Opinion
CIVIL 1:21-CV-02075
10-11-2022
S ATANACIO-REYES, CARLOS ATANACIO-REYES, Plaintiff, v. ERIN AYERS, et al., Defendants.
RAMBO, JUDGE.
REPORT AND RECOMMENDATION
SUSAN E. SCHWAB, UNITED STATES MAGISTRATE JUDGE.
I. Introduction.
Plaintiff Carlos Atanacio-Reyes (“Atanacio-Reyes”) claims that, while incarcerated at SCI Benner Township, defendants-fifteen nurses employed by the Pennsylvania Department of Corrections (“DOC”)-refused to provide him any treatment for his chronic diabetes for some period of time, and for another period of time have refused to treat Atanacio-Reyes in a timely manner. Currently pending are the defendants' motions to dismiss Atanacio-Reyes' complaint. For the reasons set forth below, we recommend that the court dismiss the action with leave for Atanacio-Reyes to amend.
Atanacio-Reyes' complaint is unclear about how long he claims to have been refused treatment versus how long he has been treated in what he perceives as an untimely manner, as discussed further below.
Defendant Erin Ayers filed one motion to dismiss the complaint, and the other fourteen defendants (“Commonwealth Defendants”), who are jointly-represented, filed another motion to dismiss the complaint. For purposes of this report and recommendation, we will refer to these two motions as Ayers' Motion to Dismiss and Commonwealth Defendants' Motion to Dismiss.
II. Background and Procedural History.
Atanacio-Reyes began this action by filing a complaint along with an application to proceed in forma pauperis. After we granted Atanacio-Reyes' application to proceed in forma pauperis, all defendants waived service. Defendants then filed their motions to dismiss.
The complaint names fifteen defendants all employed by DOC as nurses at State Correctional Institute (“SCI”) Benner Township: (1) Erin Ayers (“Ayers”); (2) Jeffrey Burkhart (“Burkhart”); (3) Nathaniel Kowalski (“Kowalski”); (4) Shelley Shimmel (“Shimmel”); (5) Lisa Shaw (“Shaw”); (6) David Goodman (“Goodman”); (7) Philip Rogers (“Rogers”); (8) Nicholas Davis (“Davis”); (9) Shana Kightlinger (“Kightlinger”); (10) Lori Jozefik (“Jozefik”); (11) Sarah Wicker (“Wicker”); (12) Meagan Snowberger (“Snowberger”); (13) Kelly Evans (“Evans”); (14) Katherine McCormick (“McCormick”); and (15) Jeffrey Bolman (“Bolman”). Doc. 1. The following facts are taken from Atanacio-Reyes' complaint.
Atanacio-Reyes has been an inmate at SCI Benner Township since January 14, 2020. Prior to this placement, he was an inmate at other state correctional institutes, including SCI Fayette immediately prior to his transfer to SCI Benner Township on January 14, 2020. Throughout his incarceration, and, indeed, for over twenty years, Atanacio-Reyes has been a chronic diabetic. As such, Atanacio-Reyes received treatment for diabetes consistently prior to his transfer to SCI Benner Township. Upon his transfer to SCI Benner Township, however, his treatment ceased for a period of months. When his treatment resumed, and even though Atanacio-Reyes is supposed to be given insulin 20 to 30 minutes prior to every meal, “[t]he above Defendants herein, named in this case, refused to do that,” and instead issued insulin one to three hours after every meal. Doc. 1 at 3.
Atanacio-Reyes' complaint contradicts itself as to how long he did not receive any diabetic treatment. He first states that “from 01/14/20 to 06/25/20 Plaintiff did not receive any kind of diabetic treatment.” Doc. 1 at 3. However, in the next paragraph, he alleges that “[f]rom March of 2020 to present date, all the above Defendants herein . . . refused to give Plaintiff his diabetic treatment at the right time[.]” Doc. 1 at 3 (emphasis added). It is thus unclear whether Atanacio-Reyes alleges that from March 2020 until June 25, 2020, he received no treatment at all or that he received treatment that was untimely.
