Opinion
Civil Action 4:21-CV-2019
07-05-2022
JOSEPH A. MCQUAID, Individually and as the Administrator of the Estate of Dominic Ingle Plaintiff v. JOHN WETZEL, et al., Defendants
WILSON, D.J.
REPORT & RECOMMENDATION DEFENDANTS HARRY AND WETZEL'S MOTION TO DISMISS, DOC. 40
WILLIAM I. ARBUCKLE, U.S. MAGISTRATE JUDGE
I. INTRODUCTION
State inmate Dominic Ingle committed suicide while incarcerated at SCI Camp Hill. His estate, through his father Joseph A. McQuaid (“Plaintiff”) has initiated this action in federal court seeking damages against officials and employees of the Pennsylvania Department of Corrections, the medical company contracted to provide care at the facility, and employees of the medical company.
Currently pending before the Court is a motion to dismiss filed by two supervisory officials employed by the Pennsylvania Department of Corrections- DOC Secretary John Wetzel and SCI Camp Hill Superintendent Laurel Harry (collectively the “DOC Supervisor Defendants”). It is RECOMMENDED that the DOC Supervisor Defendants' motion to dismiss (Doc. 40) be GRANTED IN PART and DENIED IN PART as follows:
(1) The Monell claims against Defendants Wetzel and Harry as individuals asserted in Count II of the Complaint should be DISMISSED.
(2) In all other respects, the motion to dismiss should be DENIED.
II. BACKGROUND & PROCEDURAL HISTORY
Dominic Ingle had a long struggle with mental health. He spent some portion of his youth in mental health facilities, juvenile detention, or county prison. (Doc. 1, ¶ 40). Before his incarceration, Ingle used heroin and K2, and attempted suicide in 2006. (Doc. 1, ¶¶ 41-42). Ingle's history of mental illness and drug abuse was well-documented in his DOC files. Id.
In March 2017, Ingle was sentenced to three to six years for aggravated assault. (Doc. 1, ¶ 41). Ingle was sent to SCI Camp Hill. (Doc. 1, ¶ 42).
On March 25, 2017, Defendant Wanga, a nurse practitioner, examined Ingle and diagnosed Ingle with: bipolar disorder, depression, antisocial disorder, unspecified disruptive and impulse control disorder, and severe opioid disorder. (Doc. 1, ¶ 44). Defendant Wanga prescribed Risperdal for the impulsivity disorder, and Doxepin for depression. Id.
In June 2017, Ingle was transferred to Quehanna Boot Camp for one month. (Doc. 1, ¶ 46). While at the camp, Ingle's blood tests were negative for Doxepin. Id.
In late June 2017, Ingle was transferred to SCI Houtzdale. (Doc. 1, ¶ 47). While at SCI Houtzdale, Ingle was placed in general population. Id. Shortly after the transfer to SCI Houtzdale, Ingle stopped taking the antipsychotic and antidepressant medications he was prescribed. (Doc. 1, ¶ 48). This is documented in Ingle's medical records from the prison. Id.
While at SCI Houtzdale in 2017 and 2018, Ingle developed a gastrointestinal condition, diagnosed as irritable bowel syndrome. (Doc. 1, ¶ 49). Although he was treated with medication, Ingle experienced severe, chronic abdominal pain for over one year. Id.
In the fall of 2018, Ingle's mother died of a heroin overdose. (Doc. 1, ¶ 50). On October 29, 2018, Ingle told the mental health staff at SCI Houtzdale that he was “experiencing a lot of stress and anxiety and its [sic] just getting worse.” (Doc. 1 ¶ 51). The examination record also noted Ingle was feeling paranoid, had a racing heart, sweaty palms, was fidgeting, and was unable to focus. Id. The mental health staff referred Ingle to psychiatry. Id.
On December 3, 2018, Ingle saw a psychiatrist for the first time at SCI Houtzdale. (Doc. 1, ¶ 52). The psychiatrist diagnosed Ingle with social anxiety disorder and prescribed Zoloft. Id. A few days later, Ingle discontinued the medication and refused to attend group therapy. (Doc. 1, ¶ 53).
On August 20, 2019, Ingle was released on parole. (Doc. 1, ¶ 54).
In mid-September 2019, Ingle attempted suicide by cutting his wrist. (Doc. 1, ¶ 66). From September 27, 2019 through September 30, 2019, Ingle was involuntarily committed to York Hospital for psychiatric treatment. Id.
On October 14, 2019, Ingle attempted suicide by stabbing himself with a knife in his stomach and neck. (Doc. 1, ¶ 58). He was hospitalized from October 14, 2019 through October 21, 2019. Id. The attempted suicide left him with a large incision in his abdomen. Id. On October 21, 2019, Ingle was accused of abusing his girlfriend. (Doc. 1, ¶ 56). Ingle was sent to SCI Camp Hill. Id.
When he arrived at SCI Camp Hill in October 2019, Defendant Wanga evaluated Ingle's condition and ordered that he be housed in a personal observation cell. (Doc. 1, ¶ 59). Ingle was placed on a 10-minute close watch. Ingle's cell was furnished with a mattress, he was dressed in a suicide smock, he was not given utensils with his meals and drank from a Styrofoam cup. Id.
On October 22, 2019, Defendants Mushtaq and Wimer (from Psychiatry) examined Ingle. (Doc. 1, ¶ 60). During the examination, Ingle reported he consumed a combination of alcohol and Xanax and could not remember stabbing himself. Id. He also reported that he did not have suicidal thoughts on a regular basis. Id. Defendants Mushtaq and Wimer recommended that Ingle could be “stepped down to the Special Observation Unit.” (Doc. 1, ¶ 61).
