Opinion
2:20-CV-00026-WSH
11-23-2021
CHAUNCEY D. CHANDLER, Plaintiff, v. OFFICER DANIEL MCEVOY, AND DISTRICT ATTORNEY KARA RICE, Defendants.
REPORT AND RECOMMENDATION
Cynthia Reed Eddy Chief United States Magistrate Judge
I. RECOMMENDATION
This civil action was initiated pro se by Plaintiff Chauncey D. Chandler against Daniel McEvoy, a law enforcement officer for the Sharon Police Department (“Officer McEvoy”), and Kara Rice, a district attorney for Mercer County, Pennsylvania (“Attorney Rice”) for alleged civil rights violations.
Before the Court for consideration are the following:
1. A motion to dismiss for failure to state a claim or alternatively for a more definite statement by Defendant Daniel McEvoy (ECF No. 50); and
2. A motion to dismiss for failure to state a claim by Defendant Kara Rice (ECF No. 53).
While a briefing order was entered on June 8, 2021 (ECF No. 55) allowing Plaintiff until July 15, 2021 to respond, Plaintiff has not responded to either motion and therefore the motions will be decided without the benefit of his response. The Court has subject matter jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claim under 28 U.S.C. § 1367.
For the following reasons, it is respectfully recommended that Officer McEvoy's motion to dismiss (ECF No. 50) be granted and Plaintiff's claim of defamation be dismissed with prejudice, and his Fourth Amendment excessive force, false arrest and false imprisonment claims be dismissed without prejudice and Plaintiff be permitted to file an amended complaint to include facts supporting those claims; and Attorney Rice's motion to dismiss (ECF No. 53) be granted and all claims against Attorney Rice be dismissed with prejudice.
Because it is recommended that Officer McEvoy's motion to dismiss be granted, no recommendation is made on his alternative motion for a more definite statement.
II. REPORT
a. Background
Plaintiff's claims have already been subjected to a primary round of motions to dismiss. While Plaintiff did not originally name Attorney Rice as a defendant in this matter, Mercer County argued in its motion to dismiss that to the extent that Plaintiff intended to name Attorney Rice as a defendant, she was entitled to prosecutorial immunity. The Court agreed and found that to the extent that Plaintiff intended to name Attorney Rice as a defendant, she was entitled to absolute prosecutorial immunity for her role in prosecuting Plaintiff's bond revocation proceedings and any claims that Plaintiff attempted to assert against her were dismissed with prejudice. (ECF No. 41 at 3 n.1).
The court further allowed Plaintiff to file an amended complaint to “add the proper parties to this lawsuit or to add cognizable claims.” (ECF No. 41 at 4). Plaintiff thereafter filed an amended complaint naming Officer McEvoy and Attorney Rice as Defendants and alleging in toto as follows:
“Defamation of charchter(sic)” because I was in newspaper after I told “them” I didn't do it. 8th amendmen(sic) for the unsuall(sic) conduct officer use when I two hand bahind(sic) my back, that officer is Daniel McEvoy for Sharon Police, false because both x's I was free of all charges I was charge with both case no x-164843 11/18/2018 an(sic) 7/31/2019 Case no MJ35202 NT0000456 2019[.] This was a
biais(sic) arrest because I won the first case McEvoy Daneil(sic) charge me with, an(sic) for D.A. Kara Rice who acted as D.A. n(sic) my case failed to give me Brady . . . [incomprehensible] . . . the 8th amendment cruel an[d] unusual [punishment] Officer perform police [brutality] on Plaintiff, false imprison[n]ment the Plaintiff spent like 22 months n(sic) jail an(sic) in either case there was no conviction on the charges filed against him in 7/31/2019 case no MJ35202MNT000046 or 11/18/2018 case no 164843. An(sic) the D.A. failed to give Brady mater[ia]l which violates due process.... [Officer McEvoy] showed police brut[ali]ty when I was handcuff[ed] in back seat snatch me out an[d] put his finger threw the cuff an[d] I'm face down on the road as he force down on my back jawbone trying to break it two officer was(sic) on the [scene] don't [remember] names.(ECF No. 45 at 3-5).
