Opinion
CIVIL ACTION NO. 3:17-CV-01057
08-06-2018
RANDY GELBUTIS, Plaintiff, v. SHENANDOAH POLICE DEPARTMENT, et al., Defendants.
(MUNLEY, J.)
() REPORT AND RECOMMENDATION
Before the Court are two motions to dismiss filed by the Defendants to this § 1983 action. (Doc. 27; Doc. 31). Collectively, the Defendants argue this action should be dismissed except for one claim of excessive force against Defendant Officer John Buchinsky. For the reasons contained in this Report and Recommendation, it is recommended that both motions be GRANTED.
I. BACKGROUND AND PROCEDURAL HISTORY
Pro se Plaintiff Randy Gelbutis initiated this action on June 16, 2017; filing suit against five Defendants for an altercation at Gelbutis's residence. (Doc. 1). On December 18, 2017, Gelbutis amended his complaint and this amendment remains currently operative. (Doc. 21). Gelbutis seeks "damages, declaratory and injunctive relief" for "extreme physical abuses and excessive force, [and] lack of medical treatment that violated the Plaintiff's civil rights pursuant to the Eighth Amendment of the Constitution of the United States." (Doc. 21, at 3).
In his amended complaint, Gelbutis states that Defendants Cola and Shannon, parole officers at the Schuylkill County Department of Adult Probation and Parole, and Buchinsky, an officer with the Shenandoah Police Department, came to Gelbutis's home on September 21, 2015. (Doc. 21, ¶ 8). Cola asked Gelbutis to take a drug test, and Shannon handed Gelbutis a urine test vial. (Doc. 21, ¶ 9). Gelbutis provided a sample, after which Cola and Shannon told Gelbutis that the sample tested positive for methamphetamine. (Doc. 21, ¶ 9-10). Gelbutis argued that he hadn't taken any drugs, "demanded that the urine sample not leave his sight until it was properly sealed with the tape[,]" and requested a second test by blood draw. (Doc. 21, ¶ 10). Defendants Cola and Shannon refused. (Doc. 21, ¶ 10).
Shannon insisted that Gelbutis sign a form to submit the sample "as is." (Doc. 21, ¶ 11). When Gelbutis refused, Shannon threatened to submit the sample without Gelbutis's signature. (Doc. 21, ¶ 12). Suspecting wrongdoing, Gelbutis attempted to retrieve the sample. (Doc. 21, ¶ 12). Defendants Cola and Shannon "lunged at the [P]laintiff, grabbing his arms viol[e]ntly to stop him from getting the sample." (Doc. 21, ¶ 13). As a result, the vial broke and Gelbutis's urine "spilled out over everyone." (Doc. 21, ¶ 13). Defendant Buchinsky "came up from behind the [P]laintiff" and caused Gelbutis to "fly over the porch railing[.]" (Doc. 21, ¶ 14).
Shannon then told Gelbutis that Shannon knew the sample tested positive because Shannon put methamphetamine in the sample himself. (Doc. 21, ¶ 15). Cola and Shannon then grabbed Gelbutis's arm "and started to swing [Gelbutis] around in a circle in the attempt to throw [Gelbutis] to the ground." (Doc. 21, ¶ 15). When Gelbutis fell to the ground, Shannon "jumped on [Gelbutis's] back" and Buchinsky "stood with his foot on the plaintiff's neck." (Doc. 21, ¶ 16). Gelbutis, bleeding profusely, cried out and the Defendants proceeded to handcuff transport him to the parole office. (Doc. 21, ¶ 18). Once at the parole office, an EMT performed "a slight cursory examination" of Gelbutis and informed Gelbutis that he "was not going to the hospital." (Doc. 21, ¶ 19). Instead, Gelbutis entered the Schuylkill County Prison, where he went untreated by medical staff for three days and prevented from taking his prescription medication. (Doc. 21, ¶ 19).
On January 3, 2018, Defendants Cola, Shannon, and Schuylkill County Adult Probation & Parole (hereinafter, the "Parole Defendants") filed their motion to dismiss. (Doc. 27). In support, these Defendants argue that each Defendant is protected by Eleventh Amendment sovereign immunity. (Doc. 28). Further, they argue that Gelbutis has not pled facts that would support imposing Monell liability upon Schuylkill County Adult Probation & Parole, and that Defendants Cola and Shannon are subject to quasi-judicial immunity. (Doc. 28).
