 1-1). These records document the disposition of the following State Court cases: Burruano v. Blair, Docket No. 456-2018 (Clinton Cnty. C.C.P.); and Burruano v. Blair, Docket No. MJ-25303-LT-0000005-2018 (Clinton Cnty. Magisterial District Ct.). "Because under Rule 12(b)(6), courts may consider, in addition to the complaint, matters of public record and other matters of which a court may take judicial notice, and because the standards for dismissal for failing to state a claim under 28 U.S.C. § 1915(e) are the same as under a 12(b)(6) motion, the court may consider matters of which it may take judicial notice under 28 U.S.C. § 1915(e)." Porter v. Cancelmi, No. CIV.A. 04-1736, 2006 WL 3490589, at *3 (W.D. Pa. Dec. 4, 2006), aff'd, 318 F. App'x 48 (3d Cir. 2008) (internal citations omitted); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (Finding that under Rule 12(b)(6) the Court may consider "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice."). Accordingly, as these are all matters of public record, the Court takes judicial notice of these cases. Further, based on these documents, Plaintiff seemingly refers to Defendant's last name as "Burrauno" in error. As "Burruano" appears to be the most common spelling offered in previous State Court proceedings, as well as the records attached to the complaint, it is the one the Court chooses to use in the instant Report and Recommendation.
On February 1, 2018, Burruano served Blair with an eviction notice and gave her thirty (30) days to vacate the Property. (Doc. 1, at 5; Doc. 1-1, at 11). On February 7, 2018, Burruano filed a Notice to Quit the Property against Blair (the "Notice to Quit"), citing her failure to satisfy mortgage payments in the amount of $4,000. (Doc. 1, at 6; Doc. 1-1, at 10). Blair alleges, however, that there was an error in the Deed, and that Burruano filed the Notice to Quit after the Deed had already been executed. (Doc. 1, at 5-6). Burruano subsequently provided the Clinton County Magisterial District Court with the Notice to Quit on February 8, 2018, and Blair received notice of the same on February 12, 2018. (Doc. 1, at 6).
On March, 5, 2018, Burrano filed a Landlord-Tenant Complaint against Blair in the Clinton County Magisterial District Court, seeking possession of the Property. (Doc. 1-1, at 13); Burruano v. Blair, Docket No. MJ-25303-LT-0000005-2018 (Clinton Cnty. Magisterial District Ct.). The Magisterial District Judge entered judgment in favor of Burruano on March 28, 2018, to which Blair filed an appeal with the Clinton County Court of Common Pleas on April 18, 2018. (Doc. 1-1, at 16); Burruano v. Blair, Docket No. MJ-25303-LT-0000005-2018 (Clinton Cnty. Magisterial District Ct.). While the appeal remained pending, Blair alleges that the Property was put up for auction on July 21, 2018 (the "Auction"). (Doc. 1, at 5). During the Auction, which purportedly occurred without notice to her or her ex-husband, Blair claims that people entered and "ransacked" the Property. (Doc. 1, at 7). This seemingly caused her personal possessions to be lost or destroyed, and on July 25, 2018 Blair avers that she reported the Property had been broken into. (Doc. 1, at 5, 7).
Based on Blair's allegations, it is unclear whether her personal belongings were also subject to sale during the Auction, as opposed to stolen or damaged.
After a status conference was held on August 7, 2018, the Clinton County Court of Common Pleas dismissed Blair's appeal on August 8, 2018. (Doc. 1, at 7; Doc. 1-1, at 14). Blair appears to complain, however, that the Clinton County Court of Common Pleas did not provide her with proper notice of its disposition in favor of Burruano. (Doc. 1, at 7). Burruano subsequently requested an Order for Possession of the Property on August 9, 2018, which the Clinton County Magisterial District Court granted the same day. Burruano v. Blair, Docket No. MJ-25303-LT-0000005-2018 (Clinton Cnty. Magisterial District Ct.). The Order for Possession, which included a Notice for Blair to Vacate the Property by August 20, 2018, was served upon Blair on August 10, 2018. (Doc. 1-1, at 17, 19); Burruano v. Blair, Docket No. MJ-25303-LT-0000005-2018 (Clinton Cnty. Magisterial District Ct.).
