Opinion
Civil Action 3:19-CV-1101
12-29-2022
LISA LOUGHNEY, As Administrator of the Estate of Ryan Lynady Plaintiff v. CORRECTIONAL CARE INC., et al., Defendants/Third Party Plaintiffs v. LACKAWANNA COUNTY, et al. Third Party Defendants
(ARBUCKLE, M.J.)
REPORT & RECOMMENDATION THIRD PARTY DEFENDANTS' MOTION TO DISMISS, DOC. 102
(MANNION, D.J.)
I. INTRODUCTION
Ryan Lynady committed suicide in prison. Lisa Loughney initiated this action asserting constitutional claims as well as negligence claims against the county, county employees, the medical company contracted to provide services at the prison, and the medical company's employees. The county, its employees, and a psychiatrist have settled their claims out of court. Only the claims against the medical company and its employees remain. The medical company and its employees, believing that the other Defendants still bear some responsibility for the damages, have filed a third party complaint seeking to bring indemnification and contribution claims against the Defendants who settled.
Currently pending before this Court is a motion by the county and its employees to dismiss the third party complaint. For the reasons explained herein, it will be RECOMMENDED that:
(1) The Third Party Lackawanna County Defendants' motion (Doc. 102) be GRANTED.
The CCI Defendants' claims against the following Third Party Defendants in the Third Party Complaint should be dismissed in their entirety:
a. Lackawanna County;
b. Mike Zemantauski;
c. Christopher Jenkins;
d. Delon Aldubayan;
e. John Gilroy;
f. Laureen Cummings;
g. Patrick O'Malley;
h. Tim Betti; and
i. Jerry Notarianni.
(2) Defendant Mallik has not sought dismissal of any claim in the Third Party Complaint, therefore the claims against Third Party Defendant Mallik should be permitted to proceed.
II. BACKGROUND & PROCEDURAL HISTORY
On December 15, 2009, Lackawanna County entered into an agreement with Defendant Correctional Care, Inc. (“Defendant CCI”), to provide medical services to Lackawanna County Prison. That contract includes an indemnity clause. (Doc. 103-1, p. 15).
On or around July 22, 2018, Ryan Lynady (“Lynady”) was arrested on state criminal charges. (Doc. 35, ¶ 44). Lynady was confined in Lackawanna County Prison pending trial on those charges. Id. During intake, prison staff noted that Lynady was an alcohol addict, suffered from mental illness, was actively under the influence of drugs or alcohol, and was found in possession of a needle. (Doc. 35, ¶¶ 45-46).
Nurse Beth Matalonis (“Defendant Matalonis”) performed the medical portion of Lynady's intake screening. (Doc. 35, ¶ 47). As part of this screening, Defendant Matalonis noted that Lynady was prescribed suboxone, was a habitual suboxone user, experienced withdrawal when suboxone is stopped, and suffered from an unspecified “mental illness.” (Doc. 35, ¶¶ 45, 48).
Following the intake screening, Lynady was placed on “thirty-minute detox watch,” until further notice. (Doc. 35, ¶ 51). The medical staff did not issue Lynady a new prescription for suboxone to be used while in prison. (Doc. 35, ¶ 49).
As it pertains to the CCI Defendants (CCI, Zaloga, Bogaski, Matalonis, Ketten, Mrykalo, and Wombacker), Plaintiff alleges that Lynady was not provided with appropriate mental health or detox care while at Lackawanna County Prison.
During the period of incarceration at issue, Lynady was examined by Nurses Holly Bogaski, Beth Matalonis, Cassandra Ketten, Akasha Mrykalo, and Jessica Wombacker. (Doc. 35, ¶ 69). Defendants Bogaski, Matalonis, Ketten, Mrykalo, and Wombacker did not refer Lynady to a doctor, did not give Lynady a bottom bunk order, did not place Lynady in the special needs unit, and failed to perform “adequate” medical detox checks (required once per shift, for a total of 3 checks per day) nine separate times over a period of four days. (Doc. 35, ¶ 71-73). Plaintiff alleges that, during the medical detox checks that were done, Defendants Bogaski, Matalonis, Ketten, Mrykalo, and Wombacker observed Lynady in extreme distress and took no action. (Doc. 35, ¶ 75).
