Opinion
Civil Action 3:21-cv-01282
07-01-2022
NYHEIM REAVES, #LW9949, Plaintiff, v. JENNIFER ROSSMAN, et al., Defendants.
RAMBO, J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. United States Magistrate Judge.
This is a federal civil rights action, brought by an incarcerated plaintiff, Nyheim Reaves, against several state prison officials, pursuant to 42 U.S.C. § 1983.The plaintiff has been granted leave to proceed in forma pauperis in this action. On December 1, 2021, Reaves filed his pro se amended complaint, which is the operative complaint in this action.
The plaintiff's pro se original complaint asserted claims under the Americans with Disabilities Act (“ADA”) as well. His pro se amended complaint, however, does not reference the ADA at all, and we decline to construe it to include an ADA claim, as it alleges no facts at all that might support recovery under such a legal theory. See generally Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-46 (3d Cir. 2013) (discussing a court's obligation to liberally construe pro se pleadings and other submissions, particularly when dealing with imprisoned pro se litigants); Rowbottom v. City of Harrisburg, Civil Action No. 19-cv-00657, 2020 WL 6866262, at *4 (M.D. Pa. Jan. 23, 2020) (“[T]he review of a pro se complaint focuses on whether the facts alleged state a claim under any legal theory, not just those explicitly named in the complaint.”), report & recommendation adopted by 2020 WL 4696714 (M.D. Pa. Aug. 13, 2020).
The defendants have appeared through counsel and moved to dismiss the amended complaint for failure to state a claim upon which relief can be granted. The motion is fully briefed and ripe for decision.
I. Background
The plaintiff, Nyheim Reaves, is a convicted state prisoner, incarcerated at SCI Phoenix, a state correctional institution located in Montgomery County, Pennsylvania. Prior to SCI Phoenix, he was incarcerated at SCI Benner Township, a state correctional institution located in Centre County, Pennsylvania.
The amended complaint alleges that, on or about January 5, 2021, Reaves was verbally notified by the Program Review Committee (“PRC”) at SCI Benner Townshipthat he had been placed on the Restricted Release List (“RRL”).The amended complaint further alleges that placement on the RRL is a form of administrative custody, and that, as a consequence of that designation, he would be housed indefinitely in solitary confinement in the prison's restricted housing unit (“RHU”). The amended complaint alleges that defendants Robert Marsh, the former superintendent of SCI Benner Township, and Morris Houser, the current superintendent of SCI Benner Township, failed to respond to the plaintiff's attempts to administratively appeal his placement on the RRL.
The amended complaint alleges that the SCI Benner Township PRC was comprised of the following defendants: Bradley Booher, deputy superintendent for centralized services at SCI Benner Township; Scott Klinefelter, deputy superintendent for facilities management at SCI Benner Township; Jennifer Rossman, corrections classification and program manager at SCI Benner Township; Curtis Grice, major of unit management at SCI Benner Township; Ms. Nelson, unit manager of the diversionary treatment unit at SCI Benner Township; and Ms. Baker, a member of the psychology staff assigned to the diversionary treatment unit at SCI Benner Township.
The RRL is “a list of inmates who are not to be released to the general population without the approval of the Secretary of the Department of Corrections or his designee.” Bracey v. Sec'y Pa. Dep't of Corrs., 686 Fed. App'x 130, 134 (3d Cir. 2017) (per curiam).
The amended complaint alleges that Reaves has been diagnosed with an unspecified serious mental illness and an unspecified cognitive learning disability. It alleges that his placement on the RRL and in solitary confinement caused him to experience stress and anxiety, weight loss, and loss of sleep, exacerbating unspecified symptoms of his unspecified serious mental illness.
The amended complaint alleges that, on March 29, 2021, Reaves was transferred from SCI Benner Township to SCI Phoenix. Upon his arrival, Reaves was housed in the diversionary treatment unit (“DTU”) at SCI Phoenix. Two days later, on March 31, 2021, Reaves was informed by the SCI Phoenix PRC that, due to his RRL status, he would no longer reside in the DTU, but instead he would be moved to the intensive management unit (“IMU”) at SCI Phoenix. On April 7, 2021, Reaves was seen by the PRC in the IMU, and he was advised that his RRL status would be reviewed. The amended complaint does not allege any facts regarding the results of that review, but it alleges that Reaves continued to remain on the RRL and in solitary confinement in the IMU. The amended complaint alleges that defendant Kevin Sorber, superintendent of SCI Phoenix, failed to respond to the plaintiff's attempts to administratively appeal his continued placement on the RRL.