The court will interpret Plaintiff's amended complaint as stating a due process violation against Attorney Rice for withholding “Brady” or exculpatory evidence during the pendency of her and/or Mercer County District Attorney's Office's criminal prosecution against Plaintiff for the possession of a firearm. The court will interpret Plaintiff's amended complaint as stating a defamation claim, a Fourth Amendment excessive force claim pursuant to 42 U.S.C. § 1983, and a Fourth Amendment false arrest or false imprisonment claim pursuant to 42 U.S.C. § 1983 against Officer McEvoy.
b. Standard of Review
A pro se pleading is held to a less stringent standard than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). As a result, a pro se complaint under § 1983 must be construed liberally, Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002), so “as to do substantial justice.” Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004) (citations omitted). While pro se litigants are afforded this leniency, they “do not have a right to general legal advice from judges, ” and “courts need not provide substantive legal advice to pro se litigants” because pro se litigants must be treated “the same as any other litigant.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245, 58 V.I. 691 (3d Cir. 2013). U.S. ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (“petition prepared by a prisoner ... may be inartfully drawn and should be read “with a measure of tolerance”)).
The applicable inquiry under Federal Rule of Civil Procedure 12(b)(6) is well settled. Under Federal Rule of Civil Procedure 8, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) provides that a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A complaint that merely alleges entitlement to relief, without alleging facts that show entitlement, must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). This “‘does not impose a probability requirement at the pleading stage,' but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary elements.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atlantic Corp., 550 U.S. at 556). Yet the court need not accept as true “unsupported conclusions and unwarranted inferences, ” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000), or the plaintiff's “bald assertions” or “legal conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
Although a complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion, a complaint must provide more than labels and conclusions. Bell Atlantic Corp., 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). “Factual allegations must be enough to raise a right to relief above the speculative level” and “sufficient to state a claim for relief that is plausible on its face.” Bell Atlantic Corp., 550 U.S. at 555. Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678 (citing Bell Atlantic Corp., 550 U.S. at 556).
The plausibility standard is not akin to a “probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.... Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (quoting Bell Atlantic Corp., 550 U.S. at 556) (internal citations omitted).
When considering a Rule 12(b)(6) motion, the court's role is limited to determining whether a plaintiff is entitled to offer evidence in support of his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The court does not consider whether a plaintiff will ultimately prevail. Id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
As a general rule, if a court “consider[s] matters extraneous to the pleadings” on a motion for judgment on the pleadings, the motion must be converted into one for summary judgment. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). However, a court may consider (1) exhibits attached to the complaint, (2) matters of public record, and (3) all documents integral to or explicitly relied on in the complaint, even if they are not attached thereto, without converting the motion into one for summary judgment. Mele v. Fed. Rsrv. Bank of New York, 359 F.3d 251, 256 (3d Cir. 2004) n. 5 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
c. Discussion
i. Officer McEvoy's Motion to Dismiss
1. Defamation
First, Officer McEvoy argues that Plaintiff's defamation claim should be dismissed because Plaintiff fails to allege any connection between the newspaper's publication of Plaintiff's name and any statement made by Officer McEvoy.
Officer McEvoy is correct. Under Pennsylvania law, to state a claim for defamation, a plaintiff must allege facts showing that the defendant uttered the words that allegedly defamed him. Cruz v. M.S., No. 1:18CV0051, 2018 WL 1980343 at *2 (W.D. Pa. Apr. 27, 2018). To this end, Plaintiff alleges “I was in the newspaper after I told them I didn't do it[, ]” and that he was charged in two criminal cases but he won the first case. (ECF No. 45). Plaintiff has alleged no set of facts that would allow the court to reasonably infer that Officer McEvoy made any defamatory communication about Plaintiff. Accordingly, it is respectfully recommended that Plaintiff's defamation claim against Officer McEvoy be dismissed with prejudice, as amendment would be inequitable and futile. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
2. Fourth Amendment Excessive Force
Officer McEvoy argues that Plaintiff's excessive force claim should be dismissed because he has failed to offer any facts other than Officer McEvoy handcuffing Plaintiff to support his excessive force claim and it is difficult to determine what Plaintiff is claiming happened.