On January 16, 2018, Defendants Shenandoah Police Department and Officer John Buchinsky (identifying themselves as the "Police Defendants") filed a motion to dismiss partially. (Doc. 31). In support, the Police Defendants argue that the Shenandoah PD is not the proper party to this action, as it is merely an administrative arm for the Borough of Shenandoah. (Doc. 31). They further argue that Gelbutis has failed to state facts indicating that Defendant Buchinsky denied medical care, and that Gelbutis misconstrues the nature of declaratory judgments and injunctive relief. (Doc. 31).
Gelbutis responded to both motions on March 22, 2018. (Doc. 46). He argues that the Parole Defendants are not protected by sovereign immunity to the extent they are sued in their individual capacities, or to the extent he seeks injunctive relief. (Doc. 46). Gelbutis continues that Cola and Shannon should have prevented Buchinsky from using excessive force based on knowledge of a pattern of assaults. (Doc. 46).
Gelbutis filed an additional brief in opposition without leave of court on May 21, 2018. (Doc. 50). This filing is materially similar to the first brief in opposition. As the second brief is filed in violation of the Local Rules, the Court references the brief in opposition deemed permissibly filed.
No reply briefs have been filed in response to Gelbutis's brief in opposition. As the time allowed for response under the Local Rules has long expired, the Court considers both motions ripe for review.
II. STANDARD OF REVIEW
A federal court is bound to consider its own jurisdiction preliminary to consideration of the merits. Gorton v. Air & Liquid Sys. Corp., 303 F. Supp. 3d 278, 288-89 (M.D. Pa. 2018) (quoting Trent Realty Assocs. v. First Fed. Sav. & Loan Ass'n of Phila., 657 F.2d 29, 36 (3d Cir. 1981)). The burden of establishing jurisdiction lies with the party seeking to invoke the court's jurisdiction. Gorton, 303 F. Supp. 3d at 289 (citing Kehr Packages, Inc., v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).
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). "Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility." Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although the Court must accept the allegations in the complaint as true, it is not compelled to accept "unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). In deciding a Rule 12(b)(6) motion, the Court may consider the facts alleged on the face of the complaint, as well as "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).
III. DISCUSSION
Courts considering a jurisdiction-based dismissal have two standards in evaluating whether jurisdiction is proper, with the applicable standard determined by the nature of the challenge to jurisdiction itself. "[J]urisdictional challenges take two forms: (1) parties may make a 'factual' attack, arguing that one or more of the pleading's factual allegations are untrue, removing the action from the court's jurisdiction; or (2) they may assert a 'facial' challenge, which assumes the veracity of the complaint's allegation but nonetheless argues that a claim is not within the court's jurisdiction." Corman v. Torres, 287 F. Supp. 3d 558, 566 (M.D. Pa. 2018) (citing Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F. 3d 99, 105 (3d Cir. 2015)). If reviewing a factual attack, a court may consider evidence outside the pleadings. If a facial attack, a court "considers the allegations of the complaint and documents referenced therein and attached thereto in the light most favorable to the plaintiff." Gorton, 303 F. Supp. 3d at 289 (citing Gould Electronics, Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000)).
Despite the Court's own factual concerns over the allegations given Gelbutis's state conviction from the incident in question, the challenges to jurisdiction raised by the Defendants here appear to be facial in nature.
A. CLAIMS AGAINST DEFENDANTS COLA, SHANNON, AND SCHUYLKILL COUNTY ADULT PROBATION & PAROLE
Thus, the Court first considers the argument that claims against each of the Parole Defendants should be dismissed as the Court lack subject matter jurisdiction over these Defendants due to Eleventh Amendment sovereign immunity. The Parole Defendants argue that probation and parole departments are considered arms of the state, to which sovereign immunity extends. (Doc. 28, at 7). Consistent with this protection, they further argue that the individual employees - Defendants Cola and Shannon - are likewise subject to Eleventh Amendment protection as the facts alleged demonstrate that both acted within the scope of their employment. (Doc. 28, at 10-11). Gelbutis responds that the Eleventh Amendment does not bar injunctive relief, and that all of the Defendants are sued in both their official and individual capacities. (Doc. 41). Both parties are mostly correct in their assertions.