On October 24, 2019, Ingle was reassigned to the Special Observation Unit (“SOU”). (Doc. 1, ¶ 65). While in the SOU, Ingle was able to move around and socialize. Id. He was still being monitored by mental health providers, but was no longer on 10-minute close watch. Id. Defendant Mushtaq prescribed Abilify and divalproex. (Doc. 1, ¶ 70).
On October 26, 2019, Ingle met with Defendants Mushtaq and Wimer a second time. (Doc. 1, ¶ 66). During the second examination, Ingle admitted that he had not been truthful about what led to his October 14, 2019 suicide attempt. Id. Ingle admitted that he was completely sober when he stabbed himself in the stomach. Id. He also reported that he had attempted suicide in September 2019 and had been involuntarily committed. Id. Ingle stated that he was feeling overwhelmed, hopeless, doomed, and trapped in his situation before both the September 2019 and October 2019 suicide attempts. Id. Defendant Mushtaq noted that Ingle was suffering from major depressive disorder. (Doc. 1, ¶ 68). After the meeting, Defendants Mushtaq and Wimer did not re-assess Ingle's suicide risk, increase Ingle's supervision level, or transfer Ingle back to a personal observation cell. (Doc. 1, ¶ 69).
On October 28, 2019, Defendant Wimer examined Ingle. (Doc. 1, ¶ 72). Ingle reported that he felt better and that his mood was not fluctuating as much since he started Abilify. Id. Ingle asked to be discharged from the SOU. Id.
On October 29, 2019, a Psychiatric Review Team, which included Defendants Mushtaq and Wimmer as well as other individuals, determined that Ingle was doing well enough to discharge from the SOU. (Doc. 1, ¶ 73).
Ingle was discharged to the SOU, and was moved to the Residential Treatment Unit (“RTU”). (Doc. 1, ¶ 74). In the RTU, Ingle shared a cell with another inmate and was not under constant monitoring. Id. Ingle was often in contact with Defendant Gerson. (Doc. 1, ¶ 75). Defendant Wanga supervised Defendant Gerson. Id. Ingle's mental health care was overseen by Defendant Mushtaq. Id. Ingle continued to see and receive prescribed medication Defendant Mushtaq. Id.
Ingle requested that his Abilify be given to him in the evening because it made him groggy. (Doc. 1, ¶ 76). Defendant Mushtaq agreed to the request. Id.
On November 12, 2019, Defendant Gerson met with Ingle. (Doc. 1, ¶ 77). Ingle reported that he was feeling more depressed and wanted to change his meds. Id. Defendant Gerson conveyed Ingle's request to Defendants Mushtaq and Wanga via email. Id.
On November 18, 2019, Defendant Wanga examined Ingle. (Doc. 1, ¶ 79). During the examination, Defendant Wanga and Ingle spoke about the October 2019 suicide attempt, and Ingle reverted back to his original characterization that he did not remember stabbing himself because he took Xanax. Id. They also discussed Ingle's request to change his medications. Id. Defendant Wanga increased Ingle's dosage of Abilify form 5mg to 10mg. (Doc. 1, ¶ 80).
On November 25, 2019, Ingle's cellmate told Defendants Fletcher and Gerson that Ingle had attempted suicide by tying a sheet to the ceiling and hanging himself. (Doc. 1, ¶ 82). The attempt was unsuccessful because the sheet broke. Id. Defendant Fletcher found the tied-up sheets under Ingle's mattress and took them. Id. The cellmate also reported that Ingle had been cutting his arms, and that the duty sergeant was looking for Ingle because Ingle's girlfriend called the facility to report that she and Ingle had fought during a phone call and that Ingle was suicidal. Id.
No correctional officer reported the cellmate's statements or the girlfriend's phone call to the mental health staff. (Doc. 1, ¶ 83).
Defendant Gerson did not attempt to discuss the suicide attempt with Defendant Fletcher. (Doc. 1, ¶ 85). However, Defendant Gerson did confront Ingle. (Doc. 1, ¶ 87). When confronted, Ingle denied attempting to hang himself, and reported that the marks on his arms were not fresh cuts. Id. Defendant Gerson did not request a medical consultation for the cuts or suicide attempt. (Doc. 1, ¶¶ 88, 90). Instead, Defendant Gerson told Defendant Fletcher and Unit Manager Srebro to report any suicidal behaviors. (Doc. 1, ¶ 88). No one attempted to limit Ingle's contact with his girlfriend. (Doc. 1, ¶ 89).
On November 28, 2019, a woman from outside the prison spoke to Defendant Gerson. (Doc. 1, ¶ 91). The woman reported that she was “concerned for Ingle's safety and that he might hurt himself.” Id. The woman was likely Ingle's girlfriend. (Doc. 1, ¶ 92). After the call, Defendant Gerson went to check on Ingle. (Doc. 1, ¶ 93). When Defendant Gerson arrived at Ingle's cell, Ingle was doing sit ups while he waited to use the phone. Id. Ingle reported that he had been cut off on a call with his girlfriend and she must have thought he hung up on her. Id. Ingle denied any suicidal thoughts. Id. Defendant Gerson took no steps to monitor Ingle's behavior more closely. (Doc. 1, ¶ 94). Defendant Gerson did not request a medical or psychiatric evaluation. (Doc. 1, ¶ 95).
On December 2, 2019, Defendant Gerson saw Ingle in his cell block. (Doc. 1, ¶ 96). Ingle told Defendant Gerson that Ingle was having a bad day. Id. Although he was initially reluctant to talk, Ingle eventually disclosed to Defendant Gerson that: (1) both Ingle and his girlfriend have mental health issues; (2) Ingle's relationship with his girlfriend is “not healthy”; and (3) in the past, Ingle tried to hurt himself to get his girlfriend's attention. Id. Ingle also requested that his dosage of Depakote be increased. Id. Defendant Gerson offered to convey that request to Defendant Wanga. Id.