Blair filed the instant complaint for injunctive relief on August 16, 2018, and appears to assert a federal cause of action pursuant to 42 U.S.C. § 1983. (Doc. 1, at 3). When liberally construed, Blair primarily complains of the loss of, or damage to, her unspecified personal belongings, and the lack of notice she received surrounding the Auction. (Doc. 1, at 4). Notably, Blair points out that she does not "want [the Property] back," and does not ask that any personal property be returned to her. (Doc. 1, at 4-5). Rather, she apparently requests an emergency injunction to review "[the] facts," the "cause of [the] Deed mistake," and the notice deficiencies surrounding the Auction and the state court action. (Doc. 1, at 5).
This matter is now before the Court pursuant to its statutory screening obligation under 28 U.S.C. § 1915(e)(2) to screen a complaint and dismiss it if it fails to state a claim upon which relief can be granted. II. STANDARD OF REVIEW
Under 28 U.S.C. § 1915A, the Court is obligated, prior to service of process, to screen a civil complaint brought in forma pauperis. See 28 U.S.C. § 1915(e)(2). The Court must dismiss a complaint if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii); Mitchell v. Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa. 2010); see also 28 U.S.C. § 1915A(b)(1). Upon performing this mandatory screening function, a district court applies the same standard applied to motions to dismiss under Rule 12(b)(6) of the FEDERAL RULES OF CIVIL PROCEDURE. Mitchell, 696 F. Supp. 2d at 471; Banks v. Cnty. of Allegheny, 568 F. Supp. 2d 579, 588 (W.D. Pa. 2008). Rule 12(b)(6) of the FEDERAL RULES OF CIVIL PROCEDURE authorizes a defendant to move to dismiss for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6).
The United States Court of Appeals for the Third Circuit has noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. Cnty of Allegheny, 515 F.3d 224 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Assoc'd. Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
In order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Indeed, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When ruling on a Rule 12(b)(6) motion, a trial court must assess whether a complaint states facts upon which relief can be granted, and should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. In addition to the facts alleged on the face of the complaint, the Court may also consider "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
With the aforementioned standards in mind, a document filed pro se is "to be liberally construed." Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Nonetheless, a pro se complaint is still subject to the pleading requirements as articulated in Rule 8(a) of the FEDERAL RULES OF CIVIL PROCEDURE, which requires a " showing that 'the pleader is entitled to relief, in order to give the defendant fair notice of what the...claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007)). However, the Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). III. DISCUSSION
A. BLAIR'S COMPLAINT IS SUBJECT TO DISMISSAL UNDER FED. R. CIV. P. RULE 8
As a preliminary matter, the Court recognizes that Blair filed the instant complaint using a form entitled "Complaint and Request for Injunction." (Doc. 1). Upon review of the vague and sparse allegations contained therein, Blair's complaint should be dismissed for the failure to state a claim as defined under Rule 8(a) of the FEDERAL RULES OF CIVIL PROCEDURE. Pursuant to Fed. R. Civ. P. 8(a)(2), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." "Each allegation must be simple, concise, and direct." Fed. R. Civ. P. 8(d)(1); Scibelli v. Lebanon Cnty., 219 F. App'x 221, 222 (3d Cir. 2007). Thus, dismissal under Rule 8 is also proper where a complaint "le[aves] the defendants having to guess what of the many things discussed constituted [a cause of action]," Binsack v. Lackawanna County Prison, 438 F. App'x 158, 160 (3d Cir. 2011), or where the complaint is so "rambling and unclear" as to defy response. Tillio v. Spiess, 441 F. App'x 109, 110 (3d Cir. 2011).
Here, notwithstanding the Court's liberal construction of the complaint as is necessary for pro se litigants, the instant complaint does not meet the pleading requirements of Rule 8. Notably, although Blair references "due process claims [and] procedural issues" as the basis for jurisdiction, she fails to clearly explain how Burruano violated any protected constitutional rights she possessed. As such, the Court is left to "guess what of the many things discussed constituted [a specific cause of action against Burruano]."Binsack, 438 F. App'x at 160. Further, the complaint would not provide any meaningful opportunity for Burruano to decipher or answer the allegations levied against him. See Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). Accordingly, Blair's complaint is subject to dismissal in its entirely.
