Opinion
Civ. 4:21-CV-1127
07-19-2021
JOHN SIMPSON, Plaintiff, v. W.L. GORE & ASSOCIATES, INC., et al., Defendants.
Brann, Judge
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE
I. Factual Background
This case comes before us for a legally mandated screening review of the plaintiff's complaint. (Doc. 1). According to Simpson's pro se complaint, in 2004, a mesh hernia device manufactured by Defendant W.L. Gore was surgically implanted in the plaintiff at the Tyler Memorial Hospital. Eleven years later, while he was housed at the Luzerne County Prison, Simpson experienced medical complications due to this mesh, which resulted in emergency surgery. According to Simpson, the county prison was indifferent to his medical needs during this episode, which spanned from 2015 through 2016. Simpson was then transferred to SCI Houtzdale in 2016, some five years ago. While at SCI Houtzdale, he complains that he lacked sufficient contact with legally trained inmates to bring these tort claims. (Id.)
On the basis of these allegations, many of which entail conduct which took place between five and seventeen years ago, Simpson now sues W.L. Gore, the Tyler Memorial Hospital, the Luzerne County Prison, and the Superintendent at SCI Houtzdale. In his complaint, Simpson specifies that he is seeking more than $1,000,000 in compensatory and punitive damages from these defendants.
Along with his complaint, Simpson has moved for leave to proceed in forma pauperis. (Doc. 6). We will direct that the lodged complaint be filed on the docket for screening purposes only and will conditionally GRANT the plaintiff's motion for leave to proceed in forma pauperis. However, as discussed below, in its current form, this complaint is procedurally and substantively flawed in a number of respects. Accordingly, we recommend that this complaint be dismissed without prejudice to Simpson filing an amended complaint which states claims upon which relief may be granted.
II. Discussion
A. Screening of Pro Se Complaints-Standard of Review
This Court has an ongoing statutory obligation to conduct a preliminary review of pro se complaints brought by plaintiffs given leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B)(ii). Specifically, we are obliged to review the complaint to determine whether any claims are frivolous, malicious, or fail to state a claim upon which relief may be granted. This statutory text mirrors the language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly 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 Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal 556 U.S. 662, 129 S.Ct. 1937 (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, Inc., 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.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), 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 actions will not do.” Id. at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id. at 679.
Thus, following Twombly and Iqbal a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to “show” such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
Two years after Fowler, the Third Circuit further observed:
The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts 5
“merely consistent with” a defendant's liability, [ ] “stops short of the line between possibility and plausibility of ‘entitlement of relief.'”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id.Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010).
In addition to these pleading rules, a civil complaint must comply with the requirements of Rule 8(a) of the Federal Rule of Civil Procedure, which defines what a complaint should say and provides that:
(a) A pleading that states a claim for relief must contain (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.Fed. R. Civ. P. 8.
Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se plaintiff's complaint must recite factual allegations that are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of action.
Judged against these legal guideposts, this complaint is fatally flawed in a number of respects as set forth below. Accordingly, it is recommended that this complaint be dismissed complaint without prejudice to the filing of a proper amended complaint.
B. With Respect to the State Law Claims Made By the Plaintiff Against Tyler Memorial Hospital, the Plaintiff's Complaint Fails to State a Claim Upon Which Relief Can Be Granted In Federal Court.
Turning first to the plaintiff's state law negligence and medical malpractice claims against the Tyler Memorial Hospital, the current pro se complaint fails to allege state law claims upon which relief can be granted in federal court. It is well settled that federal courts are courts of limited jurisdiction. As a general rule, there are two primary grounds for federal district court jurisdiction over a civil lawsuit. First, “district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between-(1) citizens of different States.” 28 U.S.C. § 1332(a)(1). This ground of federal jurisdiction is known as diversity jurisdiction. The second principal ground for invoking the jurisdiction of a federal court is known as federal question jurisdiction. Under this ground of jurisdiction, “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. §1331.
Here, with respect to these state law claims, the complaint does not allege any “civil actions arising under the Constitution, laws, or treaties of the United States, ” 28 U.S.C. §1331, giving rise to federal question jurisdiction. Instead, Simpson simply brings state law malpractice and negligence tort claims in federal court. However, Simpson may not assert federal jurisdiction over these state torts, since we can only exercise federal jurisdiction over such state law claims in “civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between- (1) citizens of different States.” 28 U.S.C. § 1332(a)(1)(emphasis added). In the instant case, this court's diversity jurisdiction simply does not provide a basis for exercising jurisdiction over this particular controversy since the complaint recites that the plaintiff and the defendant are all citizens and residents of Pennsylvania. Given that the complaint reveals on its face that this lawsuit is not between citizens of different states, the plaintiff may not invoke diversity jurisdiction in this matter.
