Opinion
Civil Action 1:22-CV-01401
07-07-2023
EVAN BROWN, Plaintiff, v. ADRIENNE MONROY, et al., Defendants.
RAMBO, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK, Chief United States Magistrate Judge
Before the Court is a motion to dismiss filed by Defendants Jordan Thomas and Daniel Tingle, both officers employed by Lower Swatara Township (collectively, “Lower Swatara Defendants”). (Doc. 10). In addition, before the court is a motion to stay filed by pro se prisoner-Plaintiff Evan Brown (“Brown”). (Doc. 13). Brown initiated the above-captioned civil rights action pursuant to 42 U.S.C. § 1983, by filing the complaint and motion to proceed in forma pauperis on September 8, 2022, against Defendant Officers of the Steelton Police Department Adrienne Monroy, Michael Schmidt, Arthur Etnoyer, Jr. (collectively, “Steelton Defendants”), and Lower Swatara Defendants. (Doc. 1). In the complaint, Brown alleges that his arrest on multiple charges, some of which were committed in the presence of the arresting officers, lacked probable cause and, as such, violated his Fourth Amendment rights. (Doc. 1). For the reasons stated herein, it is recommended that Defendants' motion to dismiss be GRANTED and Brown's motion to stay be DENIED.
I. Background and Procedural History
On January 5, 2022, Lower Swatara Police Officer Thomas arrested Brown and charged him with the following: two counts of Endangering Welfare of Children -parent/guardian/other commits offense, 18 § 4304 §§ A1; Institutional Vandalism Educational Facility, 18 § 3307 §§ A3; DUI: Gen Imp/Inc of Driving Safely - 1st Offense, 75 § 3802 §§ A1*; and Recklessly Endangering Another Person, 18 § 2705. (Doc. 14-1, at 1-6); see Commonwealth v. Brown, No. MJ-12201-CR-0000022-2022; Commonwealth v. Brown, No. CP-22-CR-0000356-2022. On March 13, 2023, Brown was convicted of all five charges. Commonwealth v. Brown, No. CP-22-CR-0000356-2022 (C.C.P. Dauphin Cty.). Brown is now awaiting sentencing. Attorney Shawnta G. Albro represents Brown in his state criminal case. (Doc. 14-3, at 1-9); see Commonwealth v. Brown, No. CP-22-CR-0000356-2022.
The Court takes judicial notice of the state court dockets related to Brown's criminal case at MJ-12201-CR-0000022-2022 (Magisterial District Judge docket) and CP-22-CR-0000356-2022 (Court of Common Pleas for Dauphin County docket), which are available to the public online at https://ujsportal.pacourts.us/CaseSearch. (last visited June 9, 2023).
Brown commenced this action by filing a complaint on September 8, 2022, while he was a pretrial detainee housed at the Dauphin County Prison. (Doc. 1). Brown alleges that on January 5, 2022, at around 6:20 pm, Officer Thomas of the Lower Swatara Police Department requested Steelton Police to detain Brown to investigate possible charges associated with domestic violence. (Doc. 1, at 3). Brown avers that Officer Monroy and Schmidt located Brown asleep sitting in the passenger seat of his vehicle, asked Brown to exit the vehicle, and asked Brown to turn around while handcuffs were placed upon him, effectuating “an arrest.” (Doc. 1, at 3). Brown claims he was “wrestled into handcuffs,” “violently twisted [Brown]'s arms behind his back to place him in handcuffs,” and placed him in the back of a Lower Swatara police car. (Doc. 1, at 3-4).
Brown asserts the following causes of action: false arrest/false imprisonment against all Defendants (Count I); excessive force against Steelton Defendants (Count II); and failure to intervene against Lower Swatara Defendants (Count III). (Doc. 1, at 3-4). As relief, Brown seeks compensatory and punitive damages. (Doc. 1, at 5).
Lower Swatara Defendants filed the motion to dismiss on November 11, 2022, and a brief in support on November 22, 2022. (Doc. 10; Doc. 11). On November 30, 2022, Brown filed a motion for extension of time to file a brief in opposition. (Doc. 12). On December 2, 2022, Brown filed a motion to stay. (Doc. 13). On December 14, 2022, Lower Swatara Defendants filed brief in opposition to the motion to stay, as well as a certificate of nonconcurrence. (Doc. 14). Brown filed a brief in support of his motion to stay on December 19, 2022, and a reply brief on December 30, 2022. (Doc. 17; Doc. 18).
For the following reasons, the undersigned recommends that the Court grant Defendants' motion to dismiss and that Brown's complaint be dismissed. Accordingly, it is recommended that the Court denied Brown's motion for extension of time to file a brief in opposition as moot. (Doc. 12).
Upon review of publicly available dockets, Brown was convicted of the five abovementioned charges on March 13, 2023, and is now awaiting sentencing. Commonwealth v. Brown, No. CP-22-CR-0000356-2022 (C.C.P. Dauphin Cty.). As of the date of this recommendation, Brown is confined at the Dauphin County Prison. Commonwealth v. Brown, No. CP-22-CR-0000356-2022 (C.C.P. Dauphin Cty.).
The motion to dismiss and motion to stay have been fully briefed and are now ripe for disposition. (Doc. 10; Doc. 11; Doc. 12; Doc. 13; Doc. 14; Doc. 17; Doc. 18).
II. Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions which are not entitled to the assumption of truth, and finally determine whether the complaint's factual allegations, taken as true, could plausibly satisfy the elements of the legal claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule 12(b)(6) motion, the court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
After recognizing the required elements which make up the legal claim, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The 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.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Thus, courts “need not credit a complaint's ‘bald assertions' or ‘legal conclusions' ....” 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)). Nor need a court assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
A court must then determine whether the well-pleaded factual allegations give rise to a plausible claim for relief. “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.” 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). 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. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face.” Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). The plausibility determination is context-specific and does not impose a heightened pleading requirement. Schuchardt, 839 F.3d at 347.
Additionally, Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Thus, a well-pleaded complaint must recite factual allegations that are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of action. There is no requirement that the pleading be specific or probable. Schuchardt, 839 F.3d at 347 (citing Phillips v. Cty. of Allegheny, 515 F.3d 224, at 233-234 (3d Cir. 2008). Rule 8(a) requires a “showing that ‘the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Fed.R.Civ.P. 8(a)(2)); see also Phillips, 515 F.3d at 233 (citing Twombly, 550 U.S. at 545).
With the aforementioned standards in mind, a document filed pro se is “to be liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Further, the Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
Section 1983 is the vehicle by which private citizens may seek redress for violations of federal constitutional rights committed by state officials. See 42 U.S.C. § 1983. The statute states, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983.
“Section 1983 is not a source of substantive rights,” but is merely a means through which “to vindicate violations of federal law committed by state actors.” See Pappas v. City of Lebanon, 331 F.Supp.2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 28485 (2002)). To state a cause of action under Section 1983, a plaintiff must allege that: (1) the conduct complained of was committed by persons acting under color of state law; and (2) the conduct violated a right, privilege, or immunity secured by the Constitution or laws of the United States. See Harvey v. Plains Twp. Police Dep't, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)).
III. Discussion
A. Motion to Dismiss
In the complaint, Brown alleges Section 1983 claims of false arrest, false imprisonment, and failure to intervene against Lower swatara Defendants. (Doc. 1, at 4). Brown generally alleges that his unlawful arrest on January 5, 2022, was made without probable cause and that Lower swatara Defendants failed to prevent his unlawful arrest. (Doc. 1, at 3).
Lower swatara Defendants move to dismiss the complaint for the following reasons: (1) Brown's claims of false arrest and false imprisonment would impugn the integrity of the pending criminal charges and must therefore be dismissed pursuant to the abstention doctrine and Heck v. Humphrey; and (2) Brown has failed to state facts sufficient to establish a failure to intervene claim upon which relief can be granted. (Doc. 10, at 5-7; Doc. 11, at 5-10). In response, Brown filed the motion to stay, explaining that he presently has a petition for review in the superior Court of Pennsylvania, Commonwealth v. Brown, No. 39-MDM-2022, in which he is challenging whether Brown was arrested with probable cause. (Doc. 13). Brown avers that a stay of the instant litigation is warranted because he is likely to prevail on the merits and the complaint was filed before the expiration of the statute of limitations. (Doc. 13, at 8). In opposition, Lower swatara Defendants argue that the legal insufficiency of Brown's underlying civil action is apparent on the face of the complaint and the official documents record upon which the Court may rely. (Doc. 14, at 1).
To recover damages for an alleged unconstitutional conviction or imprisonment under section 1983, “a plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In Heck, the petitioner filed a Section 1983 suit while the appeal from his conviction was still pending. Heck, 512 U.S. at 478-79. The Supreme Court upheld the dismissal of the Section 1983 action, holding that “[o]ne element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused.” Heck, 512 U.S. at 484. The purpose of this requirement was to avoid
parallel litigation over the issues of probable cause and guilt . . . and it precludes the possibility of the claimant . . . succeeding in the tort action after having been convicted in the underlying criminal prosecution, in contravention of a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction.Heck, 512 U.S. at 484 (citation omitted).
Accordingly, a court must dismiss a Section 1983 suit for damages “unless there was no conviction or sentence or ‘the plaintiff can demonstrate that [a] conviction or sentence has already been invalidated.'” Curry v. Yachera, 835 F.3d 373, 378 (3d Cir. 2016) (quoting Heck, 512 U.S. at 487).
Brown has not set forth any facts to show that his conviction or sentence has been invalidated or otherwise reversed. Moreover, upon review of the docket in his state court proceedings, the undersigned notes that his conviction has not overturned. Commonwealth v. Brown, No. CP-22-CR-0000356-2022 (C.C.P. Dauphin Cty.). On March 13, 2023, Brown was convicted of the charges of endangering the welfare of children, institutional vandalism of an educational facility, a DUI, and recklessly endangering another person, and is now awaiting sentencing. Commonwealth v. Brown, No. CP-22-CR-0000356-2022 (C.C.P. Dauphin Cty.). This conviction arising from the January 5, 2022, arrest has not been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by the issuance of a writ of habeas corpus. Accordingly, to the extent Brown's complaint can be read to seek damages for his imprisonment or for alleged constitutional violations that occurred in the course of a criminal prosecution, it is clear that the prosecution did not terminate in his favor. Thus, Brown cannot maintain Section 1983 claims at this time. See Cook v. City of Phila., 179 Fed.Appx. 855, 859 (3d Cir. 2006) (per curiam) (holding failure to intervene claims were barred by Heck). Accordingly, these claims should be dismissed without prejudice subject to Brown refiling as a new case if a challenge to his conviction is later resolved in his favor.
However, Heck does not bar all Section 1983 claims. Heck, 512 U.S. at 487 n.7 (“Because of doctrines like independent source and inevitable discovery, and especially harmless error, such as a § 1983 action [i.e., a suit for damages attributable to an allegedly unreasonable search], even if successful, would not necessarily imply that the plaintiff's conviction was unlawful.”) (citations omitted). Indeed, the Third Circuit Court of Appeals has held that “[b]ecause a conviction and sentence may be upheld even in the absence of probable cause for the initial stop and arrest, . . . claims for false arrest and false imprisonment are not the type of claims contemplated by the Court in Heck which necessarily implicate the validity of a conviction or sentence.” Cruz v. City of Pottsville, No. 3:21-CV-00283, 2022 WL 2733207, at *6 (M.D. Pa. May 19, 2022), report and recommendation adopted, No. 3:21-CV-283, 2022 WL 2132844 (M.D. Pa. June 14, 2022). That is because “[i]t is at least conceivable that arresting officers could lack probable cause to arrest and detain even if the evidence later supports conviction beyond a reasonable doubt. This could occur if the arresting officers were not privy to all the information that later supported conviction.” Burke v. Twp. of Cheltenham, 742 F.Supp.2d 660, 669 (E.D. Pa. 2010). “Heck bars only claims which ‘seek [ ] to recover damages for an unconstitutional conviction, imprisonment, or other harm caused by actions whose unlawfulness would render the conviction or sentence unlawful.'” Strunk v. E. Coventry Twp. Police Dep't, 674 Fed.Appx. 221, 223-24 (3d Cir. 2016) (quoting Torres v. McLaughlin, 163 F.3d 169, 173 (3d Cir. 1998)). Heck “requires District Courts to determine whether each claim-if successful-would imply the invalidity of the conviction or sentence.” Strunk, 674 Fed.Appx. at 224 (quoting Gibson v. Superintendent, 411 F.3d 427, 447-49 (3d Cir. 2005) (holding that a determination whether Heck applies to a Fourth Amendment claim requires a case-by-case fact-based inquiry)).
In the instant case, Heck does not necessarily bar Brown's claims challenging his arrest on January 5, 2022, although Heck prevents Brown from recovering damages for any injury related to his conviction and imprisonment stemming from the January 5, 2022, events. See Heck, 512 U.S. at 487 n.7 (“[T]he § 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, which, we hold today, does not encompass the ‘injury' of being convicted and imprisoned (until his conviction has been overturned).” (citations omitted)); Montgomery v. De Simone, 159 F.3d 120, 126 n.5 (3d Cir. 1998) (observing that “[b]ecause a conviction and sentence may be upheld even in the absence of probable cause for the initial stop and arrest, . . . [plaintiff's] claims for false arrest and false imprisonment are not the type of claims contemplated by the Court in Heck which necessarily implicate the validity of a conviction or sentence”); see also Garrison v. Porch, 376 Fed.Appx. 274, 278 (3d Cir. 2010) (joining the majority of the courts of appeals in “rejecting [the] argument that [a plaintiff's] conviction for simple assault automatically precludes him from recovering on his § 1983 claim” for excessive force). Nevertheless, Brown's Fourth Amendment claims related to the events of January 5, 2022, fail because they are not adequately pled.
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. To state a claim for false arrest under the Fourth Amendment, a plaintiff must allege facts establishing that he was arrested without probable cause. See Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995). “[P]robable cause to arrest exists when the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested.” Orsatti, 71 F.3d at 483. The Fourth Amendment also prohibits a law enforcement officer from using “excessive force in the course of making an arrest, investigatory stop, or other ‘seizure.'” Graham v. Connor, 490 U.S. 386, 388 (1989). “‘Seizure' alone is not enough for § 1983 liability; the seizure” - including the force used to effect the seizure - “must be ‘unreasonable.'” Brower v. Inyo Cty., 489 U.S. 593, 599 (1989). To determine whether an officer's use of force was unreasonable, “a court must consider[ ] all of the relevant facts and circumstances leading up to the time that the officers allegedly used excessive force.” Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004).
Here, Brown's complaint does not allege sufficient facts to state a plausible claim that he was searched or seized without probable cause. Brown broadly alleges that “Officer Thomas did not have probable cause to validate Officer Monroy's arrest,” where Officer Thomas did not see Brown driving and was not present at the time Brown was arrested to observe any recent physical injury to the victim, Brown's girlfriend. (Doc. 1, at 3). Brown's claims directly undermine his state conviction for endangering the welfare of children, institutional vandalism of an educational facility, a DUI, and recklessly endangering another person, in which the state court found Brown guilty of all five charges. Further, the undersigned finds that the complaint does not identify any independent or exculpatory evidence of the victim's credibly such that probable cause would not exist. See Wilson v. Russo, 212 F.3d 781, 790 (3d Cir. 2000) (“[While] a positive identification by a victim witness, without more, would usually be sufficient to establish probable cause, . . . [i]ndependent exculpatory evidence or substantial evidence of the witness's own unreliability that is known by the arresting officers could outweigh the identification such that probable cause would not exist.”). Thus, the undersigned finds that Defendants had sufficient probable cause to believe that the underlying crimes occurred. Defendants were not required to conduct a full-scale investigation before making an arrest. “Statements made to a police officer from a source whom he finds credible can be sufficient to provide probable cause.” Nwani v. Greene, No. CV 17-3017, 2018 WL 2426145, at *6 (E.D. Pa. May 30, 2018). The officer is not required to conduct an extensive investigation and identify other witnesses. See Merkle, 211 F.3d at 790 n.8 (finding that a detective “was not required to undertake an exhaustive investigation in order to validate the probable cause that, in his mind, already existed.”). Since Brown has failed to show his arrest was made without probable cause, he cannot proceed on his false arrest and false imprisonment claims. See Orsatti, 71 F.3d at 482.
Similarly, Brown's claims of failure to intervene cannot proceed. “Courts have held that a police officer has a duty to take reasonable steps to protect a victim from another officer's use of excessive force.” Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). The “officer is only liable if there is a realistic and reasonable opportunity to intervene.” Smith, 293 F.3d at 651. In general, officers should take reasonable steps to protect a victim from another officer's excessive force. Adams v. Officer Eric Selhorst, 449 Fed.Appx. 198 (3d Cir. 2011) (non-precedential); see Berrios v. City of Philadelphia, No. 12-7245, 96 F.Supp.3d 523, 535 (E.D. Pa. 2015). Thus, to hold Lower Swatara Defendants liable as bystanders, Brown must allege that they: (1) had a duty to intervene; (2) had an opportunity to intervene, and (3) failed to intervene. Hazelton v. Savage, No. 3:19-CV-2027, 2020 WL 6068153, at *6 (M.D. Pa. Aug. 3, 2020), report and recommendation adopted, No. CV 3:19-2027, 2020 WL 6059748 (M.D. Pa. Oct. 14, 2020).
Here, Brown's failure-to-intervene claim fails to state a claim upon which relief may be granted because the complaint is devoid of facts to establish that Lower Swatara Defendants were present at the time of his arrest or had the opportunity to intervene in the subject arrest. Thus, the undersigned cannot discern whether Lower Swatara Defendants had an opportunity to intervene. See Hazelton, 2020 WL 6068153, at *6. Furthermore, the claim necessarily requires Brown to prove that Defendants lacked probable cause to arrest him. See Nifas v. Coleman, 528 Fed.Appx. 132, 136 (3d Cir. 2013) (citing Smith, 293 F.3d at 650) (explaining that a failure to intervene claim requires finding that the underlying violation occurred). As explained above, the undersigned finds that probable cause existed to effectuate Brown's arrest.
Accordingly, it is recommended that Lower Swatara Defendants' motion to dismiss be granted, and Brown's claims against Lower Swatara Defendants for false arrest, false imprisonment, and failure to intervene be dismissed without prejudice and with leave for Brown to reassert the claims should his conviction ultimately be overturned or otherwise invalidated.
IV. Recommendation
Based on the foregoing, it is respectfully recommended that:
1. Lower Swatara Defendants' motion to dismiss (Doc. 10) be GRANTED;
2. Brown's claims against Lower Swatara Defendants be DISMISSED without prejudice; and
3. Brown's motion for an extension of time to file an opposition brief (Doc. 12) and motion to stay (Doc. 12) be DISMISSED as MOOT.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated July 7, 2023. Any party may obtain a review of the Report and Recommendation pursuant to 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.