Further, Blair apparently seeks an "emergency injunction" as her sole basis for relief. (Doc. 1, at 5). However, given the sparse allegations set forth in the complaint, it is difficult for the Court to ascertain what ongoing or prospective injury Blair specifically seeks to enjoin. See DeForte v. Blocker, No. 2:16-CV-113, 2017 WL 1102655, at *6 (W.D. Pa. Mar. 24, 2017), reconsideration denied, No. 2:16-CV-113, 2017 WL 1862213 (W.D. Pa. May 8, 2017) ("Federal case law is plain that a § 1983 plaintiff may obtain declaratory and/or prospective injunctive relief only where there is an on-going constitutional violation or imminent threat of constitutional harm.") (citing Celec v. Edin. Univ., 132 F. Supp. 3d 651, 668-69 (W.D. Pa. 2015)). Nonetheless, to the extent Blair seeks to enjoin the Auction, such relief was moot at the time she filed the instant civil rights action in federal court. See Fisher v. Goord, 981 F. Supp. 140, 168 (W.D.N.Y. 1997) ("A preliminary injunction cannot be issued based on past harm. The purpose of a preliminary injunction is to prevent future irreparable harm.") (emphasis in original). Further, insofar as Blair seeks to enjoin the eviction ordered for August 20, 2018, such relief may have already been rendered moot. See Bierley v. Abate, 661 F. App'x 208, 209 (3d Cir. 2016) (affirming that plaintiff's § 1983 action to enjoin state court eviction order was moot, as she was evicted prior to the Court's disposition of her claims). Notwithstanding the issue of mootness, however, the Court notes, without deciding, that it may also be precluded from granting such relief under the Anti-Injunction Act. See 28 U.S.C. § 2283. "The Anti-Injunction Act deprives federal district courts the ability to "grant an injunction to stay proceedings in a State court." Jung Yun v. Bank of Am., N.A., No. CV 3:16-2416, 2016 WL 7324554, at *5 (M.D. Pa. Dec. 16, 2016) (quoting 28 U.S.C. § 2283); see also Rhett v. Div. of Hous., Dep't of Cmty. Affairs, No. 14-5055, 2014 WL 7051787, at *3 (D.N.J. Dec. 12, 2014) ("[T]o the extent Plaintiff requests that this Court dismiss the eviction proceedings or order them transferred to this Court, the Anti-Injunction Act prohibits this Court from taking such action."). Thus, although Blair expressly requests an emergency injunction in her federal complaint, it is unclear whether she actually intends to seek such relief and what exact conduct she asks the Court to enjoin.
For the aforementioned reasons, the Court respectfully recommends the instant complaint be DISMISSED, as it falls well short of the pleading standards enumerated in Rule 8 of the FEDERAL RULES OF CIVIL PROCEDURE.
B. CLAIM BROUGHT UNDER 42 U.S.C. § 1983
Notwithstanding the pleading deficiencies under Rule 8 of the FEDERAL RULES OF CIVIL PROCEDURE, the Court will also address an alternative basis for dismissal. Indeed, upon liberally construing the complaint, it appears that Blair intends to bring a federal civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1, at 3). However, it is evident that Blair fails to plead a viable cause of action against Burruano for the purposes of 42 U.S.C. § 1983. (Doc. 1, at 3). Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. . . ."
Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). Thus, to bring a civil rights action under 42 U.S.C. § 1983, a plaintiff must allege a violation of a right secured by the Constitution or laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Allen v. Pennsylvania Soc. for Prevention of Cruelty to Animals, 488 F.Supp.2d 450, 462 (M.D. Pa. 2007).
The "under color of state law" element of § 1983 excludes from its reach "merely private conduct, no matter how discriminatory or wrongful." Blum v. Yaretsky, 457 U.S. 991, 1002 (1982). The Third Circuit Court of Appeals has also "consistently held that '[a] defendant in a civil rights action must have personal involvement in the alleged wrongs...'" Batts v. Giorla, 550 F. App'x 110, 112 (3d Cir. 2013) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). "Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity." Rode, 845 F.2d at 1207.