In light of this basic jurisdictional flaw in this complaint, we conclude that state tort claims set forth in this pleading simply do not meet the requirements prescribed by law for a federal lawsuit, since “the facts alleged in the complaint are [not] sufficient to show that the plaintiff has a ‘plausible claim for relief, '” Fowler, 578 F.3d at 210-11, in federal court under this court's diversity jurisdiction. Indeed, at present, the complaint does not even contain “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), since the complaint actually seems to demonstrate on its face that federal jurisdiction does not lie here.
In fact, this court has previously held that Pennsylvania residents may not maintain state law malpractice lawsuits against Pennsylvania doctors in federal court. In dismissing and refusing to reinstate a similar lawsuit, this court noted in terms that are equally applicable here that: “Plaintiff's Complaint indicates that both he and Defendant D[octor] are located and domiciled in Pennsylvania. Thus, there is not diversity jurisdiction over this action because ‘complete diversity is lacking when the plaintiff is a citizen of one state and a defendant is a citizen of that same state.'Boldrini v. Bruno, No. CIV.A. 3:11-1401, 2013 WL 619610, at *2 (M.D. Pa. Feb. 19, 2013)(citations omitted). This Court's conclusion in Boldrini that non-diverse parties may not maintain a state law malpractice claim in federal court applies here as well and compels dismissal of this complaint. Yet, while these allegations do not state grounds for a lawsuit in federal court, this does not mean that Simpson has no legal remedies available to him. Simpson may bring these claims in state court. Those courts certainly stand ready to hear his claims.
C. The Court Lacks Venue Over Claims Arising at SCI Houtzdale
There is yet another flaw with Simpson's claims against Barry Smith, an official at SCI Houtzdale, a state correctional facility in Clearfield County, Pennsylvania, which is located within the venue of the United States District Court for the Western District of Pennsylvania, 28 U.S.C. §118.
This case is a federal civil action. In such cases, 28 U.S.C. § 1391(b) defines the proper venue and provides that an action should:
[B]e brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.28 U.S.C. § 1391(b).
In this case, with respect to Simpson's claims against persons employed at SCI Houtzdale, “a substantial part of the events or omissions giving rise to the claim” took place in Clearfield County and within the venue of the United States District Court for the Western District of Pennsylvania. 28 U.S.C. §118. Moreover, it appears that the defendant either resides, or may be found, in Clearfield County. Therefore, this aspect of Simpson's complaint currently appears to fall within the venue of the United States District Court for the Western District of Pennsylvania.
This court is permitted sua sponte to raise the issue of an apparent lack of venue, provided the court gives the plaintiff notice of its concerns and an opportunity to be heard on the issue. See, e.g., Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996) (“[A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the issue”); Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). In this case, through the filing of this Report and Recommendation, we are placing the plaintiff on notice that this component of his complaint does not appear to allege facts that would currently give rise to venue in this court. Therefore, it is further recommended that the court dismiss defendant Barry Smith for lack of venue pursuant to 28 U.S.C. § 1406 and Rule 12(b)(3) of the Federal Rules of Civil Procedure.
D. Simpson May Not Sue the County Prison
Simpson has also named the Luzerne County Correctional Facility as an institutional defendant in this case. To the extent that the plaintiff attempts to bring a lawsuit against the county prison as an institution, the plaintiff may not maintain a prisoner civil rights action against this particular defendant. Rather, inmate civil rights actions under 42 U.S.C. § 1983 may be brought against: “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 [of the United States].” 42 U.S.C. § 1983 (emphasis added).