Claims of excessive force by police officers in the context of an arrest, investigatory stop or other “seizure” are analyzed under the Fourth Amendment. Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004) (citing Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Excessive force claims are analyzed under the “objective reasonableness” standard which analyzes the officer's conduct “from the perspective of a reasonable officer on the scene.” Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir. 2004). Courts may not assess the officer's reasonableness with the benefit of 20/20 hindsight, but rather must evaluate reasonable on a case-by-case basis depending on the facts and circumstances such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396 (citations omitted). Additionally, courts in this circuit must consider “the duration of the action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers may contend at one time.” Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997) (abrogated on other grounds by Curley v. Klem, 499 F.3d 199 (3d Cir. 2007)). Courts must also consider that officers are often forced to make “split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary.” Couden v. Duffy, 446 F.3d 483, 493 (3d Cir. 2006). “ ‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, ” Johnson v. Glick, 481 F.2d [1028, ] 1033 [(2d Cir. 1973)], violates the Fourth Amendment.' ” Graham, 490 U.S. at 396.
Plaintiff's Amended Complaint, as presently drafted, does not state sufficient facts to raise a right to relief above the speculative level that Officer McEvoy's use of force during his arrest was excessive. The Amended Complaint simply states that when Plaintiff was handcuffed in the backseat Officer McEvoy “snatched” him out and he was face down on the road and put force on Plaintiff's back and jawbone. Plaintiff offers no insight as to when this allegedly occurred, under what circumstances he was in custody or how Plaintiff was harmed. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (“a civil rights complaint is adequate where it states the conduct, time, place and persons responsible.”); Jenkins v. Borough, No. 3:15-CV-1353, 2017 WL 3404967, at *4 (M.D. Pa. June 22, 2017), report and recommendation adopted sub nom Jenkins v. Exeter Borough, No. 3:15-CV-1353, 2017 WL 3401289 (M.D. Pa. Aug. 8, 2017) (dismissing Fourth Amendment excessive force claim when plaintiff merely alleged a Taser was used to subdue him during an arrest because plaintiff failed to alleged facts suggesting the force used was excessive); Harris v. City of Pittsburgh, No. 2:11-CV-0046, 2011 WL 5827344, at *2 (W.D. Pa. Nov. 18, 2011) (finding that plaintiff's general allegations of being pulled from his vehicle and being assaulted by numerous officers, handcuffed and stripped naked could not survive a motion to dismiss where plaintiff did not shed light on the actions of the defendants). Likewise, Plaintiff has failed to establish facts that reasonably infer the use of excessive force, and it is respectfully recommended that his claim be dismissed without prejudice and he be permitted the opportunity to amend his complaint to include facts supporting his excessive force claim. Grayson, 293 F.3d at 108.
Likewise, under Federal Rule of Civil Procedure 8, a complaint must be a “standalone” document, meaning it cannot reference any previous versions of the complaint, must contain all causes of action Plaintiff intends to bring and contain all factual allegations showing that Plaintiff's legal rights have been violated and how each named defendant is connected to those legal violations. In other words, the court can only consider the facts set forth in the amended complaint and will not consider facts included in previous versions of the complaint to support Plaintiff's claims. In Plaintiff's statement of his claim, this is the time to present the facts of the case: what happened, where it happened, when it happened, how it happened, and who was involved. In this section, Plaintiff should write a summary of the facts relevant to this lawsuit. Additionally, any document referenced to in this section must be cited as an exhibit and attached at the end of the amended complaint. In this section, Plaintiff must provide specific details of precisely how his civil rights were allegedly violated. He should note that, in civil rights cases, more than conclusory and vague allegations are required to state a cause of action under Section 1983. Plaintiff should clearly describe how each named defendant is involved in the alleged constitutional violation(s). Plaintiff should not include legal argument in his amended complaint. Citations to case law and other statutes are not appropriate in the complaint, but rather may be included in a response to a dispositive motion or at the time of trial. However, Plaintiff should be specific about the particulars of the event, each defendant's misconduct, and how such misconduct resulted in a violation or denial of the civil right at issue. Where the amended complaint includes more than one incident, Plaintiff should clearly distinguish between them by preparing a separate description - usually a paragraph - for each incident. Each incident should be identified as a separate count, and each count must include appropriate facts and evidence in support of the claims made in the count. Each incident must be clearly and specifically described; it should include the relevant time, date. and location. Each incident description also should clearly identify the relevant defendant and what that defendant's role was in the incident. Additionally, the amended complaint should set forth factual allegations that, taken together, satisfy the elements of the cause of action. If Plaintiff is given the opportunity to amend his complaint and does not amend his complaint, his Fourth Amendment excessive force claim will be dismissed with prejudice. Should this recommendation be adopted, and Plaintiff be permitted to file an amended complaint to include sufficient facts to support a Fourth Amendment excessive force claim against Officer McEvoy, the opportunity to file an amended complaint is not an invitation to enlarge the lawsuit by filing new allegations not related to the allegations in the complaints or by adding defendants not related to the allegations in those original complaints. Inclusion of new allegations and claims unrelated to those set forth in the original complaints will be considered a failure to comply with an Order of Court and will result in the dismissal of the amended complaint.