On December 4, 2019, at 11:30 a.m., Ingle's girlfriend called Defendant Gerson. (Doc. 1, ¶ 99). The girlfriend was crying and saying that Ingle was going to kill himself. Id. Defendant Gerson went to Ingle and told him about the telephone call. (Doc. 1, ¶ 100). Ingle said he was not suicidal. Id. Defendant Gerson permitted Ingle to call his girlfriend three times. Id. She hung upon Ingle twice. Id. During the third call, the girlfriend would not let Ingle speak, and then hung up on him. Id. Five hours later, at approximately 4:45 p.m., Ingle's cellmate found Ingle hanging by a cord from his neck. (Doc. 1, ¶ 105). Ingle was rushed to the hospital. (Doc. 1, ¶ 109).
On December 15, 2019, Ingle died. Id. The coroner ruled that the cause of death was passive hanging by suicide. (Doc. 1, ¶ 110).
On December 1, 2021, Ingle's biological father Joseph McQuaid (“Plaintiff”) initiated this civil action. (Doc. 1). Plaintiff named the following Defendants:
(1) John Wetzel, Secretary of the Pennsylvania Department of Corrections;
(2) Laurel Harry, the Superintendent of SCI Camp Hill;
(3) Sergeant Fletcher, a correctional officer at SCI Camp Hill;
(4) Kristie Gerson, a psychological services specialist at SCI Camp Hill;
(5) Robert Wimer, a psychological services specialist at SCI Camp Hill;
(6) Kevin Wanga, a nurse practitioner at SCI Camp Hill;
(7) Dr. Saiqa Mushtaq, M.D., a doctor providing services at SCI Camp Hill;
(8) MHM Correctional Services, LLC, a medical company under contract with the Pennsylvania Department of Corrections to provide psychiatric and mental health services to inmates at SCI Camp Hill; and
(9) Correct Care Solutions LLC.
Plaintiff also asserts claims against ten “John Doe” corrections officers, and ten “John Doe” medical providers.
Plaintiff asserts the following claims:
(1) Eighth and Fourteenth Amendment claims for the failure to provide adequate medical care against all Defendants;
(2) A Monell and supervisory liability claim against Defendants Wetzel, Harry, MHM and CCS;
(3) A Medical Malpractice claim against Defendants Gerson, Wimer, Wanga, Mushtaq, MHM, CCS, and the John Doe medical providers;
(4) A Wrongful Death claim against all Defendants; and
(5) A Survival Act claim against all Defendants.
As relief, Plaintiff requests:
judgment in his favor against Defendants, jointly and severally, for wrongful death and survival damages, compensatory and punitive damages in an amount in excess of Seventy-Five Thousand Dollars ($75,000.00), plus interest, costs, attorney's fees, and other such relief as the Court deems just and proper.(Doc. 1, pp. 34, 36, 39-41).
On February 22, 2022, Plaintiff voluntarily dismissed his claims against Defendant Correct Care Solutions LLC. (Docs. 35, 39).
On March 4, 2022, the DOC Supervisor Defendants filed a motion to dismiss. (Doc. 40). On March 18, 2022, DOC Supervisor Defendants filed a brief in support. (Doc. 43). On April 14, 2022, Plaintiff filed a brief in opposition. (Doc. 47-1). On April 28, 2022, the DOC Supervisor Defendants filed a reply. (Doc. 42).
This motion has been fully briefed by the parties and is now ready to resolve.
III. LEGAL STANDARD
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). When reviewing a motion to dismiss, the court “must accept all factual allegations in the complaint as true, construe the complaint in the light most favorable to the plaintiff, and ultimately determine whether Plaintiff may be entitled to relief under any reasonable reading of the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In review of a motion to dismiss, a court must “consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents.” Id. at 230.
In deciding whether a complaint fails to state a claim upon which relief can be granted, the court is required to accept as true all factual allegations in the complaint as well as all reasonable inferences that can be drawn from the complaint. Jordan v. Fox Rothchild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). These allegations and inferences are to be construed in the light most favorable to the plaintiff. Id. The court, however, “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). Further, it is not proper to “assume that the [plaintiff] can prove facts that [he] has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
“A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. Id. To determine the sufficiency of a complaint under the pleading regime established by the Supreme Court, the court must engage in a three-step analysis:
First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where they are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.Santiago v. Warminister Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 675, 679). “In other words, a complaint must do more than allege the plaintiff's entitlement to relief” and instead must “‘show' such an entitlement with its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
As the Court of Appeals has 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 “merely consistent with” a defendant's liability, “stops short of the line between possibility and plausibility of ‘entitlement of relief.'” Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).Burtch v. Millberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
IV. ANALYSIS
A. PLAINTIFF'S MONELL CLAIMS AGAINST DEFENDANTS WETZEL & HARRY SHOULD BE DISMISSED
In Count II of the complaint, Plaintiff alleges:
COUNT II
VIOLATION OF DOMINIC INGLE'S CIVIL RIGHTS (MONELL CLAIMS) ....
123. The violations of Ingle's constitutional rights as set forth above were directly and proximately caused by the deliberate indifference of the highest-ranking officials within the SOC and
SCI-Cap Hill (Sec. Wetzel and Sup. Harry) and the employers of the medical and mental health care workers (MHM and CCS) to the need for hiring, training, supervision, investigation, monitoring, and/or discipline with respect to the provision of medical and mental health care to inmates such as Ingle, under their custody and control.
124. The violations of Ingle's constitutional rights as forth above were directly and proximately caused by the encouragement, tolerance, ratification of, and deliberate indifference of those high-ranking prison officials and private mental health and health care contractors to the policies and practices of their agents and employees of refusing, delaying, interfering with, or negligently providing timely and appropriate medical and mental health care and treatment to those in special need like Ingle.