This resumption may have been in March or in June of 2020, as the inconsistency described in the preceding footnote similarly creates confusion about the precise dates that Atanacio-Reyes claims he was receiving treatment at an incorrect time.
This delay in treatment, Atanacio-Reyes alleges, endangered his life. In addition to this risk, however, Atanacio-Reyes also lists injuries he has experienced, ostensibly from the above-described treatment being, at different times, withheld or delayed. Atanacio-Reyes avers that he has experienced loss of vision, painful sores on his legs and “entire body,” and “los[s] of use of [his] male appendage.” Doc. 1 at 4.
Atanacio-Reyes includes in his complaint a section titled “injury” immediately filing his statement of claim and legal claims. The court presumes in this recitation of facts that these injuries were the result of his diabetic treatment being refused or delayed.
Atanacio-Reyes therefore claims that Ayers and the Commonwealth Defendants (collectively “the defendants”) “violated Plaintiff's Eight[h] Amendment - Due Process” rights. Id. We interpret this as an attempt to bring a claim under 42 U.S.C. § 1983, alleging that, as state actors, the defendants deprived him of his rights as defined in the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. As relief, Atanacio-Reyes requests compensatory and punitive damages in the amount of $3,000,000 against each defendant.
III. Pleading and Motion-to-Dismiss Standards.
In accordance with Fed.R.Civ.P. 12(b)(6), the court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” When reviewing a motion to dismiss under Rule 12(b)(6), “[w]e must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether [the] 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 making that determination, we “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.
“A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a).” I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist., 842 F.Supp.2d 762, 769-70 (M.D. Pa. 2012). “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). The statement required by Rule 8(a)(2) must give the defendant fair notice of the nature of the plaintiff's claim and of the grounds upon which the claim rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required, but more is required than “labels,” “conclusions,” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “In other words, a complaint must do more than allege the plaintiff's entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). “A complaint has to ‘show' such an entitlement with its facts.” Id.
In considering whether a complaint fails to state a claim upon which relief can be granted, the court “‘must accept all facts alleged in the complaint as true and construe the complaint in the light most favorable to the nonmoving party.'” Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir. 2018) (quoting Flora v. Cty. Of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015)). But 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). A court also 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).
Following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. 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.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” 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.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote and citations omitted) (quoting Iqbal, 556 U.S. at 675, 679).
A complaint filed by a pro se litigant is to be liberally construed and “‘however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
IV. Discussion.
Ayers and the Commonwealth Defendants both argue that the court should dismiss Atanacio-Reyes' Eighth Amendment claim because it lacks allegations of specific involvement. The Commonwealth Defendants further argue that the complaint is comprised solely of legal conclusions that need not be considered true by the court. Doc. 23 at 7. As to Atanacio-Reyes' Fourteenth Amendment claim, the Commonwealth Defendants argue that it must be dismissed as the Eighth Amendment gives grounds for recovery. Id. at 9-10. The Commonwealth Defendants additionally read a state law negligence claim into the complaint and then argue for its dismissal based on Atanacio-Reyes' failure to adhere to the certificate of merit requirements for such a claim. Id. at 10-11.
In their Motion to Dismiss, the Commonwealth Defendants describe the complaint as consisting of “a mere conclusory statement that the SCI Benner Township's medical department knowingly denied Plaintiff any medical treatment and thereby violated his Eighth Amendment rights.” Doc. 23 at 7. On the contrary, though Atanacio-Reyes does not plead sufficient facts, as discussed below, his complaint does contain factual allegations which this court is required to, and has, accepted as true. Such facts are outlined above. See supra Section II.
In the alternative, both Motions to Dismiss also request a more definite statement of the allegations against them. Ayers also asks the court to strike the dollar amounts in the complaint if the complaint is not dismissed. Id. at 10-11.
As we recommend dismissal, we do not address this request in the alternative. However, this court would note for all parties that, pursuant to Local Rule 8.1 “[t]he 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 relief but shall not claim any specific sum where unliquidated damages are involved.” (emphasis added).