On July 27, 2018, Lynady was found hanging in his cell from a sheet. (Doc. 35, ¶ 61). At the time he was found, it had been fifty-one minutes since the last staff check-in. Id.
On June 26, 2019, Plaintiff initiated this case alleging claims arising out of Lynady's death. (Doc. 1). On July 26, 2020, Plaintiff filed an amended complaint against the following seventeen Defendants:
(1) Lackawanna County;
(2) Correctional Care, Inc.;
(3) Patrick O'Malley, Lackawanna County Commissioner;
(4) Laureen Cummings, Lackawanna County Commissioner;
(5) Jerry Notarianni, Lackawanna County Commissioner;
(6) Edward Zaloga, president of Defendant CCI;
(7) Tim Betti, Warden of Lackawanna County Prison;
(8) Satish Mallik, a psychiatrist responsible for providing care at Lackawanna County Prison;
(9) John Gilroy, corrections officer at Lackawanna County Prison;
(10) Christopher Jenkins, corrections officer at Lackawanna County Prison;
(11) Delon Aldubayan, corrections officer at Lackawanna County Prison;
(12) Mike Zemantauski, corrections officer at Lackawanna County Prison;
(13) Holly Bogaski, nurse employed by Defendant CCI to provide care at Lackawanna County Prison;
(14) Cassandra Ketten, nurse employed by Defendant CCI to provide care at Lackawanna County Prison;
(15) Beth Matalonis, nurse employed by Defendant CCI to provide care at Lackawanna County Prison;
(16) Akasha Mrykalo, nurse employed by Defendant CCI to provide care at Lackawanna County Prison; and
(17) Jessica Wombacker, nurse employed by Defendant CCI to provide care at Lackawanna County Prison.
(Doc. 35).
In November 2020, Plaintiff's claims against all Defendants except the CCI Defendants were settled out of Court. (Doc. 69). The remaining claims against the CCI Defendants are:
Count 1: Monell claim against Defendants CCI and Zaloga;
Count 2: § 1983 denial of adequate medical care/failure to prevent suicide claim against Defendants Zaloga, Bogaski, Matalonis, Ketten, Mrykalo, and Wombacker;
Count 4: State Law Medical Negligence against Defendant Zaloga; and,
Count 5: State Law Corporate Negligence & Vicarious Liability against Defendants CCI and Zaloga.
On October 12, 2021, the CCI Defendants filed their answer. (Doc. 92). On October 26, 2021, the CCI Defendants filed a third party complaint. (Doc. 94). In that complaint, the CCI Defendants named the following third party defendants:
(1) Lackawanna County;
(2) Patrick O'Malley;
(3) Laureen Cummings;
(4) Jerry Notarianni;
(5) Tim Betti;
(6) Satish Mallik, M.D.;
(7) John Gilroy;
(8) Christopher Jenkins;
(9) Delon Aldubayan; and
(10) Mike Zemantauski.
(Doc. 94). Each Third Party Defendant is sued in his or her official and individual capacity. Third Party Defendants O'Malley, Cummings, Notarianni, and Betti are also sued as supervisors. Plaintiff alleges all Third Party Defendants were acting under color of state law.
These ten Third Party Defendants were all named as Defendants in Plaintiff's amended complaint, but were dismissed on November 24, 2020 pursuant to a settlement agreement.
In their third party complaint, the CCI Defendants assert the following legal claims:
(1) Count One: Contractual Indemnity by Defendant Correctional Care, Inc. against Third Party Defendant Lackawanna County;
(2) Count Two: Contractual Indemnity by Defendant Correctional Care, Inc. against Third Party Defendant Mallik; and
(3) Count Three: Contribution by the CCI Defendants against all of the named Third Party Defendants.