125. The violations of Ingle's constitutional rights as forth above were directly and proximately caused by the abject failure of these high-ranking prison officials and private mental health and health care contractors, with deliberate indifference, to develop, implement, update, and/or enforce policies and practices to ensure that inmates like Ingle received timely, necessary, and appropriate medical and mental health care for serious mental illness.
126. On October 21, 2019 and for many days, weeks, months, and years before, these high-ranking prison officials and private mental health and health care contractors knew or should have known of the need to improve and correct failed hiring, training, supervision, investigation, monitoring, discipline, policies, and practices by virtue of inter alia other suicides of DOC inmates for years, statistics regarding such suicides that were widely known by the high-ranking prison officials and private mental health and health care contractors, and the aforementioned DOJ investigation of SCI-Cresson and the greater DOC, regarding the care of inmates with mental health issues, as alleged above and herein.
127. The above-referenced failures proximately caused Ingle's serious bodily injury and death, in that they directly and in natural sequence produced, contributed substantially, or enhanced such injuries and death.
128. The aforementioned acts and/or omissions constitute willful and wanton misconduct in disregard of the rights, health, wellbeing, and safety of Ingle, to his detriment and that of his father, Plaintiff Joseph McQuaid.(Doc. 1, ¶¶ 123-128).
The DOC Supervisor Defendants argue that Plaintiff cannot assert a Monell claim against the Commonwealth or its officials, and that Plaintiff has failed to plead facts to support an actionable supervisory liability claim against Defendant Harry or Wetzel. Specifically, the DOC Supervisor Defendants contend:
In Count II of the Complaint, Plaintiff purports to state a Monell claim against Defendants Wetzel and Harry. A Monell claim is not available against the Commonwealth or its officials, however. Moreover, Plaintiff otherwise has failed to state an actionable supervisory claim against Wetzel and Harry.
Under Section 1983, supervisors cannot be held liable under the theory of respondeat superior. There is an exception to this rule with regard to municipalities. As recently reiterated by the Middle District, “a limited exception to the personal-involvement requirement is reflected in the holding of Monell, where the Supreme Court held ‘that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies.'” Diorio v. Harry, 2020 WL 1140307, at *5 (M.D. Pa. Mar. 9, 2020) (citing Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978)). Under Monell, a municipality may be held liable when the execution of a policy or custom of such municipality or corporation “inflicts the injury” for which the plaintiff seeks redress.” Id. Importantly, however, “[t]he holding in Monell [] is restricted to municipalities and local government units and does not extend to
states, entities considered arms of the state, nor state officials in their official capacity.” Id.(emphasis added); see also Snider v. Alvarez, 2020 WL 6395499, at *23 (M.D. Pa. Nov. 2, 2020) (“Under a Monell theory of liability, a municipality is only liable under § 1983 for constitutional violations that are caused by its official policies and customs. The Commonwealth of Pennsylvania, however, is immune from liability.”) (citing Downey v. Pa. Dep't of Corr., 968 F.3d 299, 310, n.10 (3d Cir. 2020) (liability under Monell is limited to municipalities) (citing Monell, 436 U.S. at 690 n.54)). Because this matter does not involve municipal liability, Plaintiff's Monell claim fails as a matter of law.
Plaintiff has not otherwise stated a claim for supervisory liability. Plaintiff does not plead any specific actions taken by Wetzel or Harry, or what exactly they should have done differently, “whether with respect to specific training programs or other matters, that would have prevented the unconstitutional conduct.” Argueta v. U.S. Immigr. & Customs Enf't, 643 F.3d 60, 75 (3d Cir. 2011). No specific facts about deficiencies are pled, at all. Rather, Plaintiff points to a settled lawsuit from 2013 and statistics regarding suicides, drawing the implication from the number of suicides that there must be a policy or training deficiency warranting supervisory liability-but never identifying a particular deficiency common to all cases.
Plaintiff states that the Disability Rights Network filed a lawsuit in 2013, the same year that the Department of Justice conducted an investigation into SCI Cresson (which is closed). Doc. 1, ¶¶ 23-29. Further, Plaintiff claims that there has been an uptick in the number of suicide in the four years preceding Mr. Ingle's suicide, and that there were two other suicides at SCI-Camp Hill in the same year as Mr. Ingle's suicide (without context of prior numbers). See Doc. 1, ¶¶ 3137. Plaintiff alleges that Wetzel “vowed to change [his] ways and for a time, it appeared that steps had been taken to improve conditions for inmates with serious mental illnesses and lower suicide rates within the state prisons.” Doc. 1, ¶ 29. But, Plaintiff concludes that “any such measures that were implemented were ineffective and did not last.” Doc. 1, ¶ 30.
At no point, however, does Plaintiff identify any one specific measure that was implemented that was ineffective and did not last. Nor does
Plaintiff proffer a deficiency in current policy. Plaintiff does not plead any particular knowledge on the part of Secretary Wetzel of any ongoing policy problem. Plaintiff does not allege that they adopted policies that led to harm. The claim is based upon numbers alone, and there is no case law indicating that numbers alone are sufficient to state a constitutional claim for supervisory liability.