A. Eighth Amendment Deliberate Indifference Claim.
In the complaint, Atanacio-Reyes explicitly states that his claim is based on violations of the Eighth Amendment due to the defendants' alleged deliberate indifference to Atanacio-Reyes' health during his incarceration. Doc. 1 at 1.Defendant Ayers and the Commonwealth Defendants both respond to this claim by arguing that the complaint lacks sufficient allegations of personal involvement in any violation of Atanacio-Reyes' constitutional rights.
The court notes that the Eighth Amendment is applicable to the States through the Fourteenth Amendment. Estelle, 429 U.S. at 101.
“An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so; those needs will not be met.” Estelle, 429 U.S. at 103. In order for a plaintiff to allege a viable Eighth Amendment medical claim, he must allege facts from which it can reasonably be inferred that the defendant acted with deliberate indifference to his serious medical needs. Id. at 104; see also Groman v. Township of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995) (“Failure to provide medical care to a person in custody can rise to the level of a constitutional violation under § 1983 only if that failure rises to the level of deliberate indifference to that person's serious medical needs.”). This is a two-part inquiry: “a plaintiff must make (1) a subjective showing that ‘the defendants were deliberately indifferent to [his or her] medical needs' and (2) an objective showing that ‘those needs were serious.'” Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)).
We do not engage in the second part of this inquiry as we conclude that the complaint does not allege that the defendants were deliberately indifferent to Atanacio-Reyes' medical needs. However, we note for the plaintiff the standard for serious medical needs. A medical need is serious if it “has been diagnosed by a physician as requiring treatment” or if it “is so obvious that a lay person would easily recognize the necessity for a doctor's attention.” Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J. 1979), aff'd, 649 F.2d 860 (3d Cir. 1981) (table)). Additionally, “if ‘unnecessary and wanton infliction of pain' results as a consequence of denial or delay in the provision of adequate medical care, the medical need is of the serious nature contemplated by the [E]ighth [A]mendment.” Id. (quoting Estelle, 429 U.S. at 103). Further, “where denial or delay causes an inmate to suffer a life-long handicap or permanent loss, the medical need is considered serious.” Id.
Deliberate indifference is a subjective standard. Farmer v. Brennan, 511 U.S. 825, 840 (1994). “To act with deliberate indifference to serious medical needs is to recklessly disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009). To act with deliberate indifference, the prison official must have known of the substantial risk of serious harm and must have disregarded that risk by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 837. “[T]he official must both be aware of facts from which the inference could be drawn that substantial risk of serious harm exists, and he must also draw the inference.” Id.
Liability in a 42 U.S.C. § 1983 action is personal in nature, and to be liable, a defendant must have been personally involved in the wrongful conduct. See Jutrowski v. Twp. Of Riverdale, 904 F.3d 280, 290 (3d Cir. 2018). In other words, “each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Iqbal, 556 U.S. at 677. “A plaintiff makes sufficient allegations of a defendant's personal involvement by describing the defendant's participation in or actual knowledge of and acquiescence in the wrongful conduct.” Chavarriaga v. New Jersey Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015). “Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity. Compare Boykins v. Ambridge Area School District, 621 F.2d 75, 80 (3d Cir. 1980) (civil rights complaint adequate where it states time, place, persons responsible)[.]” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
Further, a nonmedical prison official is not deliberately indifferent simply because he or she failed to respond to a prisoner's medical complaints when the prisoner was already being treated by a prison doctor. Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993). “Absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a nonmedical prison official . . . will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). “[T]he same division of labor concerns that underlie that rule apply when a nurse knows that a prisoner is under a physician's care and has no reason to believe that the doctor is mistreating the prisoner.” Pearson, 850 F.3d at 540 n.4. “Given that it is the physician with the ultimate authority to diagnose and prescribe treatment for the prisoner, a nurse who knows that the prisoner is under a physician's care is certainly ‘justified in believing that the prisoner is in capable hands,' id., so long as the nurse has no discernable basis to question the physician's medical judgment.” Id. (quoting Spruill, 372 F.3d at 236).