As relief, Defendant CCI requests the right to indemnification against Third Party Defendant Lackawanna County pursuant to the terms of their contract for the amount of any judgment entered in Plaintiff's favor. (Doc. 94, ¶¶ 30, 34). All of CCI Defendants also request contribution from all Third Party Lackawanna County Defendants (Lackawanna County, Zemantauski, Jenkins, Aldubayan, Gilroy, Cummings, O'Malley, Betti, and Notarianni) under the Uniform Contribution Among Tortfeasors Act, 42 Pa. Cons. Stat. § 8321 and pursuant to common law. (Doc. 94, ¶ 41).
On February 22, 2022, the Third Party Lackawanna County Defendants filed a motion to dismiss the third party complaint. (Doc. 102). On March 8, 2022, the Third Party Lackawanna County Defendants filed a brief in support. (Doc. 103). On March 22, 2022, the CCI Defendants filed a brief in opposition. (Doc. 104). On April 5, 2022, the Third Party Lackawanna County Defendants filed a reply. (Doc. 105).
On October 28, 2022, Third Party Defendant Mallik filed an answer. (Doc. 109).
Third Party Defendant Mallik has not sought dismissal of any claim asserted against him in the third party complaint.
The Third Party Lackawanna County Defendants' motion is ready to resolve.
III. LEGAL STANDARDS
A. Fed. R. Civ. P. 12(b)(6) Motion To Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to seek dismissal for “failure to state a claim upon which relief can be granted.” To assess the sufficiency of a complaint when dismissal is sought under Rule 12(b)(6), a court should: (1) take note of the elements a plaintiff must plead to state a claim; (2) identify mere conclusions which are not entitled to the assumption of truth; and (3) determine whether the complaint's factual allegations, taken as true, could plausibly satisfy the elements of a legal claim.
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011).
In order for his or her allegations to be taken as true, a plaintiff must provide some factual ground for relief, which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Thus, courts “need not credit a claimant's ‘bald assertions' or ‘legal conclusions' when deciding a motion to dismiss.” The court also need not assume that a plaintiff can prove facts that he or she has not alleged.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)).
Associated Gen Contractors of Cal. v. Cal St. Council of Carpenters, 459 U.S. 519, 526 (1983).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” The court must accept as true all allegations in the complaint, and any reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. This “presumption of truth attaches only to those allegations for which there is sufficient ‘factual matter' to render them ‘plausible on [their] face.' ” The plausibility determination is context-specific and does not impose a heightened pleading requirement.
Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals Corp, 609 F.3d 239, 262 n. 27 (3d Cir. 2010).
Jordan v. Fox Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted) (alternations in original).
Schuchardt, 839 F.3d at 347.
B. Fed. R. Civ. P. 14: Third Party Complaints
Rule 14 of the Federal Rules of Civil Procedure provides that “[a] defending party may, as third party plaintiffs, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it.” This Rule is procedural rather than substantive. It provides the procedural mechanism by which a third-party plaintiff may assert substantive rights to contribution or indemnity from third-party defendants.
“Third party plaintiffs must set forth a claim of derivative or secondary liability between the third-party plaintiff and the third-party defendant.” Put differently, “third party plaintiffs may not implead third-party defendants on a theory that the third-party defendant is solely liable to the plaintiff.”
Mount Pocono Municipal Auth. v. RKR Hess, No. 3:20-CV-1105, 2021 WL 3674639, at *2 (M.D. Pa. Aug. 19, 2021) (citing Apple Am. Grp., LLC v. GBC Design, Inc., 294 F.Supp.3d 414, 420 (W.D. Pa. 2018); Flickinger v. Toys R Us, Inc., No. 3:10-CV-305, 2010 WL 4384252, at *1 (M.D. Pa. 2010); Gamble v. Treetop Dev., LLC, No. 3:16-CV-01960, 2017 WL 3392356, at *2 (M.D. Pa. Aug. 7, 2017); Toberman v. Copas, 800 F.Supp. 1239, 1242 (M.D. Pa. 1992)); EQT Prod. Co. v. Terra Servs., LLC, 179 F.Supp.3d 486, 492 (W.D. Pa. 2016); and 6 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 1446 (3d ed.)).