Rather, the law is clear that there must be actual knowledge of a discrete problem. “[I]n the absence of facts concerning specific actions by each of the supervisory defendants” a Section 1983 claim of individual supervisory liability is “conflate[ed]” with “one of municipal liability.” Gaymon v. Esposito, 2013 WL 4446973, at *10 (D.N.J. Aug. 16, 2013)(citing Phillips v. Roane County, Tenn., 534 F.3d 531, 543 (6th Cir. 2008)). Plaintiff must allege that the supervisory defendants had “contemporaneous, personal knowledge” of precise policies that are not being followed. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (dismissing supervisory liability claim against individual government defendant where the operative complaint “did not allege any facts indicating that Attorney General Fisher personally directed her transfer [or that] ....Attorney General Fisher had contemporaneous, personal knowledge of her transfer and acquiesced in it.”). Moreover, “[a]llegations of participation or actual knowledge and acquiescence ... must be made with appropriate particularity.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
Here, no claim has been stated against Wetzel, because beyond raw data on the number of suicides, there are no facts regarding what he did wrong specifically. The same goes for the claim against Superintendent Harry. As to Harry, Plaintiff alleges that, “[i]n 2019 alone, and prior to Ingle's suicide, two other inmates at SCI-Camp Hill killed themselves by hanging in January and June 2019.” Doc. 1, ¶ 33. Plaintiff states that, “[a]t the time of those suicides, and when Ingle ultimately hanged himself in his cell on December 4, 2019, Sup. Harry was the Superintendent of SCI-Camp Hill.” Doc. 1, ¶ 34.
There are no other operative facts against Superintendent Harry. The fact that there were other suicides, alone, cannot give rise to constitutional liability, not only because the theory is unsupported by clearly established law, but also because there are no allegations that
Harry knew of a particular policy issue that could have prevented the tragedies.
Plaintiff has failed to meet the burden of stating a supervisory claim in this case because there are no allegations stated with particularity, let alone allegations regarding contemporaneous knowledge of a discrete policy issue, giving rise to constitutional liability.(Doc. 43, pp. 3-8) (internal footnote omitted).
In response, Plaintiff argues that Defendants Wetzel and Harry failed to adequately train their employees, and had a custom of routinely overlooking inmates with mental health issues. Specifically, Plaintiff contends:
In the instant case, reviewing the allegations in the Complaint in the light most favorable to Plaintiff, it is clear that Plaintiff has set forth a policy or custom by Defendants Wetzel and Harry that served to cause Ingle's deprivation of his constitutional rights. Plaintiff has alleged that Defendants Wetzel and Harry were aware of the increase in suicides in the DOC and SCI-Camp Hill in the years and months leading up to Ingle's suicide. Exhibit “A” at ¶¶ 8, 9, 23, 29, 34, 37. Yet their policies and customs routinely overlooked people like Ingle with mental health issues, including suicidal ideation and recent suicide attempts. On numerous occasions during Ingle's incarceration at SCI-Camp Hill, individuals working on behalf of the DOC and SCI-Camp Hill failed to adhere to the flawed policies which allowed Ingle to be stepped down from more intensive oversight by mental health professionals, either by the deficiencies of the policies or lack of training in those policies by Defendants Wetzel and/or Defendant Harry, who were responsible for the DOC and SCI-Camp Hill, respectively. Id. at ¶¶ 62, 66-71, 73- 74, 82-85, 89, 90, 93-104, 123128.
The failure to train those who oversaw inmates with mental health issues and intervene on behalf of those inmates has already been recognized by this Court in the matter of Kern v. Ramos, 2020 U.S. Dist. LEXIS 187703 (M.D. Pa. October 7, 2020) when Magistrate Judge Carlson determined that even “thin and conclusory” allegations
of policy or custom were sufficient as a matter of law to survive a motion to dismiss, so that the plaintiff could take discovery focused on those policies, procedures, and customs to determine if there are sufficient facts to support those claims. Accordingly, this Court should similarly deny Defendants' motion at such an early stage, as Plaintiff has alleged the violations of policies, procedures, and customs with regard to the DOC and SCI-Camp Hill's treatment of inmates with serious mental illness, including suicidal ideation and suicide attempts, that at the very least demand to be explored in discovery.(Doc. 47-1, pp. 10-12).
As the Third Circuit has noted, Monell “sets forth the test to determine if municipalities, not individuals, can be held liable under § 1983.” Lepre v. Lukus, 602 Fed.Appx. 864, 869 n.4 (3d Cir. 2015); see also Oren v. Pennsylvania Dep't of Corrections, 2022 WL 710188 at *3 n.5 (M.D. Pa. Mar. 9, 2022) (dismissing Monell claims asserted against individual defendants for failure to state a claim); Moore v. Solanco Sch. Dist., 471 F.Supp.3d 640 (E.D. Pa. 2020) (“Monell liability applies only to municipalities, not to individuals”).
B. PLAINTIFF'S INDIVIDUAL CAPACITY CLAIMS AGAINST DEFENDANTS WETZEL & HARRY SHOULD BE PERMITTED TO PROCEED
In Count I of the complaint, Plaintiff alleges:
COUNT I
VIOLATION OF DOMINICK INGLE'S FEDERAL CIVIL RIGHTS AS GUARANTEED BY THE EIGHT AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION PURSUANT TO 42 U.S.C. § 1983
....
114. At all relevant times, Defendants, acting under color or law, were deliberately indifferent to Ingle's serious medical needs in violation of the Eighth Amendment's prohibition of cruel and unusual punishment and the Fourteenth Amendment's rights of due process.
115. In particular, Defendants were deliberately and recklessly indifferent to Ingle's extreme suicide risk and vulnerability to suicide, which they knew and/or should have known of on or before October 21, 2019 and continuing until December 4, 2019.
116. During his time at SCI-Camp Hill from October 21, 2019, up until just hours before he hanged himself in his cell on December 4, 2019, Defendants had actual knowledge of Ingle's serious mental illness, history of failed suicide attempts, suicidal ideation, and threats from witnesses with knowledge that Ingle either threatened or attempted to commit suicide while incarcerated at SCI-Camp Hill, all of which were indicative of a high suicide risk, as set forth in DOC's own policies, as set forth herein and above.