3. Fourth Amendment False Arrest and False Imprisonment
Officer McEvoy argues that Plaintiff's claims for false arrest and false imprisonment under the Fourth Amendment should be dismissed because the factual allegations are too threadbare to determine the basic facts of what Plaintiff is claiming happened, who was involved, and when it occurred. Further, Officer McEvoy argues that Plaintiff was convicted for at least one of the matters for which he was criminally charged which establishes probable cause.
Broadly interpreting Plaintiff's complaint, he claims that he was falsely arrested because he “won” the first case Officer McEvoy charged him with and that he was subject to false imprisonment because he spent 22 months in jail on charges for which there was no conviction.
Plaintiff's claim for false arrest requires a showing that there was an arrest and that it was made without probable cause. James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012). “While the probable-cause standard is incapable of precise definition or quantification, all interpretations of probable cause require a belief of guilt that is reasonable, as opposed to certain. The probable cause inquiry is entirely objective, and the court must focus on the facts available to the arresting officer or prosecutor when the decision to initiate proceedings against a plaintiff is made.” Harvard v. Cesnalis, 973 F.3d 190, 199-200 (3d Cir. 2020) (internal quotation marks and citations omitted) (addressing probable cause standard for malicious prosecution and false arrest). A claim for false arrest fails “if probable cause existed for any one of the crimes charged against the arrestee.” Dempsey v. Bucknell Univ., 834 F.3d 457, 477 (3d Cir. 2016).
Likewise, to state a claim for false imprisonment under the Fourth Amendment, a plaintiff must establish that (1) he was detained; and (2) the detention was unlawful. James, 700 F.3d at 682-83. For the purposes of a false imprisonment claim, a detention is unlawful if it is made without legal process, or in this circumstance based on an arrest made without probable cause. Id. See also Wallace v. Kato, 549 U.S. 384, 389, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007).
Officer McEvoy is correct that Plaintiff's complaint is too threadbare to determine the underlying circumstances of his false arrest and false imprisonment claims and he has therefore failed to establish facts that reasonably infer false arrest and false imprisonment. It is therefore respectfully recommended that his claims be dismissed without prejudice and he be permitted the opportunity to amend his complaint to include necessary facts supporting these claims. Grayson, 293 F.3d at 108.
If Plaintiff is permitted to amend his complaint to include facts to support his Fourth Amendment false arrest and false imprisonment claims, the same instructions as mentioned in Footnote 2 apply.
4. Qualified Immunity
Officer McEvoy argues that he is entitled to qualified immunity because Plaintiff's complaint fails to assert facts showing that a constitutional violation occurred. While Officer McEvoy may ultimately be correct, because of the threadbare complaint and the recommendation that Plaintiff be permitted the opportunity to file an amended complaint to support his alleged constitutional violations, it is recommended that Officer McEvoy's motion related to qualified immunity be denied without prejudice for Officer McEvoy to reassert upon Plaintiff's filing of an amended complaint.
ii. Attorney Rice's Motion to Dismiss
Attorney Rice argues that Plaintiff's attempt to assert a due process claim for alleged Brady violations against her is barred by the law of the case doctrine because it has already been determined as a matter of law she is entitled to absolute prosecutorial immunity for her alleged acts which were intimately associated with the judicial phase of Plaintiff's underlying criminal prosecution and the court dismissed any and all claims against her with prejudice. Attorney Rice also argues that she is entitled to absolute prosecutorial immunity for her alleged acts. Because Attorney Rice is entitled to prosecutorial immunity for her alleged acts, no recommendation will be made as to her argument on law of the case doctrine.