Mount. Pocono Municipal Auth., 2021 WL 3674639 at *2 (cleaned up).
IV. ANALYSIS
A. The Parties Agree That Indemnification and Contribution is Not Available For the Remaining Constitutional Claims
As discussed above, there are four remaining claims against the CCI Defendants. Two of these claims (counts one and two) are constitutional claims. Two of these claims are negligence claims (counts four and five).
In support of their motion to dismiss, the Third Party Lackawanna County Defendants argue that indemnification and contribution are not available for Counts One and Two. They assert that any indemnification claim premised on these constitutional claims should be dismissed. (Doc. 103, pp. 20-21). The CCI Defendants agree that no claim of contribution or indemnification can be brought based on counts one and two of Plaintiff's amended complaint.
Accordingly, to the extent the CCI Defendants' third party complaint can be construed as alleging any claim of contribution or indemnification as to counts one and two of Plaintiff's amended complaint, these claims should be dismissed.
B. The CCI Defendants' Indemnity & Contribution Claims Against the Third Party Lackawanna County Defendants Are Barred by Pennsylvania's Political Subdivision Tort Claims Act
In their third party complaint, the CCI Defendants seek contribution and indemnification from the Lackawanna County Defendants based on two legal theories. In count one of the third party complaint, Defendant CCI seeks contractual indemnity from Defendant Lackawanna County. Then, in count three of the third party complaint, all of the CCI Defendants seek contribution from all of the Third Party Lackawanna County Defendants under the Uniform Contribution Among Joint Tortfeasors Act, 42 Pa. Cons. Stat. § 8321 and under common law.
The Third Party Lackawanna County Defendants argue that, to the extent the CCI Defendants seek indemnity or contribution for the negligence claims asserted in Plaintiff's amended complaint, the claims are barred by Pennsylvania's Political Subdivision Tort Claims Act (“PSTCA”), 42 Pa. Cons. Stat. § 8541 et seq.
The PSTCA provides legal immunity for government bodies and their employees unless their actions fall within certain enumerated categories of negligence. Third Party Defendant Lackawanna County is a local agency within the meaning of the PSTCA. By extension, its employees (Third Party Defendants Zemantauski, Jenkins, Aldubayan, Gilroy, Cummings, O'Malley, Betti, and Notarianni) also derive some immunity from the PSTCA.
See 42 Pa. Cons. Stat. §§ 8541, 8545; 42 Pa. Cons. Stat. § 8542(b) (listing exceptions as: vehicle liability; care, custody or control of personal property; real property; trees, traffic controls and street lighting; utility service facilities; streets; sidewalks; care, custody or control of animals; and sexual abuse).
See Mason v. Dauphin County Prison, No. 1:14-CV-1680, 2015 WL 6751015 at *8 (M.D. Pa. Nov. 5, 2015) (finding that Dauphin County is a local agency under the PSTCA).
42 Pa. Cons. Stat. § 8545 (“An employee of a local agency is liable for civil damages on account of any injury to a person or property caused by acts of the employee which are within the scope of his office or duties to the same extent as his employing local agency and subject to the limitations imposed by this subchapter.”).
The parties do not appear to dispute that the claims for which the CCI Defendants seek indemnity/contribution are not among the enumerated categories of negligence in the PSTCA.
1. The Contractual Indemnity Claim By Defendant CCI against Third Party Defendant Lackawanna County is Barred by the PSTCA
The Lackawanna County Defendants argue, based on Cromo v. SSC Corapolis Operating Co., LP, that their immunity under the PSTCA is a non-waivable, absolute defense that cannot be waived by contract.
No. 17-1625, 2018 WL 4403522 (W.D. Pa. Apr. 17, 2018) report and recommendation adopted by 2018 WL 4376808 (W.D. Pa. Sept. 13, 2018).