117. Despite such knowledge, Defendants ignored, if not exacerbated, Ingle's obvious suicidal propensities and failed to take necessary and available precautions which would have saved his life, such as housing Ingle in the appropriate unit where he could be monitored or treated; providing the appropriate mental health care, diagnosis and treatment, including medications, counseling, and trained medical and mental health professionals; ensuring that he was observed at all times; providing an anti-suicide smock and blanket; denying him access to the means to hang himself in the form of the cord from a laundry bag; placing him in a cell where he could not hang himself; and otherwise denying him the means to commit suicide.
118. At the very least, Defendants should have and were obligated to follow the policies and procedures of the DOC regarding the recognition and prevention of suicide, the purpose of which was
to protect and enhance the mental health of inmates and to protect them from harming themselves.
119. Defendants' failure to treat, monitor, and address Ingle's legitimate and serious medical needs transcended contemporary standards of decency, are shocking to the conscience of mankind, and violated his rights under the Eighth Amendment of the United States Constitution to be free from cruel and unusual punishment and his Fourteenth Amendment rights to due process.
120. Defendants' unreasonable, egregious, malicious, willful, and intentional acts and omissions constitute a deliberate indifference and callous disregard for Ingle's life, safety, and well-being.
121. As a direct and proximate result of Defendants' unlawful and unconstitutional behavior, Ingle suffered serious bodily harm and death, and Ingle's father, Plaintiff's Joseph McQuaid, suffered other catastrophic damages as set forth below.(Doc. 1, ¶¶ 114-121).
DOC Supervisor Defendants argue that Count I should be dismissed because they were not personally involved in the underlying incident at issue in this case. Specifically, the DOC Supervisor Defendants argue:
Plaintiff must demonstrate personal involvement by Wetzel and Harry in the wrongdoing to maintain them as defendants to the constitutional claims. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). To survive a motion to dismiss, each defendant must be shown, through the complaint's allegations, to have played an affirmative part in the events or occurrences upon which Plaintiff's claims are based. Rode, 845 F.2d at 1207; Rizzo v. Goode, 423 U.S. 362 (1976). Vicarious liability is inapplicable to § 1983 suits; instead “a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676 (emphasis added). Finally, it is insufficient to survive
a motion to dismiss for a complaint to merely hypothesize about a defendant's personal involvement, nor is a court required to assume that the plaintiff can use the discovery process to prove facts not alleged. Evancho v. Fisher, 423 F.2d 347, 353-354 (3d Cir. 2005).
Here, as discussed, there are no facts implicating Wetzel and Harry in the underlying incident. There are no allegations that either defendant ever personally interacted with Mr. Ingle or that they had personal knowledge of his circumstances, whatsoever. There are no allegations that they directed with individual defendants with respect to Mr. Ingle's care. The allegations against Wetzel and Harry amount only to respondeat superior. Thus, no Section 1983 claim can be maintained against these Defendants.(Doc. 43, pp. 8-9).
In response, Plaintiff appears to argue that Defendants Wetzel and Harry are liable as supervisors due to a failure to train and supervise, and because they were aware of the “suicide problem” and failed to address it. Specifically, Plaintiff contends:
Plaintiff has alleged that Defendants Wetzel and Harry were aware of the suicide problem in the DOC and SCI-Camp Hill and that their procedures were not providing the adequate medical care to those inmates with mental health issues such as suicidal ideation and suicide attempts. Exhibit “A” at ¶¶ 31-36. Plaintiff alleged that Defendant Wetzel recognized the shortcomings in the DOC policy, and wanted to do something to change those policies, but nothing was done before Ingle took his own life while an inmate at SCI-Camp Hill. Id. at ¶¶ 37-39. Plaintiff detailed in his Complaint how the DOC and SCI-Camp Hill policies failed Ingle, who was obviously suicidal and in need of stricter supervision and oversight. Yet, whether it was the policies or the failure of those responsible for enforcing those policies, Defendants Wetzel and Harry were “personally involved” in those failures, as they were aware that the policies, practices, and customs of the DOC and SCI-Camp Hill failed to provide timely and appropriate medical and mental health care treatment to those in
special need, like Ingle, while also failing to properly hire, train, supervise, investigate, monitor, and discipline those responsible for caring for inmates with special medical and mental health needs, such as Ingle. Id. at ¶¶ 123-127. Accordingly, Plaintiff has sufficiently alleged that Defendants Wetzel and Harry were “personally involved” in the constitutional deprivations alleged, and as such, their Motion should be denied.(Doc. 47-1, pp. 13-14).
“Defendants in civil rights actions ‘must have personal involvement in the alleged wrongs to be liable and cannot be held responsible for a constitutional violation which he or she neither participated in nor approved.'” Saisi v. Murray, 822 Fed.Appx. 47, 48 (3d Cir. 2020) (quoting Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007).
There are two theories of supervisory-type liability that could be applicable in this case: (1) “Individual Defendant who are policymakers may be liable under § 1983 if it is shown that such defendants, ‘with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.'” A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Detention Ctr., 372 F.3d 572, 586 (3d Cir. June 10, 2004) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)); and (2) an individual defendant, who is a supervisor “may be personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in his subordinates' violations.” A.M. ex rel. JMK, 372 F.3d at 586 (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995).
The DOC Supervisor Defendants are correct that Plaintiff has not alleged any facts that suggest Defendant Wetzel or Harry ever interacted with Ingle. Therefore, Plaintiff has not alleged that Defendant Harry or Wetzel directly participated in the violation of Ingle's constitutional rights. However, Plaintiff has pleaded enough facts to support a claim based on a theory of supervisory liability. Plaintiff alleges that Defendants Wetzel and Harry were responsible for training and supervising the non-supervisory Defendants, and that these Defendants ignored Ingle's suicide attempt at the institution, ignored Ingle's self-injurious behavior, and failed to take reasonable action when notified by Ingle's girlfriend that Ingle planned to commit suicide. Accordingly, the individual capacity claims against Defendants Wetzel and Harry based on a theory of supervisory liability should be permitted to proceed.