The amended complaint alleges that the SCI Phoenix PRC was comprised of the following defendants: Deputy Sipple, one of two deputy superintendents for centralized services at SCI Phoenix; Deputy Terra, the other deputy superintendent for centralized services at SCI Phoenix; Deputy Panasiewicz, deputy superintendent for facilities management at SCI Phoenix; Mr. Luquis, unit manager for the intensive management unit at SCI Phoenix; and Ms. Stickney, a member of the psychology staff assigned to the intensive management unit at SCI Phoenix.
The amended complaint alleges that he was placed on the RRL and, consequently, in solitary confinement pursuant to unspecified policies, practices, or customs promulgated by defendant John Wetzel, the former secretary of corrections for Pennsylvania, which continued in force under defendant George Little, the current secretary of corrections for Pennsylvania. The amended complaint further alleges that Wetzel and Little have failed to remove him from the RRL.
The secretary of corrections is the only defendant with the authority to remove an inmate from the RRL. See Bracey, 686 Fed. App'x at 134; see also Leaphart v. Palakovich, Civ. No. 3:11-CV-1333, 2012 WL 175426, at *3 (M.D. Pa. Jan. 20, 2012) (“Designation as RRL only changes the final decisionmaker, with the authority to release the inmate from [administrative custody] status into the prison's general population, from the [PRC] to the Secretary or his or her designee.”).
II. Legal Standard
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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the 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). Although the Court must accept the fact 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)). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed. App'x 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.Supp.3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 588-89 (W.D. Pa. 2008).
III. Discussion
In his amended complaint, the plaintiff has asserted federal civil rights claims under 42 U.S.C. § 1983. Section 1983 provides a private cause of action with respect to the violation of federal constitutional rights. The statute 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 any 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 ....42 U.S.C. § 1983.
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). To establish a § 1983 claim, the plaintiff must establish that the defendant, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). To avoid dismissal for failure to state a claim, a civil rights complaint must state the conduct, time, place, and persons responsible for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).
Here, the plaintiff claims that his placement and continuation on the RRL and in solitary confinement constitutes deliberate indifference to his serious medical needs, in violation of his Eighth Amendment right to be free from cruel and unusual punishment, and that he was placed and continued on the RRL and in solitary confinement without prior notice or an opportunity to be heard, in violation of his Fourteenth Amendment procedural due process rights. He further claims that the three superintendent defendants failed to respond to his attempts to administratively appeal his RRL designation, and that his placement on the RRL and in solitary confinement was conducted pursuant to policies, practices, or customs promulgated by or maintained by the two secretary of corrections defendants.
We note that the pro se amended complaint explicitly references the plaintiff's substantive due process rights as well, but as a convicted prisoner subject to the protections of the Eighth Amendment, any claims regarding the conditions of his confinement must be analyzed under the appropriate Eighth Amendment standard, not under the rubric of substantive due process. See Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 260 (3d Cir. 2010). See generally Mala, 704 F.3d at 244-46.
A. Superintendent Defendants
Reaves seeks to hold the three superintendent defendants-Marsh, Houser, and Sorber-liable for their failure to satisfactorily respond to his attempts to administratively appeal his administrative custody and RRL designations. But “because a prisoner has no free-standing constitutional right to an effective grievance process, [Reaves] cannot maintain a constitutional claim against [Marsh, Houser, and Sorber] based upon his perception that [they] ignored and/or failed to properly investigate his grievances.” Woods v. First Corr. Med. Inc., 446 Fed. App'x 400, 403 (3d Cir. 2011) (per curiam).