The CCI Defendants disagree. Instead they argue that Cromo is not applicable in this case because it: (1) is distinguishable on its facts; and (2) is unreported, and therefore is not binding on this Court.
In reply, the Third Party Lackawanna County Defendants argue that, in Cromo, the Court relied on other cases that involved facts similar to this case.
In Cromo, a Community College of Beaver County nursing student was placed at West Hills Nursing Home pursuant to an Educational Training Program agreement between West Hills and the Community College. While working at West Hills, the student tripped over a bed alarm cord and sustained numerous injuries. The student sued West Hills. West Hills attempted to assert a contribution claim against the Community College by filing a third party complaint. Like in this case, the Community College argued the third party complaint should be dismissed because it was immune under the PSTCA. Also like this case, West Hills sought indemnification based on the Community College's breach of a contractual agreement and not for its actions in tort. In Cromo, the Court framed the question presented as “whether a local agency can be held liable, pursuant to an indemnity agreement with another party, when that party is sued by a plaintiff for a claim arising in tort.” In the District Judge's decision adopting the Magistrate Judge's Report & Recommendation, he explained:
Under the Educational Training Program Agreement between West Hills and the Community College, “West Hills will not be responsible for any damages claimed by any nursing students at CCBC and that the parties agree to indemnify each other against any claims, costs, actions, suits, judgments, damages, liabilities, losses or expenses incurred as a consequence of any act or omission by the party from whom indemnification is sought.” Cromo, 2018 WL 4403522 at *1.
2018 WL 4403522 at *4.
The arguments with respect to waiver of immunity by virtue of a provision in a contract between West Hills and CCBC likewise fail. West Hills attempts to avoid the PSTCA, which enumerates the exceptions to local agency immunity, by asserting its argument relating to its contract claim and not tort claims addressed by the PSTCA. The PSTCA broadly states that absent qualification under the stated exceptions in § 8542(b), “no local agency shall be liable for any damages on account of any injury to a person or property caused by an act of the local agency or an employee thereof or any other person.” 42 Pa. Cons. Stat. § 8541.
The magistrate judge cited to McShea v. City of Philadelphia, 995 A.2d 334 (Pa. 2010), which observed that the “clear intent of the Tort Claims Act was to insulate the government from exposure to tort liability,” 995 A.2d at 341, and that a local agency could not waive its tort immunity by contract. Id. The Pennsylvania Supreme Court in City of Philadelphia v. Gray, 633 A.2d 1090, 1093 (Pa. 1993), previously rejected the proposition that the immunity could be waived by enactment of an ordinance. The magistrate judge noted that although the Pennsylvania Supreme Court has not squarely addressed the issue of waiver of its immunity recognized in the PSTCA by a political subdivision through an indemnity agreement, which West Hills relies on here, several other courts have and they determined that the PSTCA's tort immunity applies regardless whether the injured party seeks recovery directly from the local agency or a third party pursues
those damages from a local agency by contract action. (ECF No. 23 at 8-10).
The district court in Edison Learning, Inc. v. School District of Philadelphia, 56 F.Supp.3d 674 (E.D. Pa. 2014), for example, held that in the face of the immunity provided in the PSTCA, permitting a third party's claim for indemnity based on contract to recover damages paid on account of tort liability improperly would be “an end run around the PSTCA's carefully guarded liability shield.” Id. at 681. In Apfelbaum v. National R.R. Passenger Corp., No. Civ. A. 00-1788 2002 WL 32342481, at *4 (E.D. Pa. Oct. 17, 2002), the district court predicted that the Pennsylvania Supreme Court would hold that a local agency “may not do indirectly what it is expressly forbidden to do directly, and may not waive its immunity by ‘any procedural devise,' to include contract, and expose itself to liability foreclosed by the legislature.” 2002 WL 32342481, at *4 (holding indemnity clause in lease agreement unenforceable and that Commonwealth agency could not be made party to the suit). Similarly, in Lee v. Beaver County, No. 2192 C.D. 2012, 2013 WL 3545834 (Pa. Commw. Ct. July 15, 2013), the commonwealth court, following the Pennsylvania Supreme Court's instructions and holdings in McShea and Gray, rejected an argument that the local agency could be held liable for an underlying tort based upon assertion of an indemnity agreement-holding that the government immunity was not waived by its agreement to indemnify, and to find waiver, an exception in the PSTCA must apply. Id. at *4. Accordingly, the magistrate judge concluded “that CCBC could not waive its local immunity by means of Agreement with West Hills, [and] [b]ecause the underlying claim in this case sounds in tort, CCBC's liability would have to be based upon an exception to local immunity.” (ECF No. 24 at 10) (footnote omitted). This court agrees with the sound reasoning and analysis of the magistrate judge.