First, the Parole Defendants are correct in their assertion that Eleventh Amendment sovereign immunity protects probation and parole departments and their employees. "The probation department is an arm of the state, and its employees are state actors, making them subject to sovereign immunity." Clark v. Conahan, 737 F. Supp. 2d 239, 258 (M.D. Pa. 2010) (citing Haybarger v. Lawrence Cnty. Adult Prob. and Parole, 551 F.3d 193, 198 (3d Cir. 2008)). With regard to the employees, sovereign immunity is only available while acting within the scope of their employment. Clark, 737 F. Supp. 2d at 258 (citing 1 PA. C.S.A. § 2310). "Conduct of an employee is within the scope of employment when it is of a kind and nature that the employee is employed to perform, it occurs substantially within the authorized time and space limits, and the action is prompted, at least in part, by a purpose to serve the employer." Clark, 737 F. Supp. 2d at 258 (citing Larsen v. State Emp's'. Ret. Sys., 553 F. Supp. 2d 403, 420 (M.D. Pa. 2008)). Plainly, Schuylkill County Adult Probation and Parole is subject to sovereign immunity, and their employees will be as well to the extent liability is predicated upon acts by employees within the scope of their employment.
Gelbutis's requested "injunctive" relief is not a loophole to the Eleventh Amendment or Pennsylvania law. "The Eleventh Amendment confirms the sovereign status of the States by shielding them from suits by individuals absent their consent." Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004) (citing Seminole Tribe of Fla. V. Florida, 517 U.S. 44, 54 (1996)). "[T]he Eleventh Amendment permits suits for prospective injunctive relief against state officials acting in violation of federal law." Frew, 540 U.S. at 437 (citing Ex parte Young, 209 U.S. 123 (1908)). However, "[f]ederal courts may not award retrospective relief, for instance, money damages or its equivalent, if the State invokes its immunity." Frew, 540 U.S. 437 (citing Edelman v. Jordan, 415 U.S. 651, 668 (1974)) (emphasis added).
Despite Gelbutis's captioning his requested relief as injunctive, he is seeking monetary damages strictly prohibited by the Eleventh Amendment. He requests "[a] preliminary and permanent injunction ordering the defendants to pay for his treatments and test" before listing amounts of damages sought "against each defendant." (Doc. 21, at 3). Labelling the relief as "injunctive" does not eliminate the substance thereof; that Gelbutis seeks monetary damages from an arm of the state specifically shielded from liability. Accordingly, the Parole Defendants' motion to dismiss claims against Schuylkill County Adult Probation and Parole, as well as Defendants Cola and Shannon in their official capacity, should be GRANTED.
The Parole Defendants next argue that claims against Defendants Cola and Shannon in their individual capacity should also be dismissed because both are shielded from liability on the basis of Quasi-Judicial Immunity. (Doc. 28, at 11). They argue that parole officers, engaged in their official duties, are immune from suit for liability predicated upon the performance of those duties. (Doc. 28, at 12). They argue that the complaint provides that Defendants Cola and Shannon requested that Gelbutis take a drug test, plainly within the scope of their duties, and that relief is thus unavailable. (Doc. 28, at 12).
"Absolute immunity is available to government actors that are performed in their 'quasi-judicial' role for conduct that is 'intimately associated with the judicial phase of the criminal process.'" Clark v. Conahan, 737 F. Supp. 2d 239, 258-59 (M.D. Pa. 2010) (quoting Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir.1992)). Courts tasked with determining whether conduct falls within the shield provided by quasi-judicial immunity consider "the nature of the function performed, not the identity of the actor who performed it and evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of that function." Clark, 737 F. Supp. 2d at 259 (quoting Stankowski v. Farley, 487 F. Supp. 2d 543, 552 (M.D. Pa. 2007)). Clark clarifies that a government actor acting in their investigative or administrative capacity is protected only by qualified immunity, rather than quasi-judicial immunity. See Clark, 737 F. Supp. 2d at 259. Given the investigative nature of Defendant Cola's and Shannon's actions detailed in the complaint, the availability of qualified immunity is the appropriate analysis.
Qualified immunity shields government actors from suit 'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Zaloga v. Borough of Moosic, 841 F.3d 170, 174 (3d Cir. 2016) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A qualified immunity analysis is comprised of two elements; either of which the Court may consider as dispositive. The court must consider whether the government official's conduct violated a constitutional right and whether the right was clearly established in light of the specific context of the case rather than a general proposition. See Zaloga, 841 F.3d at 174 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Gelbutis identifies the Eighth Amendment protection against cruel and unusual punishment as the civil right violated. (Doc. 21, at 3). There can be little dispute that the fabrication of drug test results in order to cause a parole violation and re-incarceration constitutes a violation of a clearly established civil right. To that end, qualified immunity would not shield the Defendants from liability.