Thus, § 1983 limits liability to persons who violate constitutional rights, a limitation that courts have construed as not reaching county jails as institutions. In short,
the ‘County Jail' is not a proper defendant in this § 1983 case[ ], because it is not a ‘person.' See Grabow v. Southern State Correctional Facility, 726 F.Supp. 537, 538-39 (D.N.J. 1989) (stating that New Jersey Department of Corrections and state prison facilities not “persons” under § 1983); Mitchell v. Chester Cnty. Farms Prison, 426 F.Supp. 271, 274 (E.D. Pa. 1976); see also Marsden v. Federal BOP, 856 F.Supp. 832, 836 (S.D.N.Y. 1994) (county jail not an entity amenable to suit under 42 U.S.C. § 1983); Powell v. Cook Cnty. Jail, 814 F.Supp. 757, 758 (N.D. Ill. 1993) (Cook County Jail not a ‘person' under § 1983); McCoy v. Chesapeake Corr. Center, 788 F.Supp. 890, 893-94 (E.D. Va. 1992) (local jail not a ‘person' under § 1983).Crooks v. Passaic County Sheriff's Dep't/Jail, CIV. 07-0092 (FSH), 2007 WL 923330 (D.N.J. Mar. 26, 2007). See also Thomas v. Wilbert, CIV.A. 09-4796 GEB, 2011 WL 91001 (D.N.J. Jan. 11, 2011) (“County Correctional Institution is not a proper defendant in a § 1983 case and must be dismissed from this action”).
This limitation on the reach of proper defendants in a § 1983 civil rights case compels dismissal of this claim, as stated in this pro se complaint, with respect to the county jail, which is not a proper defendant in a civil rights action brought under § 1983.
E. Simpson's Claims Are Time Barred
Further, Simpson's complaint, which was filed on June 24, 2021, but alleges matters reaching back five to seventeen years from 2004 through 2016, runs afoul of the statute of limitations that govern state tort cases and federal civil rights lawsuits. When conducting a screening review of a pro se complaint under 28 U.S.C. § 1915, a court may consider whether the complaint is barred under the applicable statute of limitations. As the United States Court of Appeals for the Third Circuit recently explained when it affirmed the screening dismissal of a pro se complaint on statute of limitations grounds:
Civil rights claims are subject to the statute of limitations for personal injury actions of the pertinent state. Thus, Pennsylvania's two year statutory period applies to [these] claims. See Lake v. Arnold, 232 F.3d 360, 368 (3d Cir. 2000). The limitations period begins when the plaintiff knows or had reason to know of the injury forming the basis for the federal civil rights action. Gera v. Commonwealth of Pennsylvania, 256 Fed.Appx. 563, 564-65 (3d Cir.2007). Although we have not addressed the issue in a precedential decision, other courts have held that although the statute of limitations is an affirmative defense, district court may sua sponte dismiss a complaint under' 1915(e) where the defense is obvious from the complaint and no development of the factual record is required. See Fogle v. Pierson, 435 13
F.3d 1252, 1258 (10th Cir. 2006); see also Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656-57 (4th Cir. 2006) (citation omitted) (finding that a district court's screening authority under' 1915(e) “differentiates in forma pauperis suits from ordinary civil suits and justifies an exception to the general rule that a statute of limitations defense should not be raised and considered sua sponte").Smith v. Delaware Cnty. Court, 260 F. App'x. 454, 455 (3d Cir. 2008); see also Jackson v. Fernandez, No. 08-5694, 2009 WL 233559 (D.N.J. Jan. 26, 2009); Hurst v. City of Dover, No. 04-83, 2008 WL 2421468 (D. Del. June 16, 2008).
It is well settled that claims brought pursuant to 42 U.S.C. § 1983 are subject to the state statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266-67 (1985). In Pennsylvania, the statute of limitations for a personal injury action is two years. 42 Pa.C.S.' 5524. A cause of action accrues for statute of limitations purposes when the plaintiff knows or has reason to know of the injury that constitutes the basis of the cause of action. Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998); see also Nelson v. Cnty. of Allegheny, 60 F.3d 1010 (3d Cir. 1995).