Moreover, with respect to the underlying conduct-the placement and continuation of Reaves on the RRL and in solitary confinement- Reeves has failed to allege any personal involvement by these three defendants. It is well established that “[c]ivil rights claims cannot be premised on a theory of respondeat superior. Rather, each named defendant must be shown . . . to have been personally involved in the events or occurrences which underlie a claim.” Millbrook v. United States, 8 F.Supp.3d 601, 613 (M.D. Pa. 2014) (citation omitted). As previously explained by the Third Circuit:
A defendant in a civil rights action must have personal involvement in the alleged wrongs [P]ersonal 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 v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
These three defendants are alleged only to have failed to take action based on the plaintiff's attempts to administratively appeal his RRL designation. No other conduct by the three superintendents is alleged, and it is well settled that if a prison official's only involvement is investigating or ruling on an inmate's grievance after the incident giving rise to the grievance has occurred, there is no personal involvement on the part of that official. See Rode, 845 F.2d at 1208. “[T]he mere fact that an official receives and reviews a letter or grievance appeal is insufficient to establish personal involvement (i.e., failure to respond to react does not establish that the official endorsed or acquiesced in the conduct at issue).” Hennis v. Varner, No. 12-646, 2014 WL 1317556, at *9 (W.D. Pa. Mar. 31, 2014).
See supra note 5.
Accordingly, we recommend that the plaintiff's § 1983 claims against defendants Marsh, Houser, and Sorber be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
B. Secretary of Corrections Defendants
Reaves seeks to hold the two secretary of corrections defendants- Wetzel and Little-liable for promulgating or maintaining the departmental policies, practices, or customs that caused other prison officials to violate his constitutional rights by placing him on the RRL and in solitary confinement.
Personal involvement by a supervising defendant may be found where he or she caused a subordinate to violate another's constitutional rights through the execution of an official policy or settled informal custom. See Sample v. Diecks, 885 F.2d 1099, 1117-18 (3d Cir. 1989).
[T]o hold a supervisor liable because his policies or practices led to [a constitutional] violation, the plaintiff must identify a specific policy or practice that the supervisor failed to employ and show that: (1) the exiting policy or practice created an unreasonable risk of that [constitutional] injury; (2) the supervisor was aware that the unreasonable risk was created; (3) the supervisor was indifferent to that risk; and (4) the injury results from the policy or practice.Beers-Capitol v. Whetzel, 256 F.3d 120, 134 (3d Cir. 2001) (citing Sample, 885 F.2d at 1118).
Here, the amended complaint merely alleges, in conclusory fashion, that defendant Wetzel promulgated unspecified policies, practices, and customs that resulted in his placement on the RRL and in solitary confinement, purportedly in violation of the plaintiff's Eighth Amendment and Fourteenth Amendment rights, and that defendant Little maintained these same unspecified policies, practices, and customs without modification. The amended complaint fails to allege any facts whatsoever to support these conclusions, and it fails to allege any facts to establish that either Wetzel or Little was aware of any unreasonable risk that their subordinates might violate the constitutional rights of an inmate in circumstances similar to those of the plaintiff, that they were indifferent to such a risk, or that any injury actually resulted from such conduct. See Doneker v. Cty. of Bucks, Civil Action No. 13-1534, 2014 WL 2586968, at *7-* 11 (E.D. Pa. June 10, 2014). Thus, the amended complaint has failed to allege a facially plausible § 1983 supervisory liability claim against Wetzel or Little.
Accordingly, we recommend that the plaintiff's § 1983 supervisory liability claims against defendants Wetzel and Little be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
C. Eighth Amendment Cruel and Unusual Punishment
Reaves seeks to hold the PRC defendants and the two secretaries of corrections liable for deliberate indifference to his serious medical needs, based on largely conclusory allegations that they placed him on the RRL and in solitary confinement or refused to remove him from the RRL or from solitary confinement, despite being aware that he suffered from an unspecified serious mental illness and an unspecified cognitive learning disability.
It is well established that mere placement in solitary confinement in the RHU or on the RRL does not itself constitute a violation of the Eighth Amendment. See Booze v. Wetzel, Civil Action No. 1:13-cv-02139, 2014 WL 1515562, at *4 (M.D. Pa. Apr. 17, 2014). To establish an Eighth Amendment claim, the plaintiff must adduce evidence beyond the mere fact that he was placed on the RRL or in solitary confinement. See id.