Cromo, 2018 WL 4376808 at *3-4.
As in Cromo, the CCI Defendants are attempting to assert a claim for indemnity based on contract to recover damages that may be paid on account of tort liability. Third Party Defendant Lackawanna County could not waive its immunity under the PSTCA by means of the indemnity clause in its contract with Defendant CCI. Furthermore, Third Party Defendant Lackawanna County would be immune from liability as to the underlying tort claims for which Defendant CCI seeks indemnification. Accordingly, it is recommended that count one of the CCI Defendants' third party complaint be dismissed because PSTCA immunity applies, and that immunity cannot be waived by contract.
2. The Contribution Claim by All CCI Defendants against All Lackawanna County Defendants is Barred by the PSTCA
Count three of the third party complaint should also be dismissed under the PSTCA as to the Third Party Lackawanna County Defendants.
As has been discussed, Third Party Defendant Lackawanna County is considered a local agency under the PSTCA. None of the tort claims for which the CCI Defendants seek indemnification fall within the enumerated exceptions to the PSTCA. Therefore, the CCI Defendants' contribution claim against Third Party Defendant Lackawanna County in count three of the third party complaint should be dismissed.
In addition to Third Party Defendant Lackawanna County, the CCI Defendants also seek contribution from eight of the local agency's employees (Zemantauski, Jenkins, Aldubayan, Gilroy, Cummings, O'Malley, Betti, and Notarianni) in count three of the third party complaint. The PSTCA grants county employees the same immunity as agencies, except that employees may be liable for their conduct if it amounts to “actual malice” or “willful misconduct.” Willful misconduct is synonymous with the term “intentional tort.” The CCI Defendants seek contribution for the remaining negligence claims. The CCI Defendants do not suggest that the conduct complained of was willful or amounts to actual malice. Therefore, I recommend that count three of the third party complaint be dismissed as to all of the Third Party Lackawanna County Defendants.
C. The Court Declines to Address the CCI Defendant's Request in the Alternative
In their brief in opposition, the CCI Defendants request in the alternative that: (1) they “should still be allowed to present evidence that it was the actions and/or inactions of County Defendants that caused Decedent's alleged injuries and violations of his Constitutional rights”; and (2) the Third Party Lackawanna County Defendants should appear on the verdict slip at trial for apportionment of fault.
These requests are premature at this stage of litigation, and would be better addressed closer to trial. Accordingly, the Court should decline to address them at this stage.
V. RECOMMENDATION
Accordingly, it is RECOMMENDED that:
(1) The Third Party Lackawanna County Defendants' motion (Doc. 102) be GRANTED.
The CCI Defendants' claims against the following Third Party Defendants in the Third Party Complaint should be dismissed in their entirety:
a. Lackawanna County;
b. Mike Zemantauski;
c. Christopher Jenkins;
d. Delon Aldubayan;
e. John Gilroy;
f. Laureen Cummings;
g. Patrick O'Malley;
h. Tim Betti; and i. Jerry Notarianni.
(2) Defendant Mallik has not sought dismissal of any claim in the Third Party Complaint, therefore the claims against Third Party Defendant Mallik should be permitted to proceed.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that 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 21 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.