Plaintiff alleges that Attorney Rice violated his rights to due process when she did not provide him with exculpatory evidence. Gleaning from his original complaint, Plaintiff ostensibly argues that Attorney Rice did not provide him with information that the gun he allegedly possessed and was being prosecuted for did not work and was not loaded. (ECF No. 1 at 1).
Prosecutors are “immune from damages claims arising from their official acts.” Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). Acts intimately associated with the “judicial phase of the criminal process” are protected by this immunity to “allow a prosecutor to work without being constrained by the “consequences in terms of [her] potential liability in a suit for damages.” Yarris v. Cty. of Delaware, 465 F.3d 129, 135 (3d Cir. 2006). This immunity extends to claims based on a prosecutor's “failure to disclose exculpatory evidence, so long as they did so while functioning in their prosecutorial capacity.” Yarris, 465 F.3d at 137. Even the “deliberate withholding of ‘exculpatory information' is included within the ‘legitimate exercise of prosecutorial discretion[, ]” Imbler, 424 U.S. at 431-32 n. 34, and prosecutors are entitled to absolute immunity even if they “withhold evidence after trial while the criminal conviction is on appeal.” Yarris, 465 F.3d at 137.
Here, Plaintiff alleges that Attorney Rice withheld exculpatory evidence about the functionality of the gun he was charged for possessing during the pendency of his underlying prosecution. (ECF No. 1 at 1). Assuming this evidence was exculpatory, Attorney Rice is entitled to absolute immunity for withholding this evidence before trial. Accordingly, it is respectfully recommended that Plaintiff's claims against Attorney Rice be dismissed with prejudice as amendment would be inequitable and futile and Plaintiff should not be given any further opportunity to amend his complaint to include Attorney Rice as a party, as he was previously given the opportunity to do so and has failed to state a claim. See Alston, 363 F.3d at 235; Grayson, 293 F.3d at 108.
iii. Federal Rule of Civil Procedure 11
Plaintiff's pro se and in forma pauperis status does not shield him from sanctions under Federal Rule of Civil Procedure 11 which provides that any pleading, written motion or other paper submitted to the court must certify to the best of that person's knowledge, information and belief and formed after an inquiry reasonable under the circumstances that it is not being presented for an improper purpose, such as to harass, and that the claims and legal contentions are warranted by existing law or by a nonfrivolous argument that existing law should apply. Fed.R.Civ.P. 11. If the court determines that this rule has been violated, it may impose an appropriate sanction on the party that violated that rule. The purpose of Rule 11 is to “deter the initiation of frivolous lawsuits and to streamline the administration of the federal courts.” Martin v. Farmers First Bank, 151 F.R.D. 44, 47 (E.D. Pa. 1993) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)).
In other words, Plaintiff must “stop, think, investigate and research” before initiating a lawsuit or filing a paper with the court, including an amended complaint. Gaiardo v. Ethyl Corp., 835 F.2d 479, 482 (3d Cir. 1987). Plaintiff is cautioned that if he is permitted to file an amended complaint, his claims must be well-grounded in law and fact. Ford Motor Co. v. Summit Motor Prod., Inc., 930 F.2d 277, 289 (3d Cir. 1991) (citations omitted).
d. Conclusion
Based on the foregoing, it is respectfully recommended that Officer McEvoy's motion to dismiss (ECF No. 50) be granted and Plaintiff's defamation claim be dismissed with prejudice, and his Fourth Amendment excessive force, false arrest and false imprisonment claims be dismissed without prejudice and Plaintiff be permitted to file an amended complaint to include facts supporting those claims; and Attorney Rice's motion to dismiss (ECF No. 53) be granted and all claims against Attorney Rice be dismissed with prejudice.
Therefore, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, Defendants have until December 7, 2021 and Plaintiff has until December 10, 2021 to file objections to this report and recommendation. Unless otherwise ordered by the District Judge, responses to objections are due fourteen days after the service of the objections. Failure to file timely objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
Respectfully submitted,