We note that the courts have recognized that the duration of solitary confinement may be a consideration in some extreme cases. See, e.g., Johnson v. Wetzel, 209 F.Supp.3d 766 (M.D. Pa. 2016) (granting preliminary injunction in favor of prisoner held in solitary confinement for 36 years); Shoatz v. Wetzel, Civil Action No. 2:13-cv-0657, 2016 WL 595337, at *7-*9 (W.D. Pa. Feb. 12, 2016) (denying summary judgment to prison officials where inmate had been held in administrative custody for 22 years and submitted specific and robust evidence regarding harm to his mental health). But absent other significant deprivations, the duration of confinement at issue here-approximately eleven months at the time when the amended complaint was filed-is insufficient, standing alone, to establish a violation of the plaintiff's Eighth Amendment rights. See Simon v. Wetzel, C. A. No. 17-224 Pittsburgh, 2018 WL 10230019, at *4 & n.7 (W.D. Pa. Aug. 10, 2018) (dismissing Eighth Amendment claim where inmate was confined in administrative custody and on the RRL for five years); see also Brown v. Nix, 33 F.3d 951, 954-55 (8th Cir. 1994) (holding that nine years of administrative segregation, standing alone, was not a sufficiently serious enough deprivation to constitute an Eighth Amendment violation).
Here, Reaves has alleged only that he has been diagnosed with an unspecified serious mental illness and an unspecified cognitive learning disability. He has referenced the generalized academic findings of a single psychiatrist with respect to the impact of solitary confinement on inmates. But he has failed to allege any specific facts whatsoever regarding the nature of his own mental health issues or regarding the particular impact eleven months of solitary confinement had on his own mental health. His generalized allegations of potential harm are too conclusory to support a plausible claim for relief.
Accordingly, we recommend that the plaintiff's § 1983 Eighth Amendment claims against defendants Wetzel, Little, Booher, Klinefelter, Rossman, Grice, Nelson, Baker, Sipple, Terra, Panasiewicz, Luquis, and Stickney be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
D. Fourteenth Amendment Procedural Due Process
Reaves also seeks to hold the PRC defendants and the two secretaries of corrections liable for violation of his Fourteenth Amendment procedural due process rights, alleging that they placed him on the RRL and in solitary confinement or refused to remove him from the RRL or from solitary confinement without providing him with adequate notice and an opportunity to respond.
“It is axiomatic that a cognizable liberty or property interest must exist in the first instance for a procedural due process claim to lie.” Mudric v. Attorney Gen. of U.S., 469 F.3d 94, 98 (3d Cir. 2006). With respect to any due process claim arising out of the plaintiff's RRL status, the Third Circuit has previously held that placement on the RRL does not implicate a constitutionally protected due process right. See Bracey v. Sec'y Pa. Dep't of Corr., 686 Fed. App'x 130, 136 (3d Cir. 2017) (per curiam); Huertas v. Sec'y Pa. Dep't of Corr., 533 Fed. App'x 64, 67 n.6 (3d Cir. 2013) (per curiam); Bowen v. Ryan, 248 Fed. 302, 304 (3d Cir. 2007) (per curiam); see also Carter v. Beard, Civil No. 1:CV-10-1543, 2012 WL 1414446, at *3 (M.D. Pa. Apr. 24, 2012); Leaphart v. Palakovich, Civ. No. 3:11-CV-1333, 2012 WL 175426, at *3 (M.D. Pa. Jan. 20, 2012). Similarly, With respect to solitary confinement, the Third Circuit has recognized that the prospect of prolonged and indefinite solitary confinement may give rise to a due process liberty interest in some circumstances. See Porter v. Pa. Dep't of Corrs., 974 F.3d 431, 449-50 (3d Cir. 2020) (holding that inmate who had spent 33 years in solitary confinement had a due process liberty interest in avoiding further solitary confinement); Shoats v. Horn, 213 F.3d 140, 143-44 (3d Cir. 2000) (holding that inmate who had spent 8 years in solitary confinement in administrative custody with no prospect of immediate release in the near future had a protected liberty interest). It does not appear, however, that the eleven-month period of solitary confinement at issue in this case is sufficient to give rise to such a protected liberty interest. See Tilley v. Allegheny Cty. Jail, 2010 WL 1664900, at *3 (W.D. Pa. Feb. 18, 2010) (finding no protected liberty interest where inmate had previously spent less than 17 months in solitary confinement).