C. WHETHER THE § 1983 CLAIMS AGAINST DEFENDANTS WETZEL & HARRY SHOULD BE DISMISSED BECAUSE THESE DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY
The DOC Supervisor Defendants argue that they are entitled to qualified immunity because there is no robust consensus of caselaw establishing supervisory liability based on the number and rate of suicides. Specifically the DOC Supervisor Defendants contend:
In this instance, there is no robust consensus of case law establishing supervisory liability in and of itself, let alone the theory based solely on the number and rate of suicides in an institution or system. And, existing binding authority indicates that there is no clearly established law as to supervisory responsibilities regarding suicide screenings. The Supreme Court overturned the Third Circuit on this score in Taylor v. Barkes, 575 U.S. 822 (2015). There, the Court stated:
No decision of this Court establishes a right to the proper implementation of adequate suicide prevention protocols. No decision of this Court even discusses suicide screening or prevention protocols. And “to the extent that a ‘robust consensus of cases of persuasive authority' ” in the Courts of Appeals “could itself clearly establish the federal right respondent alleges,” City and County of San Francisco v. Sheehan, 575 U.S. ___, ___, 135 S.Ct. 1765, 1779, ___ L.Ed.2d ___(2015), the weight of that authority at the time of Barkes's death suggested that such a right did not exist. See, e.g., Comstock v. McCrary, 273 F.3d 693, 702 (C.A.6 2001) (“the right to medical care for serious medical needs does not encompass the right to be screened correctly for suicidal tendencies” (internal quotation marks omitted)); Tittle v. Jefferson Cty. Comm'n, 10 F.3d 1535, 1540 (C.A.111994) (alleged “weaknesses in the [suicide] screening process, the training of deputies[,] and the supervision of prisoners” did not “amount to a showing of deliberate indifference toward the rights of prisoners”); Burns v. Galveston, 905 F.2d 100, 104 (C.A.5 1990) (rejecting the proposition that “the right of detainees to adequate medical care includes an absolute right to psychological screening”); Belcher v. Oliver, 898 F.2d 32, 34-35 (C.A.4 1990) (“The general right of pretrial detainees to receive basic medical care does not place upon jail officials the responsibility to screen every detainee for suicidal tendencies.”).
Taylor, 575 U.S. at 825. The Taylor case is good law, and no opposite robust consensus has been established. Thus, because the Plaintiff cannot point to a robust consensus of case law establishing
supervisory liability in this context, and particularly any case law establishing liability on numbers of suicides alone, they are entitled to qualified immunity.(Doc. 43, pp. 14-15).
In response, Plaintiff argues that the “right” at issue involves Ingle's right to meaningful mental health treatment and suicide prevention care where the defendant prison official knew of the inmate's serious mental illness, history of self-harm, and previous suicide attempts. Specifically, Plaintiff argues:
Defendants finally seek the protection of qualified immunity for their alleged constitutional violations against Ingle, by asserting that there is no “clearly established right” asserted to have been violated by Plaintiff in this matter. However, that argument fails, as Defendants misunderstand the very nature of the claims in this matter. Defendants rely almost exclusively on the Supreme Court's holding in Taylor v. Barkes, 575 U.S. 822 (2015), to argue that Plaintiff has not pled that an established right of Ingle's was violated in this matter. In Taylor, the Court determined that there was no right to be properly screened for suicide upon entry to prison. Id.
However, that is not the clearly established right in this matter. In this case, the right that has been alleged to have been violated is not about suicide screening of inmates, but the right not to have an inmate's serious medical needs be ignored by prison officials. Palakovic, 854 F.3d at 222. It has long been recognized in the Third Circuit that the definition of serious medical need includes someone who is particularly vulnerable to suicide. See Colburn v. Upper Darby Township (Colburn I), 838 F.2d 663 (3d Cir. 1988); Colburn v. Upper Darby Township (Colburn II), 946 F.2d 1017 (3d Cir. 1991); and Woloszyn v. County of Lawrence, 396 F.3d 314 (3d Cir. 2005). Plaintiff has sufficiently alleged that he was particularly vulnerable to suicide, which right Defendants failed to protect. Exhibit “A” at ¶¶ 40-104. As such, for purposes of qualified immunity, precedent establishes that "particular conduct," such as that alleged against Defendants, violates Plaintiff's clearly established right against
indifference to Plaintiff's particular vulnerability to suicide, and thus, Defendants' Motion should be denied.(Doc. 47-1, pp. 14-15).
In reply, the DOC Supervisor Defendants argue:
In their brief, the Commonwealth Defendants extensively outline case law, including decisions by the Court of Appeals for the Third Circuit and the Supreme Court of the United States, standing for the proposition that, in determining whether qualified immunity applies, the right at issue must be set forth in a “. . . more particularized, and hence, more relevant, sense . . . in light of the case's specific context, not as a broad general proposition.” Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 638 (3d Cir. 2015). In other words, to determine whether the constitutional right at issue is clearly established, the Court “must first frame the precise contours of that right,” the Court is “not to define clearly established law at a high level of generality,” rather; it “must define the right allegedly violated at the appropriate level of specificity.” Id.; Mullenix v. Luna, 136 S.Ct. 305, 308 (2015).
After the right is defined at the appropriate level of specificity, it is the Plaintiff's burden to produce a “robust consensus of case law” placing the state actor on notice that his actions are “clearly established” to be wrong. See Spady, 800 F.3d at 637 (“for a right to be clearly established there must be applicable precedent from the Supreme Court,” or “a robust consensus of cases of persuasive authority in the Court of Appeals. . .”). In other words, “existing precedent must have placed the statutory or constitutional question beyond debate.” White v. Pauly, 137 S.Ct. 548, 551 (Jan. 9, 2017).