However, the Court cannot accept Gelbutis's proffered facts on this issue as true in order to thwart qualified immunity. Under the well-established guidance offered by the Supreme Court in Heck v. Humphrey:
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
An award of damages for the conduct of Defendants Cola and Shannon on most of the facts alleged would directly contradict Gelbutis's conviction for his own conduct during the incident in question. Gelbutis was charged in the Court of Common Pleas of Schuylkill County on six charges - aggravated harassment by a prisoner; resisting arrest or other law enforcement; tampering with or fabricating physical evidence; obstructing the administration of law or other government function; disorderly conduct; and simple assault - for offenses dated September 21, 2015. Commonwealth v. Gelbutis, CP-54-CR-0001997-2015 (Schuylkill Cnty. C.C.P. 2015). Charges for aggravated harassment were dismissed and charges for disorderly conduct were nolle prossed. Commonwealth v. Gelbutis, CP-54-CR-0001997-2015 (Schuylkill Cnty. C.C.P. 2015). On October 17, 2016, Gelbutis pled nolo contendere to the remaining charges of resisting arrest, tampering with or fabricating physical evidence, obstructing the administration of law, and simple assault. Commonwealth v. Gelbutis, CP-54-CR-0001997-2015 (Schuylkill Cnty. C.C.P. 2015).
Gelbutis's conviction and incarceration have not been declared invalid. A plea of nolo contendere, while not an admission of guilt, "is indisputably tantamount to a conviction[.]" United States v. Poellnitz, 372 F.3d 562, 566 (3d Cir. 2004). See Curry v. Yachera, 835 F.3d 373, 378 (3d Cir. 2016). Despite post-sentencing proceedings, Gelbutis's plea remains valid at this juncture. Any constitutional claims predicated upon conduct so entwined with the conviction as to render it invalid are barred by Heck.
However, the Court does not construe Eighth Amendment claims grounded in an outright denial of, or deliberate indifference to, providing medical care for serious medical needs. Gelbutis states that:
[i]nstead of taking the now injured and bleeding plaintiff to the hospital, the defendants took him to the office of Adult Probation and parole, where he was met by the EMTs who did a slight cursory examination and told the plaintiff, that he was not going to the hospital. Instead, he was taken to the Schuylkill County Prison, put into a cell and was left without medical treatment for three days. He was denied his medications, including his blood thinners for over five days, even though the plaintiff's children's mother gave defendant Cola his medications which, she never brought to the prison.
(Doc. 21, ¶ 19).
The facts alleged are inadequate for a claim of deliberate indifference to serious medical needs. Defendants Cola and Shannon have no ability to dictate medical care upon a person's incarceration. Thus, any post-incarceration deprivation is not grounds for liability as neither Defendant has the requisite personal involvement for a civil rights claim. Further, Gelbutis's own allegations provide that Defendants Cola and Shannon did not deny Gelbutis medical care. An EMT evaluated Gelbutis and told Gelbutis "he was not going to the hospital." (Doc. 21, ¶ 19). Gelbutis's dissatisfaction with the "slight cursory examination" is not grounds for relief against Cola or Shannon. Instead, the provided facts indicate that a medical professional evaluated Gelbutis for injuries sustained in a confrontation for which Gelbutis has been convicted. Defendants Cola and Shannon did not deny medical care or ignore needs of medical care.
Accordingly, the Court finds that Gelbutis has failed to state a claim under the Eighth Amendment against either Defendant Cola or Shannon in their individual capacity. The motion to dismiss both Defendants (Doc. 27) should be GRANTED.
B. CLAIMS AGAINST THE SHENANDOAH POLICE DEPARTMENT AND OFFICER JOHN BUCHINSKY
On January 16, 2018, Defendants Shenandoah Police Department and Officer John Buchinsky (collectively, the "Police Defendants") filed their own motion to dismiss, albeit only in part. (Doc. 31). The Police Defendants seek to dismiss all claims against the Shenandoah Police Department, Eighth Amendment claims for the denial of medical care, and Gelbutis's requests for declaratory and injunctive relief. (Doc. 31, at 2). The Police Defendants do not seek the dismissal of Gelbutis's claim of excessive force against Officer Buchinsky at this stage. (Doc. 31, at 2). Specifically, the Police Defendants argue that the Shenandoah Police Department is not a properly named party, because it is merely an administrative arm of the Borough of Shenandoah and thus not a "person" under § 1983. (Doc. 36, at 5-6). They also argue that Gelbutis's own factual averments demonstrate that Officer Buchinsky did not deprive Gelbutis of medical care. (Doc. 36, at 7-8). Gelbutis responds that, similarly to Schuylkill County Adult Probation and Parole, his request for injunctive relief negates any barrier to suit against the Shenandoah Police Department and that he has stated a claim against Defendant Buchinsky. (Doc. 46).