Nevertheless, even if the plaintiff's continuation in solitary confinement does implicate a protected liberty interest, our analysis does not end there. “Once we determine that the interest asserted is protected by the Due Process Clause, the question then becomes what process is due to protect it.” Shoats, 213 F.3d at 143.
An inmate's initial placement or continued confinement in administrative custody (including solitary confinement) or on the RRL is subject to an administrative process set forth in DC-ADM 802, a state corrections department policy outlining procedures concerning administrative custody. See Pa. Dep't of Corr., Policy No. DC-ADM 802, Administrative Custody Procedures (Apr. 11, 2022), available at https:// www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/802%20Admi nistrative%20Custody%20Procedures.pdf (last accessed July 1, 2022).This policy provides for an inmate to receive written notice of the reason for placement in administrative custody and an administrative hearing before the PRC within seven days. See DC-ADM 802 § 2(A). It provides for an administrative appeal process from the initial placement decision by the PRC to the facility superintendent, and from there to a statewide chief hearing officer. See id. § 2(C). After initial placement, the policy provides for periodic review of an inmate's confinement in administrative custody every 90 days, and an administrative process for appealing from those decisions as well. See id. § 2(D)(5), (7). It provides for annual review of an inmate's status on the RRL as well. See id. § 2(D)(10).
We may properly take judicial notice of this policy. See Booze v. Wetzel, Civil Action No. 1:CV-13-cv-2139, 2014 WL 65283, at *2 (M.D. Pa. Jan. 8, 2014) (taking judicial notice of DC-ADM 802); Carter, 2012 WL 1414446, at *1 n.1 (same); Bowen v. Ryan, No. 3:05CV1512, 2006 WL 3437287, at *8 n.1 (M.D. Pa. Nov. 29, 2006) (same).
The Third Circuit has repeatedly held that the periodic review offered to Pennsylvania inmates who are indefinitely confined in administrative custody satisfies the requirements of procedural due process. See Shoats, 213 F.3d at 144-47; see also Washington-El v. Beard, 562 Fed. App'x 61, 63 (3d Cir. 2014) (per curiam); Bowen, 248 Fed. App'x at 304-05. Here, the amended complaint alleges in conclusory fashion only that Reaves has been denied “meaningful review” or “constitutionally adequate due process” with respect to his initial placement on the RRL and the “purported review” of his RRL status. It does not allege any actual facts to plausibly demonstrate that his initial placement or continued confinement in administrative custody or on the RRL failed to comply with the minimal requirements of due process in this context. Indeed, the amended complaint explicitly acknowledges that Reaves was seen by the SCI Phoenix PRC for at least one administrative hearing within days of his arrival at SCI Phoenix, and that he availed himself of the administrative appeals process at both SCI Benner Township and SCI Phoenix.
Accordingly, we recommend that the plaintiff's § 1983 Fourteenth Amendment procedural due process claims against defendants Wetzel, Little, Booher, Klinefelter, Rossman, Grice, Nelson, Baker, Sipple, Terra, Panasiewicz, Luquis, and Stickney be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
E. Leave to Amend
The Third Circuit has instructed that if a civil rights 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). This instruction applies equally to pro se plaintiffs and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, it is not clear that amendment would be futile, nor is there any basis to believe it would be inequitable. It is therefore recommended that Reaves be granted leave to file a second amended complaint within a specified time period following dismissal of his amended complaint.
IV. Recommendation
For the foregoing reasons, it is recommended that:
1. The defendants' motion to dismiss (Doc. 46) be GRANTED;
2. The amended complaint (Doc. 32) be DISMISSED for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure;
3. The plaintiff be granted leave to file a second amended complaint within a specified time period following dismissal; and
4. The matter be remanded to the undersigned for further proceedings.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated July 1, 2022. Any party may obtain a review of the Report and Recommendation pursuant to Local 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.