Atanacio-Reyes identifies each defendant in his complaint by name and describes each as “employed by the Pennsylvania Department of Corrections as a Nurse at SCI Benner Township.” Doc. 1 at 2. Aside from listing each defendant as a party, Atanacio-Reyes never singles out any nurse by name in his complaint. Instead, he makes broad accusations about the entire medical department, and all the defendants as a group. Id. at 3. For example, he alleges that: (1) “SCI Benner Township's medical department refused Plaintiff diabetic treatment, knowing that Plaintiff is, and was, a chronic diabetic[;]” (2) “[A]ll the above Defendants herein, named in this case, refused to give Plaintiff his diabetic treatment at the right time[;]” and (3) “A diabetic person is supposed to get his insulin 20 to 30 minutes before every meal . . . [t]he above defendants herein, named in this case, refused to do that[.]” Id. Nowhere does Atanacio-Reyes describe how each defendant was involved, never alleging that they each had actual individual knowledge of his condition nor his allegedly insufficient treatment. Further, the complaint does not allege any specific actions taken by any defendant, much less actions sufficient to amount to participation in wrongful conduct.
Atanacio-Reyes fails to allege any facts that can provide a basis for the reasonable inference that any of the defendants acted with deliberate indifference to his serious medical needs. The complaint alleges no facts that indicate that any of the defendants acted or failed to act in any way relating to Atanacio-Reyes' diabetic treatment. Further, the complaint alleges no facts that indicate that the defendants had the requisite knowledge of either Atanacio-Reyes' condition or his allegedly inadequate treatment. Atanacio-Reyes has thus failed to allege a viable Eighth Amendment claim.
B. Due Process Claim.
The Commonwealth Defendants also argue for the dismissal of Atanacio-Reyes' Fourteenth Amendment Due Process Claim. Citing Albright v. Oliver, 510 U.S. 266 (1994), the Commonwealth Defendants argue that such a claim should be dismissed because the Eighth Amendment protects inmates from deliberate indifference to medical needs. We agree.
“Where a particular Amendment ‘provides an explicit textual source of constitutional protection' against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.'” Albright, 510 U.S. at 273 (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). The Third Circuit has repeatedly applied this “more-specific-provision rule” and found that when allegations “fit squarely within the Eighth Amendment's prohibition on cruel and unusual punishment[,]” a plaintiff's substantive due process claim is foreclosed. Betts v. New Castle Youth Development Center, 621 F.3d 249, 261 (3d Cir. 2010); see Turner v. Wetzel, No. 21-2879, 2022 WL 3572693, at n. 7 (3d Cir. Aug. 1, 2022) (per curiam) (“To the extent that Turner asserts a Fourteenth Amendment substantive due process claim, we agree that such claim is duplicative of Turner's Eighth Amendment claim.”); see Washington v. Gilmore, No. 21-2876, 2022 WL 1073873, at *3 (3d Cir. April 11, 2022) (per curiam) (“Finally, as to Washington's Fourteenth Amendment claim, we agree with the District Court that it is duplicative of his Eighth Amendment claim.”); see Parkell v. Markell, 622 Fed.Appx. 136, 142 (3d Cir. 2015) (“As for Parkell's allegations concerning prison conditions, his injury and his medical treatment, they are properly analyzed under the specific constitutional protections for convicted prisoners.”).
Atanacio-Reyes' complaint explicitly alleges deliberate indifference to his medical needs while incarcerated resulting in injury and risk to his life. It is, therefore, “properly analyzed under the specific constitutional protections for convicted prisoners.” Parkell v. Markell, 622 Fed.Appx. 136, 142 (3d Cir. 2015).
For the foregoing reasons, to the extent that Atanacio-Reyes is asserting a Due Process Claim, we recommend such claim be dismissed.
C. Supplemental State Law Medical Malpractice Claim.
The Commonwealth Defendants state in their brief that “The pro se Complaint can be liberally construed as to include. . . a supplemental state law medical malpractice claim[.]” Doc. 23 at 4. Atanacio-Reyes does not use the term malpractice or negligence, or refer to any state law. Rather, he states in multiple places in his complaint that his complaint arises out of a violation of his Constitutional rights.
For example, the preliminary statement says in its entirety: “This is a Civil Rights action filed by Carlos Atancio-Reyes pro se for monetary damages relief under 42 U.S.C. section 1983, alleging deliberate indifference to Plaintiff's health in violation of the Eighth Amendment - Due process - of the United States Constitution.” Doc. 1 at 1. Atanacio-Reyes identifies his legal claims as follows: “The Defendants have violated Plaintiff's Eight[h] Amendment - Due Process -and deliberate indifference of the United States Constitution.” Id. at 4. Finally, Atanacio-Reyes sets forth his “claims for relief”, stating: “All the above Defendants herein, named in this case, were deliberately indifferent towards Plaintiff's health in violation of the Eight[h] Amendment to the United States Constitution, where these Defendants had specific and direct knowledge of a substantial risk to severe physical injury towards Plaintiff, and despite such knowledge these defendants failed to take any reasonable measures whatsoever to abate such risk.” Id. In none of these sections, nor any other place in the complaint, does Atanacio-Reyes identify any legal claim based in state law.
The Commonwealth Defendants correctly state the requirement, outlined in 231 Pa. Code § 1042.3, that medical malpractice pro se plaintiffs must file a signed certificate of merit representing that the party has consulted an “appropriate licensed professional” and such professional finds a “reasonable probability” of negligence. Further, the Commonwealth Defendants are correct that no certificate of merit has been filed in this case, nor has an extension to file such a certificate of merit been requested.
Nevertheless, we find that the complaint does not reflect an intent to bring a supplemental state law medical malpractice claim, and we will not further address the Commonwealth Defendants' argument for its dismissal on this basis.
V. Amendment.
“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). In a civil rights action, the court “must provide the plaintiff with this opportunity even if the plaintiff does not seek leave to amend.” Id.
“Under Rule 15(a), futility of amendment is a sufficient basis to deny leave to amend.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir. 2010). “Futility ‘means that the complaint, as amended, would fail to state a claim upon which relief could be granted.'” Id. (quoting In re Merck & Co. Sec., Derivative, & ERISA Litig., 493 F.3d 393, 400 (3d. Cir. 2007)). Thus, in determining whether an amendment would be futile, we apply the same standard as we apply in determining whether a complaint fails to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). Id. “In other words, ‘[t]he District Court determines futility by taking all pleaded allegations as true and viewing them in a light most favorable to the plaintiff.'” Id. (quoting Winer Family Trust v. Queen, 503 F.3d 319, 330-31 (3d Cir. 2007)).
Ayers contends that amendment would be futile because the complaint describes only one allegation that can never give rise to deliberate indifference: a “disagreement as to the timing of treatment.” Doc. 20 at 9. This argument is centered around Ayers's interpretation of the complaint as asserting only one allegation of wrongful treatment rather than an allegation of a complete denial of treatment for some period and untimely treatment for some other period. Ayers interprets the inconsistency in dates in the complaint as simply “clarifying” Atanacio-Reyes' allegations that he was completely denied treatment. Doc. 20 at 2.
This interpretation disregards the plain language of the complaint. Atanacio-Reyes avers that from the date he was transferred from SCI Fayette to SCI Benner Township, January 14, 2020, he received no diabetic treatment of “any kind.” Doc. 1 at 3. The next allegation separately alleges that from a later date he did not receive diabetic treatment “at the right time.” Id. Atanacio-Reyes claims that he was refused all diabetic treatment beginning on January 14, 2020. Id. This refusal lasts either until June 25, 2020, as he states in his complaint, or until March of 2020 when he alleges that he began to receive treatment at the wrong time. Id. In either case, Atanacio-Reyes is alleging that he was wholly denied diabetic treatment of any kind for some period of time. Therefore, it cannot fairly be said that Atanacio-Reyes' “claim amounts to a mere disagreement as to the timing of insulin administration.” Doc. 20 at 9. Because it would not be futile, we thus recommend that the court grant Atanacio-Reyes leave to amend.
V. Recommendation.
For the foregoing reasons, we recommend that the court grant the defendants' motions (doc. 19, 22) to dismiss as the complaint does not allege that any of the defendants were personally involved in depriving Atanacio-Reyes of his constitutional rights. This court further recommends that the court grant Atanacio-Reyes leave to amend his complaint.
The Parties are 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 19 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.