Here, although Blair references "due process claims [and] procedural issues" as the basis for jurisdiction, she fails to allege Burruano deprived her of any specific Constitutional right. (Doc. 1, at 3). Indeed, Blair fails to provide any non-conclusory, well-pled factual allegations of actionable misconduct attributable to Burruano that would allow for a reasonable inference of a cause of action to be drawn from it. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (holding that a plaintiff must provide some factual grounds for relief, which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."). Further, even when liberally construing Blair's basis for jurisdiction as asserting a Due Process Claim under the Fourteenth Amendment, she nonetheless fails to plausibly establish that Burruano constitutes a "state actor" as required for liability under 42 U.S.C. § 1983. Section 1983 provides a means to "redress violations of federal law by state actors." Eubanks v. Young Women's Christian Ass'n, No. 1:CV-13-CV-2050, 2013 WL 4781033, at *2 (M.D. Pa. Sept. 5, 2013) (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002)). Under certain limited circumstances, a private individual may be liable under § 1983 if his or her conduct is so closely related to governmental conduct that it can be fairly viewed as conduct of the state itself. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1142-43 (3d Cir. 1995) (detailing the various tests used to analyze whether private conduct may be treated as state action). Based on the allegations in the complaint, however, it is evident that Burruano is a private individual. Indeed, even drawing all reasonable inferences in the most favorable light to Blair, the complaint contains no allegations that Burruano acted under the color of state law for the purposes of § 1983. See Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005). Thus, Blair has both failed to demonstrate that Burruano deprived her of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988).
Although not expressly raised by Blair, the Fourteenth Amendment to the United States Constitution provides, in pertinent part, that a state shall not "deprive any person of life, liberty, or property, without due process of law; ..." U.S. CONST. AMEND. XIV, § 1; see also Evans v. Secretary of Pennsylvania Department of Corrections, 645 F.3d 650, 658 (3d Cir. 2011) (noting that the Due Process Clause of the Fourteenth Amendment has both "substantive and procedural components").
Although not entirely clear, it appears from the complaint, and documents attached thereto, that Burruano either acted as Blair's landlord or mortgagor.
Blair's pleading is also deficient under Section 1983 insofar as she fails to sufficiently allege Burruano's personal involvement in the alleged wrongs. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
Accordingly, it is respectfully recommended that Blair's § 1983 federal civil rights claim against Burruano alternatively be DISMISSED for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). IV. LEAVE TO AMEND
The Court acknowledges that the Rooker-Feldman doctrine, the doctrine of res judicata, and the doctrine of Younger abstention may also divest this Court of subject-matter jurisdiction to review Blair's complaint. However, given the pleading deficiencies in the complaint, it is difficult for the Court to discern the precise nature of Blair's lawsuit, and thus whether these doctrines apply.
The Court recognizes that pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed with prejudice, see Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 253 (3d Cir. 2007), unless granting further leave to amend would be futile or result in undue delay. Alston v. Parker, 363 F.3d 229, 235-36 (3d Cir. 2004). As the complaint in its current form does not clearly set forth any claims or comprehensible factual averments, dismissal is warranted. However, out of an abundance of caution, and to preserve Blair's rights as a pro se litigant, the Court will allow her to file a single, unified, legible complaint setting forth factual allegations and legal claims in a manner that can be reviewed by the Court and, if necessary, answered by Burruano. The amended complaint must be a pleading that stands by itself without reference to the original complaint. Young v. Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa. 1992) (emphasis added). The amended complaint must also establish the existence of actions taken by Burruano which have resulted in specific constitutional deprivations. Further, the amended complaint must be "simple, concise, and direct" as required by Rule 8(d)(1) of the FEDERAL RULES OF CIVIL PROCEDURE. It should also be limited to those claims that arise out of the same transaction or occurrence or series of transactions or occurrences as averred, albeit vaguely, in the original complaint. Failure to file an amended complaint in accordance with the aforementioned requirements may result in the dismissal of this action in its entirety. Lastly, to the extent Blair seeks to assert a civil rights action, the amended complaint must resolve the shortcomings under 42 U.S.C. § 1983 as identified by the Court in this Report and Recommendation. V. RECOMMENDATION
Based on the foregoing, the Court recommends that the complaint (Doc. 1) should be DISMISSED, as it neither complies with the pleading requirements of Fed R. Civ. P. Rule 8 nor states a claim under 42 U.S.C. § 1983. Specifically, the Court recommends:
1. That the Court DISMISS Plaintiff's complaint (Doc. 1) WITHOUT PREJUDICE for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii);
2. Plaintiff be given thirty (30) days to amend her complaint upon the disposition of this Report and Recommendation, that legibly reasserts her claims in accordance with Rule 8(a) and 8(d)(1) OF THE FEDERAL RULES OF CIVIL PROCEDURE;
3. That the Court GRANT Plaintiff's Motion for In Forma Pauperis (Doc. 2); and
4. The matter be remanded to the undersigned for further proceedings.
Dated: October 1, 2018
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated October 1, 2018. 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: October 1, 2018
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge