Opinion
1:19-CV-01941
02-28-2022
DARRYL C. BROWN, Plaintiff, v. PA DEPARTMENT OF CORRECTIONS, et al., Defendants.
Mariani, Judge.
REPORT AND RECOMMENDATION
Susan E. Schwab, United States Magistrate Judge.
I. Introduction.
Plaintiff Darryl C. Brown (“Brown”) alleges that when he was incarcerated at State Correctional Institution Coal Township, Pennsylvania (“SCI Coal Twp.”), he received medical care that was grievously lacking. Brown has amended his complaint three times, and two motions to dismiss are currently pending. One motion to dismiss is from a group of defendants associated with the Commonwealth of Pennsylvania's Department of Corrections (“the DOC defendants”), and the other from a group of defendants associated with private healthcare provider Correct Care Solutions (“the Medical defendants”). We recommend that both motions to dismiss be granted and denied in part.
II. Background and Procedural History.
Brown began this action by filing a complaint on November 11, 2019. Doc. 1. After some expedited discovery, Brown amended his complaint on April 3, 2020. Doc. 27. On January 14, 2021, the undersigned issued a Report and Recommendation, recommending that Brown's first amended complaint be dismissed with leave to amend. Doc. 100. Additionally, we recommended that various claims be dismissed with prejudice. Id. On February 8, 2021, Judge Mariani adopted our Report and Recommendation. Doc. 101. Accordingly, Brown was granted 28 days to file a second amended complaint regarding the claims that were dismissed without prejudice. Id. On March 8, 2021, Brown filed a second amended complaint. Doc. 102. On March 26, 2021, we granted Brown leave to file a corrected second amended complaint, doc. 107, which he did on the same day. Doc. 108.
On May 20, 2021 we directed Brown to file a third amended complaint. Doc. 113. On June 21, 2021, Brown filed his third amended complaint. Doc. 114. In his third amended complaint, Brown presents a host of claims; they are largely premised on Brown not receiving appropriate medical care while incarcerated at SCI Coal Twp. Doc. 114. The DOC defendants that have been identified and served are John E. Wetzel (“Wetzel”), Michael Wenerowitz (“Wenerowitz”), Richard Wenhold (“Wenhold”), Paul Noel (“Noel”), and Thomas McGinley (“McGinley”). The Medical defendants that have been identified and served are Correct Care Solutions, LLC. (“CCS”), Dr. Michael Moclock (“Moclock”), Dr. Mary Monsalud (“Monsalud”), Physician Assistant Brian Davis (“Davis”), and Physician Assistant Nicholle Boguslaw (“Boguslaw”). Brown also names several other defendants who have not been served (“the Unserved defendants”). The Unserved defendants are SCI Coal Twp. John Does 1-4 (“SCI Does”), “Sargeant [sic] Shikes (‘Shikes'), ” “Nurse Big Red, ” “Nurse John Doe 5” and or “Nurse Jane Doe 1.” Brown sues Wetzel, Wenerowitz, Noel, Wenhold, McGinley, SCI Does 14, Shikes, Nurse “Big Red”, and Nurse John Doe 5 and or Nurse Jane Doe 1 in their individual capacities. Brown sues CCS, Mocklock, Monsalud, Davis, and Boguslaw in both their individual capacities and official capacities.
Brown sues CCS in its individual capacity and official capacity. The parties do not address whether a medical vendor, like CCS, can be sued in its individual capacity. Therefore, we will not address this issue at this time.
The Medical defendants do not raise any arguments regarding potential Eleventh Amendment immunity for the individual medical defendants sued in their official capacities. Therefore, we will not address the issue at this time.
In Count One, Brown claims that CCS, Moclock, Monsalud, Davis, Boguslaw, Nurse “Big Red, ” John Doe 5 and or Jane Doe 1, and Shikes, violated the Eighth Amendment by refusing to provide adequate medical care and should be held liable pursuant to 42 U.S.C. § 1983. Id. at ¶¶ 31-67. In Count Two, Brown claims that CCS, Moclock, Monsalud, Davis, Boguslaw, Nurses “Big Red, ” Jane Doe 1 and or John Doe 5, and Shikes violated the Eighth Amendment by refusing to provide adequate medical care which resulted in Brown's leg amputation and should be held liable pursuant to 42 U.S.C. § 1983. Id. at ¶¶ 68-105.
In Count Five, Brown claims that CCS violated the Eighth Amendment by acquiescing to the DOC's allegedly unconstitutional policy, thereby creating liability under a theory of corporate liability. Id. at ¶¶ 106-127. In Count Six, Brown claims that “certain of the Defendants” violated the Fourteenth Amendment by violating his “right to be free from conditions of confinement that are excessively harsh and/or punitive.” Id. at ¶¶ 128-151. In Count Seven, Brown asserts that John Does 1-3 and McGinley committed “[a] First Amendment Violation and Fifth or Fourteenth Amendment Due Process Violation” by stealing his “[m]edical and [o]ther records.” Id. at ¶¶ 152-178. In Count Eight, Brown names the same defendants as in Count Seven and claims that the alleged theft of these records constituted retaliation. Id. at ¶¶ 179-183. In Count Ten, Brown brings “Pendant State Tort Claims of Medical Malpractice under the PA MCARE Act” against CCS, Moclock, Nurse “Big Red, ” and John Doe 5 or Jane Doe 1. Id. at ¶¶ 184-209. For relief, Brown requests that judgment be entered against the defendants, compensatory damages, punitive damages, and attorney's fees and costs.
Brown's Counts are not linearly numbered, and so, we will refer to the Counts as Brown has them numbered.
On July 7, 2021, the Medical and DOC defendants filed separate motions to dismiss Brown's third amended complaint. Docs. 117, 118. On July 20, 2021, the Medical defendants filed a brief in support of their motion to dismiss, doc. 121, and on July 23, 2021, the DOC defendants filed a brief in support of their motion to dismiss. Doc. 124. On September 23, 2021, Brown filed his brief in opposition, doc. 139, to the Medical defendants' brief in support. On September 27, 2021, Brown filed his brief in opposition, doc. 142, to the DOC defendants' brief in support. Both motions to dismiss are now ripe for decision. For the reasons discussed below, we recommend that both motions to dismiss be granted and denied in part.
III. Factual Background.
In August 2010, Brown was involved in a motor vehicle accident, and he suffered severe injures to his leg, which required surgery and resulted in impaired mobility. Doc. 114 at ¶ 25. From on or about July 13, 2012 to July 2018, Brown was incarcerated at SCI Coal Twp. Id. at ¶ 24. Per Brown, he has been wheelchair bound from the date of his incarceration at SCI Coal Twp. Id. at ¶ 26. Brown claims to have been diagnosed with and suffering from the following medical conditions: Methicillin-Resistant Staphylococcus (“MRSA”), Hepatitis C (“HCV”), poor recovery from surgical procedures, right leg wounds, impaired mobility, and diabetes or insulin dependent diabetes. Id. at ¶ 27.
According to Brown, all of the aforementioned medical conditions were known to SCI Coal Twp. medical unit, including Nurse “Big Red, ” Nurse Jane Doe and Nurse John Doe 5, and Shikes. Id. at ¶ 28. Per Brown, in mid-September 2017, Brown's right leg wound became infected and apparent to all that it needed medical attention. Id. at ¶¶ 29-30. Brown claims that between September 14, 2017 through November 2017, he requested medical care, but the Medical and DOC defendants provided no care or medication. Id. at ¶ 36. Brown alleges that his leg became so infected that it was noticeably rotting and was odious to all. Id. at ¶ 39. Per Brown, Moclock advised him that he would not receive any care and that he needed to wait until he was released so that he could pay for the care himself. Id. at ¶ 41.
Brown claims that he continually requested help, but that the Medical defendants dismissed his claims. Id. at ¶¶ 43-44. According to Brown, on November 29, 2017, he became very ill as a result of his severe leg infection and he requested to “speak with a white coat;” however, Shikes refused his request. Brown claims that on November 30, 2017, he was taken to Moclock and then admitted to Geisinger Medical Center. Id. at ¶ 51. While at Geisinger, Brown's leg infection became septic and, as a result, his right leg was amputated above the knee. Id. at ¶¶ 54-56. Per Brown, Moclock, Monsalud, David, and Boguslaw all attended to Brown and noticed his severe leg infection. Id. at ¶ 58.
Brown alleges that he was continually told by the medical staff at SCI Coal Twp. that he did not meet their criteria for treatment of his HCV status. Id. at ¶ 59. Brown claims that had his leg been treated between mid-September 2017 to November 30, 2017, his leg “more likely than not would not have been amputated.” Id. at ¶ 60. Brown claims that the DOC defendants were primarily involved with the decision to withhold direct acting antiviral drugs (“DAADs”) from him and other HCV infected inmates. Id. at ¶ 73. Per Brown, despite the Medical defendants' knowledge of Brown's HCV issues, they provided no care for his HCV for the remainder of his time at SCI Coal Twp. through to his release in July 2018. Id. at ¶ 80. Brown claims that this has resulted in injuries to his heart, kidney, and liver. Id. at ¶ 81.
According to Brown, on or about December 13, 2017, he returned from Geisinger Hospital and was taken to the infirmary. Id. at ¶ 130. Brown alleges that his infirmary room was filthy and uncomfortable. Id. Brown claims that he complained of the squalor, but that the medical staff and officers at SCI Coal Twp. ignored his complaints. Id. at ¶ 131. Per Brown, the conditions of the room caused him severe pain and emotional harm. Id. at ¶ 142. Brown further claims that he was forced to lay in his own waste, and that the staff routinely offered him no assistance. Id. at ¶¶ 146-147.
Sometime between December 13, 2017 through January 2018, Brown claims that John Does 1-3 entered his cell while he was away. Id. at ¶¶ 155-156. Brown alleges that they removed two boxes of his items and confiscated his documents. Id. at ¶ 156. Per Brown, he asked why his documents had been confiscated, but did not receive a reason. Id. at ¶ 158. Brown claims these documents were related to the lawsuit he was preparing and that they contained important medical information. Id. at ¶ 161. According to Brown, McGinley is responsible for the confiscation and it was done to thwart any of Brown's legal actions. Id. at ¶¶ 164-166. Brown claims that he filed a grievance regarding his allegedly confiscated documents; however, it was dismissed as frivolous. Id. at ¶ 168. Per Brown, John Doe 4 threatened him with placement into the Restrictive Housing Unit (“RHU”) or that Brown could “disappear.” Id. at ¶ 170.
IV. 42 U.S.C. § 1983.
Brown's claims are brought pursuant to § 1983. To state a viable Section 1983 claim, a plaintiff must plead two essential elements: 1) that the conduct complained of was committed by a person acting under color of state law, and 2) that said conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 580-81 (3d Cir. 2003). Moreover, for a Section 1983 claim to survive a motion to dismiss, the plaintiff must sufficiently allege that the defendant was personally involved in the act or acts that the plaintiff claims violated his rights. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); see also Chavarria v. N.J. Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015).
Individual liability can be imposed under 42 U.S.C. § 1983 only if the state actor played an “affirmative part” in the alleged misconduct and “cannot be predicated solely on the operation of respondeat superior.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode, 845 F.2d at 1207); Sutton v. Rasheed, 323 F.3d 236, 249-50 (3d Cir. 2003). The personal involvement of a defendant in a Section 1983 action may be shown “through allegations of personal direction or of actual knowledge and acquiescence.” Argueta v. U.S. Immigration & Customs Enf't, 643 F.3d 60, 71 (3d Cir. 2011) (quoting Rode, 845 F.2d at 1207). Such allegations, however, must be made with appropriate particularity in that a complaint must allege the particulars of “conduct, time, place, and persons responsible.” Evancho, 423 F.3d at 354; Rode, 845 F.2d at 1207-08. Alleging a mere hypothesis that an individual defendant had personal knowledge or involvement in depriving the plaintiff of his rights is insufficient to establish personal involvement. Rode, 845 F.2d at 1208. Moreover, a defendant “cannot be held responsible for a constitutional violation which he or she neither participated in nor approved.” C.H. ex rel. Z.H. v. Olivia, 226 F.3d 198, 201-02 (3d Cir. 2000). Allegations that a supervisor “had constructive knowledge of a subordinate's unconstitutional conduct simply because of his role as a supervisor” do not suffice. Broadwater v. Fow, 945 F.Supp.2d 574, 588 (M.D. Pa. 2013) (citing C.H. ex rel. Z.H., 226 F.3d at 202).
V. Discussion.
A. Doe Defendants and Statute of Limitations.
Before we begin our discussion of Brown's counts, we note that 90 days have passed since this third amended complaint was filed and the Doe defendants remain unserved. Fed. R. Civ. Proc., Rule 4(m) holds that:
If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.Fed. R. Civ. P. 4(m).
“Courts consider ‘three factors in determining the existence of good cause under Rule 4(m): (1) reasonableness of plaintiff's efforts to serve[;] (2) prejudice to the defendant by lack of timely service[;] and (3) whether plaintiff moved for an enlargement of time to serve.'” Beautyman v. Laurent, 829 Fed. App'x. 581, 583- 584 (3d Cir. 2020) (quoting MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995))).
Here, we recommend that the Doe defendants not be dismissed. It appears as though Brown has made a concerted effort to identify and serve the Doe defendants in this matter, as he contacted the prison's clerk office, conferenced with counsel, and conducted online searches. Doc. 142 at 25. Regarding prejudice to the defendants, neither the Medical nor DOC defendants have demonstrated how the lack of timely service prejudices them. Additionally, considering that no discovery deadlines are yet established in this case, we find that none of the defendants are prejudiced by the lack of timely service on the Doe defendants. See Doe v. Pennsylvania, 1:19-cv-2193, 2022 WL 251921, at *4 (M.D. Pa. Jan. 26. 2022) (“[T]he ... defendants were not prejudiced because no discovery deadlines were yet established in this matter.”). And while Brown failed to move for an enlargement of time to serve the Doe defendants, we find that the other two prongs weigh in his favor. Accordingly, we recommend that the Doe defendants not be dismissed for lack of service.
Regarding the statute of limitations arguments raised by the Medical and DOC defendants, the Medical defendants argue that Brown was aware of his alleged non-treatment for HCV, MRSA, diabetes, and his leg infection as early as July 13, 2012. See doc. 121 at 7-8. They contend that he was required to file an action once the lack of treatment began. Id. Similarly, the DOC defendants argue that Brown was aware of both his HCV condition and the DOC's HCV policy more than two years before filing his complaint. See doc. 124 at 15-16. We find that any potential statute of limitations defects are not obvious from the face of the complaint. See, e.g., Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002) (finding that if the bar is not apparent on the face of the complaint, then a Rule 12(b)(6) dismissal is improper). Furthermore, the parties do not discuss any potential exhaustion of administrative remedies or other equitable tolling possibilities that could potentially negate any statute of limitations issues. See Pearson v. Sec'y Dep't of Corr., 775 F.3d 598, 603 (3d Cir. 2015) (finding that the statute of limitations is tolled while a prisoner exhausts administrative remedies). We, therefore, recommend that none of Brown's claims be dismissed on a statute of limitations basis.
B. Counts One and Two.
In Count One, Brown claims that CCS, Moclock, Monsalud, Davis, Boguslaw, Nurse “Big Red, ” John Doe 5 and or Jane Doe 1, and Shikes, violated the Eighth Amendment by refusing to provide adequate medical care. “The Eighth Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the infliction of ‘cruel and unusual punishments.'” Glossip v. Gross, 576 U.S. 863, 876 (2015). “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 v. Gamble, 429 U.S. 97, 103 (1976). 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)).
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 eighth amendment.” 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 a substantial risk of serious harm exists, and he must also draw the inference.” Id.
The mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, however, is not actionable as a constitutional claim because medical malpractice is not a constitutional violation. See Farmer, 511 U.S. at 835 (holding that “deliberate indifference describes a state of mind more blameworthy than negligence”); Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (“Allegations of medical malpractice are not sufficient to establish a Constitutional violation.”); Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 192 n. 2 (3d Cir. 2002) (claims of medical malpractice, absent evidence of a culpable state of mind, do not constitute deliberate indifference under the Eighth Amendment). Instead, deliberate indifference represents a much higher standard, one that requires “obduracy and wantonness, which has been likened to conduct that includes recklessness or a conscious disregard of a serious risk.” Rouse, 182 F.3d at 197 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).
“Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners.” Durmerv. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993) (citations omitted). And courts will “disavow any attempt to second guess the propriety or adequacy of a particular course of treatment . . . [which] remains a question of sound professional judgment.” Palakovic v. Wetzel, 854 F.3d 209, 228 (3d Cir. 2017) (quoting Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)). “Mere disagreement as to the proper medical treatment does not support an Eighth Amendment claim.” Caldwell v. Luzerne Cnty. Corr. Facility Mgmt. Employees, 732 F.Supp.2d 458, 472 (M.D. Pa. 2010). Thus, “[w]here a prisoner has received some amount of medical treatment, it is difficult to establish deliberate indifference, because prison officials are afforded considerable latitude in the diagnosis and treatment of prisoners.” Palakovic, 854 F.3d at 227. “Nonetheless, there are circumstances in which some care is provided yet it is insufficient to satisfy constitutional requirements.” Id.
The Third Circuit has found deliberate indifference where a prison official: “(1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment.” Rouse, 182 F.3d at 197. The Third Circuit has also held that “[n]eedless suffering resulting from the denial of simple medical care, which does not serve any penological purpose, . . . violates the Eighth Amendment.” Atkinson v. Taylor, 316 F.3d 257, 266 (3d Cir. 2003). “For instance, prison officials may not, with deliberate indifference to the serious medical needs of the inmate, opt for ‘an easier and less efficacious treatment' of the inmate's condition.” Palakovic, 854 F.3d at 228 (quoting West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978)). “Nor may ‘prison authorities deny reasonable requests for medical treatment . . . [when] such denial exposes the inmate to undue suffering or the threat of tangible residual injury.'” Id. (quoting Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987)). Thus, “[a] ‘failure to provide adequate care . . . [that] was deliberate, and motivated by non-medical factors' is actionable under the Eighth Amendment, but ‘inadequate care [that] was a result of an error in medical judgment' is not.” Parkell v. Danberg, 833 F.3d 313, 337 (3d Cir. 2016) (quoting Durmer, 991 F.2d at 69).
“[T]here is a critical distinction ‘between cases where the complaint alleges a complete denial of medical care and those alleging inadequate medical treatment.'” Pearson, 850 F.3d at 535 (quoting United States ex. rel. Walker v. Fayette Cty., 599 F.2d 573, 575 n.2 (3d Cir. 1979)). “Because ‘mere disagreement as to the proper medical treatment' does not ‘support a claim of an eighth amendment violation,' when medical care is provided, we presume that the treatment of a prisoner is proper absent evidence that it violates professional standards of care.” Id. (quoting Monmouth Cty. Corr. Inst., 834 F.2d at 346). And “there are two very distinct subcomponents to the deliberate indifference prong of an adequacy of care claim.” Id. at 536. “The first is the adequacy of the medical care-an objective inquiry where expert testimony could be helpful to the jury.” Id. “The second is the individual defendant's state of mind-a subjective inquiry that can be proven circumstantially without expert testimony.” Id. But a claim that medical care was delayed or denied completely “must be approached differently than an adequacy of care claim.” Id. at 537. “Unlike the deliberate indifference prong of an adequacy of care claim (which involves both an objective and subjective inquiry), the deliberate indifference prong of a delay or denial of medical treatment claim involves only one subjective inquiry-since there is no presumption that the defendant acted properly, it lacks the objective, propriety of medical treatment, prong of an adequacy of care claim.” Id. “All that is needed is for the surrounding circumstances to be sufficient to permit a reasonable jury to find that the delay or denial was motivated by non-medical factors.” Id.
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, 991 F.2d at 69. “Absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official . . . will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.” Spruill, 372 F.3d at 236. “[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).
Here, Brown asserts that his HCV status and his infected leg constituted a serious medical need. He claims that his leg became so infected that it exuded fluids and was noticeably rank by other inmates and corrections officers. Doc. 114 at ¶ 39.
Brown further alleges that the infection in his leg became septic, and he required hospitalization. Id. at ¶¶ 55-56. Ultimately, Brown's leg was amputated to save his life. Id. Clearly, a leg infection that eventually required amputation constitutes a serious medical need. See Scales v. Witherite, No. 3:10-cv-333, 2011 WL 320893, at *2 (M.D. Pa. Jan. 28, 2011) (“Further, [the plaintiff] alleges that his open wound became infected, with a yellowish fluid oozing from the wound, and alleged a risk of infection that could have led to an amputation or death. These allegations are sufficient, at this stage, to establish a serious medical need.”) (quotations omitted); see also Spruill, 372 F.3d at 236 (“The extreme pain and real possibility of permanent injury could qualify Spruill's condition as a serious medical need.”). Here, we find that Brown has satisfied the serious medical need prong, and we now turn our discussion towards the second prong, the defendants' deliberate indifference to his serious medical need.
Brown claims that the defendants demonstrated a deliberate indifference to his serious medical need. We begin our deliberate indifference analysis with CCS. As the Medical defendants correctly point out, because CCS is a private corporation, it can only be held liable for a § 1983 claim if it maintained a policy or custom that demonstrates deliberate indifference. Natale v. Camden County Corr. Facility, 318 F.3d 575, 583-584. (3d Cir. 2003) (“In order for [the Prison Health System] to be liable, the Natales must provide evidence that there was a relevant PHS policy or custom, and that the policy caused the constitutional violation they allege.”). In Count One, Brown does not allege sufficient facts to establish a claim that CCS maintained a policy or custom that demonstrates deliberate indifference. Brown claims that CCS “apparently had a primary goal to thwart all efforts to further attend to [Brown's] right leg, he being told by each of them also that he was costing far too much financially.” Doc. 114 at ¶ 41. Brown further alleges that CCS denied Brown medical services because of “callousness and hostile intentions and/or a desire to save money, lacking any valid penological goal.” Id. at ¶ 53. Brown also claims that CCS made decisions based solely on cost containment and without regard for Brown's welfare. Id. at ¶ 64.
In Count One, Brown's allegations are insufficient to establish a claim that CCS maintained a policy or custom that demonstrates deliberate indifference. Indeed, Brown makes no mention of a specific independent CCS policy, but instead, seems to generally assert that CCS prioritized financial incentives over Brown's welfare. Vague assertions that a medical vendor prioritized money over inmate health is insufficient to establish a policy or custom. See Winslow v. Prison Health Servs., 406 F.App'x. 671, 674 (3d Cir. 2011) (affirming dismissal of the plaintiff's complaint because the plaintiff did not allege “(1) what the relevant polices are, (2) what basis he has for thinking that policies to save money affected his medical treatment, or (3) what specific treatment he was denied as a result of these policies.”); see also Flores v. Pa. Dep't of Corr., No. 3:12-cv-1149, 2013 WL 2456011, at *5 (M.D. Pa. June 6, 2013) (“The complaint also lacks any facts to support Plaintiff's general conclusory statements that inadequate methods of treatment were utilized for the mere purpose of saving money or facts establishing what customs or policies existed demonstrating Corizon's failure to provide quality care.”). Therefore, Brown fails to allege sufficient facts that CCS maintained a policy or custom that demonstrated deliberate indifference. Accordingly, we recommend dismissing Count One against CCS.
Regarding the individual Medical defendants, Brown alleges sufficient facts to establish a claim that some of the individual Medical defendants were deliberately indifferent to his serious medical needs. Brown claims that sometime between September 14, 2017, through November 30, 2017, Moclock advised him that he should wait until his release to tend to his leg issues so that he could pay for the associated costs himself. Doc. 114 at ¶ 41. Per Brown, Moclock also advised him that “the costs were so great that he would not receive what was needed to address his HCV.” Id. at ¶ 42. Construing these allegations as true, Moclock denied Brown needed medical treatment for non-medical reasons. Denying an inmate needed medical treatment for non-medical reasons is sufficient to establish deliberate indifference. See Rouse, 182 F.3d at 197. Therefore, we find that Brown alleges sufficient facts that Moclock demonstrated a deliberate indifference to his serious medical need.
Regarding Monsalud, Brown claims that Monsalud labeled him as a “cry baby who should just get up and walk.” Doc. 114 at ¶ 44. As pleaded, Monsalud knew of Brown's infection, disregarded his pain and condition, and advised him to walk anyway. We find that it is plausible that Monsalud's knowledge of Brown's infection, coupled with her mocking and refusal to provide medical care is sufficient to establish a claim that she demonstrated a deliberate indifference to his serious medical need. See Perez v. Turner, No. 11-cv-6833, 2015 6951690, at *5 (D.N.J. Nov. 10, 2015) (“Where a prison doctor insists on continuing a treatment course knowing that the treatment is ‘painful, ineffective, or entails substantial risk of serious harm to prisoners,' Estelle's deliberate indifference standard is also satisfied.'”) (quoting White v. Napolean, 897 F.2d 103, 109 (3d Cir. 1990)).
Regarding Davis and Boguslaw, Brown fails to allege sufficient facts that Davis or Boguslaw were deliberately indifferent to his serious medical need. Instead, Brown merely claims that they, along with all of the other named defendants, attended to him over the relevant time period and that they had notice of his need for medical attention. Without additional facts demonstrating deliberate indifference, this bald assertion is insufficient to establish a claim for deliberate indifference. Accordingly, we recommend dismissing Count One against Davis and Boguslaw.
In Count Two, Brown alleges that the named defendants violated the Eighth Amendment regarding his treatment post-amputation. Regarding CCS, Brown fails to allege sufficient facts to establish that CCS maintained a policy or custom that demonstrated deliberate indifference. Brown only alleges that CCS adopted the DOC's allegedly unconstitutional policy regarding HCV treatment for inmates. Doc. 114 at ¶¶ 72, 76. Liability cannot attach to CCS absent a showing of its own allegedly unconstitutional policy. See Dunyan v. Pa. Dep't of Corr., No. 1:16-cv-02103, 2017 WL 3509243, at *5 (M.D. Pa. Aug. 17, 2017) (“[L]iability cannot attach to Defendant CCS absent allegations that Defendant CCS adopted or implemented its own unconstitutional policy, custom, or practice in connection with how its employees carried out the DOC's One Good Eye Policy, that resulted in a denial of Plaintiff's constitutional rights.”) (quotations omitted). Therefore, Brown fails to allege sufficient facts that CCS maintained a policy or custom that demonstrated deliberate indifference to Brown's serious medical need of postamputation care. Accordingly, we recommend dismissing Count Two against CCS.
Regarding the DOC and individual Medical defendants, Brown alleges sufficient facts to establish a claim that they were deliberately indifferent to his serious medical need of post-amputation care. Brown claims that Moclock, Monsalud, Davis, and Boguslaw did not administer DAADs or any drug treatment to treat his HCV condition. Doc. 114 at ¶ 71. Brown further claims that Wetzel, Wenerowitz, Wenhold, and Noel were all involved with the decision to withhold DAADs from all HCV infected inmates. Doc. 114 at ¶ 73. Regarding the individual Medical defendants, courts within the Third Circuit have held that an Eighth Amendment violation is plausibly alleged when the inmate did not receive any treatment for their HCV condition. See Allah v. Thomas, 679 Fed. App'x. 216, 220 (3d Cir. 2017) (holding that the plaintiff alleged an Eighth Amendment violation when the medical defendants' refused to provide HCV treatment) (“Allah alleged that he did not receive any treatment for his Hepatitis C condition, that he was not placed on a newly developed Hepatitis C treatment regimen solely because it was cost-prohibitive ... [a]ccepting these allegations as true, we conclude that Allah plausibly alleged an Eighth Amendment violation.”).
Although Brown does not allege that the DOC defendants were personally involved with his HCV drug treatment, he does identify a potential policy or custom that resulted in Brown's alleged lack of HCV drug treatment. Brown claims that the DOC defendants all acted as decision-makers for this policy and that it was enacted for non-medical reasons, which can be enough to survive a motion to dismiss. See Chimenti v. Pa. Dep't of Corr., No. 15-cv-3333, 2017 WL 3394605, at *9 (E.D. Pa. Aug. 8, 2017) (denying the DOC defendants motion to dismiss because the plaintiff alleged a DOC policy that denied DAADs to inmates with HCV). Therefore, at this early stage, we find that Brown alleges sufficient facts for a plausible Eighth Amendment violation against the DOC defendants and individual medical defendants. Accordingly, we recommend that Count Two not be dismissed at it relates Moclock, Monsalud, Davis, and Boguslaw, Wetzel, Wenerowitz, Wenhold, and Noel.
C. Count Five.
In Count Five, Brown claims that CCS violated the Eighth Amendment by acquiescing to the DOC's allegedly unconstitutional policy, thereby creating liability under a theory of corporate liability. Id. at ¶¶ 106-127. As we previously discussed, liability cannot attach to CCS on a respondeat superior basis. Brown identifies an allegedly deficient DOC policy regarding HCV treatment; however, he fails to allege a CCS policy or custom independent of the DOC policy. Additionally, Brown claims that CCS had a duty to hire and staff appropriate medical staff. The Medical defendants correctly point out that Brown fails to allege sufficient facts regarding the alleged inadequacy of the CCS's staff training to support a cause of action based upon 42 U.S.C. § 1983. See City of Canton v. Harris, 489 U.S. 378, 390-391 (1989). Accordingly, we recommend granting the motion to dismiss as it relates to Count Five.
D. Count Six.
In Count Six, Brown claims that “certain of the Defendants” violated the Fourteenth Amendment by violating his “right to be free from conditions of confinement that are excessively harsh and/or punitive.” Id. at ¶¶ 128-151. Although Brown fails to name any defendants in the caption of this count, he does specifically name Moclock, McGinley, and CCS in the body of the count. Doc. 114 at ¶¶ 137, 139, 141. Therefore, we will construe Brown's Count Six as an Eighth Amendment claim against, McGinley, Moclock, and CCS. “A claim of inhumane prison conditions may rise to the level of an Eighth Amendment violation where the prison official 'deprived the prisoner of the minimal civilized measure of life's necessities' and 'acted with deliberate indifference in doing so, thereby exposing the inmate to a substantial risk of serious damage to future health.'” Palakovic v. Wetzel, 854 F.3d 209, 225 (3d Cir. 2017) (quoting Parkell v. Danberg, 833 F.3d 313, 335 (3d Cir. 2016)). As with Brown's previous Eighth Amendment claims, here, he must allege that the conditions of his confinement posed a substantial risk to his health and that the defendants were deliberately indifferent to that risk. Additionally, he must allege that the defendants were either personally involved with violating his Eighth Amendment rights or that they implemented a policy or custom that violated his Eighth Amendment rights.
We note that although in Count Six Brown claims the defendants violated his Fourteenth Amendment rights, the body of the count suggests that this is an Eighth Amendment violation claim for cruel and unusual punishment. Brown fails to explain how Count Six should be considered a Fourteenth Amendment claim. Additionally, because the DOC defendants construe this count as an Eighth Amendment claim, so too will we.
Brown claims that, on or about December 13, 2017, he was placed inside the SCI Coal Twp. infirmary while he recovered from his amputation. Doc. 114 at ¶ 130. Per Brown, his bedding was “generally filthy and stained and visibility infested with bed bugs while red and/or white lights glared daily day and night and the air conditioning unrelentingly chilled Plaintiff to a point of extreme discomfort around the clock, he having no blankets.” Id. According to Brown, these conditions made it difficult to sleep and caused him psychological harm. Id. at ¶ 134. Additionally, Brown claims that he was forced to lay in his own excrement because the staff refused to assist him in going to the bathroom. Id. at ¶¶ 145-147. We find that Brown sufficiently alleges that he was deprived of identifiable human needs while in the infirmary. See Wilson v. Seiter, 501 U.S. 294, 304 (1991) (“Some conditions of confinement may establish an Eighth Amendment violation in combination when each would not do so alone, but only when ... that produces the deprivation of a single, identifiable human need ... for example, a low cell temperature at night combined with a failure to issue blankets.”). We now turn our discussion towards the defendants' knowledge and alleged deliberate indifference to these conditions.
Regarding McGinley, Brown claims that he failed to implement a policy or procedure that would prevent these alleged issues. Doc 114 at ¶ 139. To hold a supervisor liable because his or her policies or practices led to a constitutional violation, the plaintiff must identify a specific policy or practice that the supervisor failed to employ and must allege facts from which it can reasonably be inferred that: (1) the existing policy or practice created an unreasonable risk of constitutional injury; (2) the supervisor was aware of that risk; (3) the supervisor was deliberately indifferent to that risk; and (4) constitutional injury resulted from the policy or practice. Beers-Capitol v. Whetzel, 256 F.3d 120, 134 (3d Cir. 2001). Here, Brown fails to specifically allege what policy or practice McGinley implemented regarding the alleged inhumane conditions of the infirmary. Moreover, Brown fails to sufficiently allege that McGinley had knowledge of the infirmary conditions. Accordingly, we recommend that McGinley be dismissed as a defendant in Count Six.
Regarding Moclock, Brown claims that he is the Director of Medicine at SCI Coal Twp. and that he was responsible for the condition of the infirmary. Doc. 114 at ¶ 138. Additionally, Brown claims that Moclock was aware of the amputation procedure and, therefore, was aware that Brown would require a room that was suitable for inhabiting. Id. Based on these allegations, Brown alleges that Moclock, as the Director of Medicine at SCI Coal Twp., was aware of and maintained a practice of substandard infirmary conditions. Although Brown's allegations against
Moclock are not fully developed, at this early stage of litigation, we find that Brown sufficiently alleges that Moclock was deliberately indifferent to the deprivation of his human needs. Regarding CCS, Brown fails to allege that CCS implemented a relevant policy or practice that would cause liability to attach; therefore, we recommend that CCS be dismissed as a defendant in Count Six.
E. Counts Seven and Eight.
In Count Seven, Brown asserts that John Does 1-3 and McGinley committed “[a] First Amendment Violation and Fifth or Fourteenth Amendment Due Process Violation” by stealing his “[m]edical and [o]ther records.” Id. at ¶¶ 152-178. Per Brown, while he was away from his cell, John Does 1-3 entered his cell and removed two boxes of Brown's items, containing medical records, grievances, appeals, and other documents. Id. at ¶ 156. Brown claims that this confiscation occurred in an attempt to thwart his potential grievance and litigation efforts. Id. at ¶ 164. Additionally, Brown alleges that these confiscations frequently occur at SCI Coal Twp. and that McGinley is the final decision-maker responsible for this practice. Id. at ¶¶ 165-166.
Although Brown lists his claim as either a Fifth or Fourteenth Amendment Due Process Violation, we note that “the due process clause under the Fifth Amendment only protects against federal governmental action and does not limit the actions of state officials.” Caldwell v. Beard, 324 F.App'x. 186, 189 (3d Cir. 2009). Therefore, since this claim relates to a state correctional facility, we will construe it as a Fourteenth Amendment Due Process violation claim. See U.S. CONST. amend XIV §1. Brown, however, fails to specify if his Due Process claim is a procedural or substantive Due Process claim. Based on his allegations, we will construe his claim as a procedural due process violation.
Brown claims that his First Amendment right to petition was violated when McGinley and John Does 1-3 confiscated his medical records and refused to return them or provide a confiscation slip, thus preventing him from litigating his Eighth Amendment violation claims. Id. at ¶ 154. Brown also claims the defendants committed a Fourteenth Amendment Due Process violation by confiscating his medical records, without proper justification. Doc. 114 at ¶ 170.
Here, Brown fails to allege that McGinley participated in the alleged confiscation of his documents. Instead, Brown only claims that McGinley was the final decision-maker regarding a policy or practice that resulted in corrections officers confiscating inmates' documents. Brown fails to provide any additional facts regarding this alleged policy or practice. “‘Threadbare recital of the elements of a cause of action, supported by mere conclusory statements,' is insufficient to survive the motion to dismiss.” Mark v. Patton, 696 Fed. App'x. 579, 582 (3d Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Accordingly, Brown fails to allege sufficient facts to demonstrate McGinley's personal involvement in either the alleged First Amendment violation or the alleged Fourteenth Amendment violation. Therefore, we recommend dismissing Count Seven against McGinley.
Regarding John Does 1-3, Brown alleges that they entered his cell and confiscated his records without his consent or knowledge. Doc. 114 at ¶ 156. Brown also claims that Jon Does 1-3 “knew that the confiscation without return to Plaintiff and their refusal to provide a confiscation slip to Mr. Brown, especially at his request, were wrongful conducts and that they would be accountable for same if someone were to learn of it.” Id. at ¶ 172. Here, we find that Brown sufficiently alleges that John Does 1-3 were personally involved with the confiscation of his medical records. Moreover, the DOC defendants raise no arguments regarding John Does 1-3. Accordingly, we recommend the motion to dismiss be denied as it relates to Count Seven.
In Count Eight, Brown names the same defendants as in Count Seven and claims that the alleged theft of these records constituted retaliation. Id. at ¶¶ 179-183. “To state a plausible First Amendment claim for retaliation, a prisoner must allege that: (1) he was engaged in constitutionally protected conduct; (2) the defendant at issue took adverse action against him; and (3) his constitutionally protected conduct was a substantial or motivating factor in the decision to take that adverse action.” See, e.g., Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Although Brown does not specifically allege what protected conduct he was engaged in, he claims, in Count Seven that “[p]laintiff's First Amendment rights to be informed and to petition ... have been violated.” Doc. 114 at ¶ 178. Even accepting this as protected conduct, Brown fails to sufficiently allege how McGinley took adverse action against him. In Count Eight, Brown fails to allege any facts regarding McGinley or how he participated in any adverse action against him. Accordingly, we recommend that McGinley be dismissed as it relates to Count Eight. Additionally, for the same reasons as in Count Seven, we recommend that Count Eight survive as it relates to John Does 1-3.
Before we turn to our discussion toward Brown's Pendant State Tort Claims of Medical Malpractice, we recommend that Brown not be given further leave to amend his dismissed claims. We note that this is Brown's third amended complaint, and yet, with respect to certain claims, he has not stated a claim upon which relief can be granted. Therefore, further leave to amend would be futile. See Jones v. Unknown, 944 F.3d 478, 483 (3d Cir. 2019) (when the plaintiff “has already had two chances to tell his story . . . giving him further leave to amend would be futile.”). Accordingly, we recommend that Brown not be given further leave to amend any of his dismissed claims.
F. Count Ten.
In Count Ten, Brown brings “Pendant State Tort Claims of Medical Malpractice under the PA MCARE Act” against CCS, Moclock, Nurse “Big Red, ” and John Doe 5 or Jane Doe 1. Id. at ¶¶ 184-209. In their brief in support of the motion to dismiss, the Medical defendants argue that if Brown's federal claims are all dismissed, then we should decline to exercise supplemental jurisdiction over his state law claim. Doc. 121 at 32-33. Because we do not recommend dismissal of all of Brown's federal claims against the individual medical defendants, dismissal on this basis would be inappropriate as it relates to the individual medical defendants. We, however, do recommend that all of Brown's federal claims against CCS be dismissed. Therefore, we must decide whether we should decline supplemental jurisdiction over Brown's pendant state tort claims of medical malpractice against CCS.
“The Supplemental Jurisdiction statute, 28 U.S.C. § 1367, enables federal district courts to entertain claims not otherwise within their adjudicatory authority when those claims ‘are so related to claims . . . within [federal-court competence] that they form part of the same case or controversy.'” Artis v. D.C., 138 S.Ct. 594, 597 (2018) (quoting 28 U.S.C. § 1367(a)). But a district court may decline to exercise supplemental jurisdiction under certain circumstances. See 28 U.S.C. § 1367(c). One of those circumstances is when the district court has dismissed all claims over which it has original jurisdiction. Id. § 1367(c)(3). In this context, “[t]he decision to retain or decline jurisdiction over state-law claims is discretionary.” Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009). “That discretion, however, is not unbridled.” Id. Rather, when deciding whether to exercise supplemental jurisdiction, “a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity.” City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997) (quoting Carnegie-Mellon Univ. v. Cahill, 484 U.S. 343, 350 (1988)). The Third Circuit has held that “where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (quoting Borough of West Miflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)). Indeed, “the presumptive rule is that the state claims shall be dismissed, unless reasons of economy and fairness dictate otherwise.” Gregor v. TD Bank, N.A., No. 2:21-cv-05255, 2021 WL 4490251, at *6 (D.N.J. Oct. 1, 2021) (footnote omitted).
Here, we are recommending that the court grant the motion to dismiss as it relates to all federal claims against CCS. There is nothing unique about this case such that considerations of judicial economy, convenience, and fairness provide an affirmative justification for exercising supplemental jurisdiction over Brown's Pendant State Tort Claims of Medical Malpractice. Additionally, Brown concedes that his state law claim should be dismissed if none of his federal claims survive the motion to dismiss. See Doc. 139 at 44. Accordingly, we recommend that the court decline to exercise supplemental jurisdiction over CCS as it relates to Count Ten. Thus, we recommend that Count Ten should be dismissed as it relates to CCS. The Medical defendants also raise a statute of limitations argument regarding Count Ten. As we previously noted, we recommend, at this time, no dismissal be granted based on any statute of limitations argument.
G. Punitive Damages.
The Medical defendants also argue that Brown's request for punitive damages should be dismissed against the individual medical defendants because he has not yet established that they acted with willful or wanton conduct or reckless indifference towards him. At this early stage, where it is unclear what will be established, we recommend denying the Medical defendants' request to dismiss Brown's claim for punitive damages against the individual medical defendants.
VI. Recommendations.
Based on the foregoing, we recommend the following:
Count One: The Motion to Dismiss (doc. 117) be granted as asserted against CCS, Davis, and Boguslaw. The Motion to Dismiss (doc. 117) be denied
as asserted against Moclock, Monsalud, Nurse “Big Red, ” Jane Doe 1, John Doe 5, and Sgt. Shikes.
Count Two: The Motion to Dismiss (doc. 117) be granted as asserted against CCS. The Motions to Dismiss (docs. 117, 118) be denied as asserted against Moclock, Monsalud, Davis, Boguslaw, Nurse “Big Red, ” Jane Doe 1, John Doe 5, Sgt. Shikes, Wetzel, Wenerowitz, Wenhold, and Noel.
Count Five: The Motion to Dismiss (doc. 117) be granted as asserted against CCS.
Count Six: The Motions to Dismiss (docs. 117, 118) be granted as asserted against CCS and McGinley. The Motion to Dismiss (doc. 117) be denied as asserted against Moclock.
Count Seven: The Motion to Dismiss (doc. 118) be granted as asserted against McGinley. The Motion to Dismiss (doc. 118) be denied as asserted against John Doe 1, John Doe 2, and John Doe 3.
Count Eight: The Motion to Dismiss (doc. 118) be granted as asserted against McGinley. The Motion to Dismiss (doc. 118) be denied as asserted against John Doe 1, John Doe 2, and John Doe 3.
Count Ten: The Motion to Dismiss (doc. 117) be granted as asserted against CCS. The Motion to Dismiss (doc. 117) be denied as asserted against Moclock, Nurse “Big Red, ” John Doe 5, and Jane Doe 1.
Because we recommend that none of Brown's claims survive against CCS, we recommend that CCS be dismissed from this case entirely.
It is otherwise recommended that both motions to dismiss (docs. 117, 118) be denied.
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 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. 37