While this two-year limitations period may be extended based upon a continuing wrong theory, a plaintiff must make an exacting showing to avail himself of this grounds for tolling the statute of limitations. For example, it is well settled that the Acontinuing conduct of [a] defendant will not stop the ticking of the limitations clock [once] plaintiff obtained requisite information [to state a cause of action]. On discovering an injury and its cause, a claimant must choose to sue or forego that remedy.” Barnes v. American Tobacco Co., 161 F.3d 127, 154 (3d Cir. 1998) (quoting Kichline v. Consolidated Rail Corp., 800 F.2d 356, 360 (3d Cir. 1986)). See also Lake v. Arnold, 232 F.3d 360, 266-68 (3d Cir. 2000). Instead:
The continuing violations doctrine is an “equitable exception to the timely filing requirement.” West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir.1995). Thus, “when a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred.” Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991).In order to benefit from the doctrine, a plaintiff must establish that the defendant's conduct is “more than the occurrence of isolated or sporadic acts.” West, 45 F.3d at 755 (quotation omitted). Regarding this inquiry, we have recognized that courts should consider at least three factors: (1) subject matter-whether the violations constitute the same type of discrimination, tending to connect them in a continuing violation; (2) frequency-whether the acts are recurring or more in the nature of isolated incidents; and (3) degree of permanence-whether the act had a degree of permanence which should trigger the plaintiff's awareness of and duty to assert his/her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate. See id. at 755 n. 9 (citing Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971, 981 (5th Cir.1983)). The consideration of “degree of permanence” is the most important of the factors. See Berry, 715 F.2d at 981.Cowell v. Palmer Twp, 263 F.3d 286, 292 (3d Cir. 2001).
In the instant case, Simpson's complaint is replete with allegations of misconduct that fall far beyond this two-year limitations period. (Doc. 1). Many of these alleged acts plainly had the degree of permanence that put Simpson on notice of his duty to timely file this complaint. Simpson has not done so and despite his general claims of illiteracy, has not provided grounds for tolling this limitations period for five years or more. Accordingly, these claims are all barred by the applicable two-year statute of limitations and should be dismissed.
F. The Plaintiff's Claim for a Specific Amount of Unliquidated Damages is Improper.
Further, we note that the plaintiff's demand for specified compensatory and punitive damages from the defendants totaling more than $1,000,000 in compensatory and punitive damages is inappropriate. Rule 12(f) of the Federal Rules of Civil Procedure imposes a duty on the Court to review pleadings and provides that the Court may upon its own initiative at any time order stricken from any pleading any immaterial matter. Fed.R.Civ.P. 12(f). Decisions regarding whether claims may be stricken from a complaint are properly presented to a United States Magistrate Judge for determination in the first instance. Singh v. Superintending School Committee of the City of Portland, 593 F.Supp. 1315 (D. Me. 1984).
In this case, it appears that the plaintiff's claim for a specified amount of unliquidated damages violates Local Rule 8.1 which provides, in part, that: “The demand for judgment required in any pleading in any civil action pursuant to Fed.R.Civ.P. 8(a)(3) may set forth generally that the party claiming damages is entitled to monetary relief but shall not claim any specific sum where unliquidated damages are involved. The short plain statement of jurisdiction, required by Fed.R. Civ.P.8(a)(1), shall set forth any amounts needed to invoke the jurisdiction of the court but no other.” Local Rule 8.1 (emphasis added). Since this prayer for relief violates Local Rule 8.1 by specifying a particular amount of unliquidated damages, it is further recommended that this specific dollar claim be stricken from the complaint. See Hayward v. Monroe Cnty. Corr. Facility, No. 3:18-CV-610, 2019 WL 407473, at *4 (M.D. Pa. Jan. 14, 2019), report and recommendation adopted sub nom. Haywood v. Martynowicz, No. 3:18-CV-00610, 2019 WL 398557 (M.D. Pa. Jan. 31, 2019); Holmes v. Eck, No. 3:16-CV-644, 2016 WL 1729489, at *5 (M.D. Pa. Apr. 20, 2016), report and recommendation adopted, No. 3:16CV644, 2016 WL 1756907 (M.D. Pa. Apr. 29, 2016).
G. The Complaint Should Be Dismissed Without Prejudice
Yet, while it is clear that Simpson cannot maintain this complaint in its current form, we recognize that in civil rights cases pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed in its entirety, See Fletcher-Hardee Corp. v. Pote Concrete Contractors, 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 (3d Cir. 2004).Accordingly, acting out of a surfeit of caution, it is recommended that the Court provide the plaintiff with an opportunity to correct these deficiencies in the pro se complaint by dismissing this deficient complaint at this time without prejudice to one final effort by the plaintiff to file an amended complaint containing any proper claims that he may have.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the Plaintiff's complaint be dismissed without prejudice to the plaintiff endeavoring to correct the defects cited in this report, provided that the plaintiff acts within 21 days of any dismissal order.
The plaintiff is further placed on notice that pursuant to Local Rule 72.3:
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.