Plaintiff ignores this binding jurisprudence, relying on a general proposition to carry the day. Plaintiff states that the question at issue is “the right not to have an inmate's serious medical needs be ignored by prison officials.” Doc. 47-1 at 14. This is a general rule of law related to deliberate indifference. Moreover, while the Plaintiff cites Third Circuit case law, none are directly analogous to the facts at hand. The Colburn cases involve an officer with direct knowledge as to the suicidal inmate's intoxication. And in Woloszyn, the Third Circuit rejected supervisory claims for similar reasons raised herein,
including because the Plaintiff failed to “specify training” that could have been conducted. In sum, Plaintiff has failed to defeat the Defendants' entitlement to qualified immunity.(Doc. 48, pp. 3-4).
“Qualified immunity protects a government official from liability for civil damages as long as his conduct did not violate clearly established rights of which a reasonable person would have known.” Naisha v. Metzger, No. 20-3056, 2021 WL 5632063 at *2 (3d Cir. Dec. 1, 2021) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Although immunity questions should be resolved at the earliest possible stage in litigation, qualified immunity will only attach at the motion to dismiss stage when the immunity is established on the face of the complaint. Adami v. Cty of Bucks, 2020 WL 5849339 at *2 (E.D. Pa, Oct. 1, 2020).
Qualified immunity applies unless: (1) the facts alleged by the plaintiff show the violation of a constitutional right; and (2) the law was clearly established at the time of the violation. Naisha, 2021 WL 5632063 at *2 (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). The DOC Supervisor Defendants' argument concerns the second requirement-whether the violation of Plaintiff's constitutional rights alleged in the complaint was clearly established when it occurred in December 2019. This determination requires the court to engage in a two-part inquiry: first, the court must define the right “in light of the specific context of the case, not as a broad general proposition,” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); second, the court must determine whether the right was clearly established at the time of the alleged violation, Saucier v. Katz, 533 U.S. 194, 202 (2001).
As this Court recently explained:
“In determining whether a right has been clearly established, the court must define the right allegedly violated at the appropriate level of specificity.” Sharp, 669 F.3d at 159. If the right is defined too broadly, at a high level of generality, it risks “converting] the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.” Anderson v. Creighton, 483 U.S. 635, 639 (1987). “We are thus required to frame the right at issue in a more particularized, and hence more relevant, sense, in light of the case's specific context, not as a broad general proposition.” Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 638 (3d Cir. 2015) (citations and internal quotation marks omitted).
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.Anderson, 483 U.S. at 640 (citation omitted). Cuvo v. Pocono Mountain Sch. Dist., 3:18-CV-1210, 2022 WL 836821 at *6 (M.D. Pa. Mar. 21, 2022).
In this case, Plaintiff argues Ingle's Eighth Amendment right to adequate medical care was clearly established at the time of the alleged misconduct in this case.
The DOC Supervisory Defendants, relying on Taylor v. Barkes, attempt to define the right at issue as a right to “supervisory responsibilities regarding suicide screenings.” This definition of the “right” is too narrow to encompass the allegations in Plaintiff's complaint. In Taylor, the case involved a claim that supervisory officials of a state department of corrections failed to supervise employees of the company contracted to provide medical services, which resulted in understaffing and the failure to utilize the proper suicide screening questionnaire. Third Circuit defined the right at issue as “an incarcerated person's right to proper implementation of adequate suicide prevention protocols.” Barkes v. First Correctional Medical, Inc., 766 F.3d 307, 327-38 (3d Cir. 2014). The Supreme Court held that, the “right” as defined by the Third Circuit was not clearly established at the time the inmate committed suicide-in 2004.
In the Taylor case, an inmate held on a parole violation was screened for suicide risk, but the screening did not comply with the current standards set by the National Commission on Correctional Health Care. Tragically, no suicide risk was identified and the inmate committed suicide shortly after he entered the facility. Medical care in the facility was provided by an independent company contracted by the Delaware Department of Corrections. The contract required that the company provide adequate staffing and care consistent with the current NCCHC standards. The plaintiff in that case alleged that the Prison Commissioner and Warden of the institution failed to adequately supervise the company and the company's employees, and due to that lack of supervision inmates received care that did not comply with current NCCHC standards and the company routinely short-staffed the facility to increase profits.
Unlike in Taylor, Plaintiff's allegations go beyond a supervisor's responsibility ensure that the company contracted to provide medical services is following the terms of that contract. Plaintiff alleges that Defendants Wetzel and Harry are responsible for training and supervising the non-supervisory corrections officers who knew that Ingle attempted suicide and was cutting himself and then failed to report that behavior to medical staff. Furthermore, because the “right” at issue in this case is distinguishable from the right in Taylor, the DOC Supervisor Defendants have not shown that the right asserted by Plaintiff was not clearly established. Therefore, the DOC Supervisor Defendants have not met their burden of showing that the “right” asserted by Plaintiff in this case was not clearly established at the time it was violated-in December 2019. Yentzer v. Potter Cty, No. 2022 WL 903937 at *5 (M.D. Pa. Mar. 28, 2022) (“It is defendants' burden, not [Plaintiff's] or the court's, to establish that qualified immunity applies.”). Accordingly, I am not persuaded by the DOC Supervisor's argument that qualified immunity should attach at this stage of the case.
V. RECOMMENDATION
Accordingly, it is RECOMMENDED that the DOC Supervisor Defendants' motion to dismiss (Doc. 40) be GRANTED IN PART and DENIED IN PART as follows:
(1) The Monell claims against Defendants Wetzel and Harry as individuals asserted in Count II of the Complaint should be DISMISSED.
(2) In all other respects, the motion to dismiss should be DENIED.
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 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.