This Report and Recommendation does not contain further discussion on the latter two arguments advanced by the Police Defendants. A declaratory judgment is improper, and to the extent Gelbutis's rights have been violated, a judgment would enter in his favor upon favorable termination of this action. As discussed earlier, the injunctive relief sought is merely a request for the payment of damages. This is not injunctive relief, and the Court agrees with the Police Defendants on both of their arguments.
Gelbutis's sought injunctive relief - the remission of monetary damages - is not a gateway to relief under § 1983 where the defendant is not a "person" for the purposes of the statute. Section 1983 states that every "person" who, under the color of law, subjects "any citizen of the United States or other person within the jurisdiction 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..." 42 U.S.C. § 1983. Municipal police departments are not "persons" amendable to suit under § 1983. Terrell v. City of Harrisburg Police Dep't, 549 F. Supp. 2d 671, 686 (M.D. Pa. 2008) (citing Martin v. Red Lion Police Dep't, 146 F. App'x 558, 562 n. 3 (3d Cir. 2005)). The appropriate party in a § 1983 action is the municipality itself.
The plaintiff must also provide facts that would provide for liability by the municipality. Gelbutis has not demonstrated any manner of personal involvement by the Borough of Shenandoah or offered facts indicating Monell liability would be appropriate. --------
Accordingly, the Police Defendants motion to dismiss the Shenandoah Police Department as an improper party should be GRANTED.
Lastly, as with Defendants Cola and Shannon, Gelbutis has failed to state an Eighth Amendment claim for denial of medical care against Defendant Buchinsky. Without repeating the above, Gelbutis states that the Defendants took him to the probation office, as opposed to a hospital, where Gelbutis was evaluated by an EMT before being transported to prison. (Doc. 21, ¶ 19). The facts, accepted as true for the purposes of a motion to dismiss, provide that Buchinsky did not deprive Gelbutis evaluation by medical professionals. The facts do not indicate that Gelbutis required further treatment that a layperson would recognize the inadequacy of treatment provided by medical officials. Further, Buchinsky's involvement ends before Gelbutis's incarceration. Any deprivation of medical care upon incarceration is outside the influence of Buchinsky, meaning Buchinsky could not exhibit the requisite personal involvement necessary for a civil rights action.
Accordingly, Gelbutis has failed to state an Eighth Amendment denial of medical care or deliberate indifference to serious medical needs. Claims for a denial of medical care lodged against Defendant Buchinsky should be dismissed. The Court recommends the Police Defendants motion to dismiss be GRANTED.
IV. RECOMMENDATION
Based on the foregoing, the Court recommends the motions to dismiss filed by the Parole Defendants (Doc. 27) and the Police Defendants (Doc. 31) be GRANTED. Specifically, the Court recommends that:
1. Claims against Defendants Schuylkill County Adult Probation and Parole, Cola, and Shannon in their official capacity should be DISMISSED, as the claims are barred by Eleventh Amendment sovereign immunity;
2. Plaintiff's requested injunctive relief is improper and inadequate to maintain an action against the Parole Defendants over sovereign immunity, and should be DISMISSED;
3. Plaintiff has failed to state a claim against Defendants Cola and Shannon in their individual capacity and both Defendants should be DISMISSED;Dated: August 6, 2018
4. Defendant Shenandoah Police Department is not a person amenable to suit under § 1983 and should be DISMISSED;
5. Plaintiff has failed to state an Eighth Amendment claim for the denial of medical care or deliberate indifference to serious medical needs against Defendant Buchinsky, and these claims should be DISMISSED; and
6. Plaintiff's motion for a subpoena (Doc. 48) be DENIED AS MOOT.
7. Upon adoption or rejection of this Report and Recommendation, the matter should be remanded to the undersigned for further proceedings.
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 6, 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: August 6, 2018
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge