Opinion
CIV NO. 3:15-CV-1480
08-03-2018
THEODORE BRUNELLE, Plaintiff, v. CITY OF SCRANTON, et al., Defendants.
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. Introduction
The Fourteenth Amendment to the United States Constitution provides, in part, that: "No State shall . . . deprive any person of life, liberty, or property, without due process of law . . . ." U.S. Const. amend. XIV, § 1. In the context of governmental action which deprives an individual of some legally-recognized property interest, the rudiments of due process are well-established. Typically in this setting where governmental action threatens individual property rights, the individual is entitled to notice and an opportunity to be heard prior to any property deprivation. Thus, due process analysis begins with the notion that persons are typically entitled to a pre-deprivation hearing before their property rights are curtailed. In some instances, however, the exigencies of the moment may not permit a pre-deprivation hearing. In those imminent and exigent circumstances, the dictates of procedural due process are also clear: If a pre-deprivation hearing is not feasible, then due process requires that the government afford an individual a full and fair opportunity to contest any property deprivation in a post-deprivation hearing.
The instant case, requires us to consider, and apply, these familiar constitutional principles. The plaintiff, Theodore Brunelle was a licensed contractor whose license was revoked by the City of Scranton's Director of the Department of Licensing, Inspections and Permits, Patrick Hinton. Brunelle has sued Hinton and the City of Scranton, alleging, in part, that his procedural and substantive due process rights were violated in the course of this license revocation, and that the conduct of Hinton constituted a custom or policy of the city, thus making the City of Scranton civilly liable for this conduct.
Brunelle has now moved for partial summary judgment on these procedural due process, substantive due process, and municipal liability claims. (Doc. 26.) While we believe that contested factual matters may preclude judgment as a matter of law on Brunelle's municipal liability and substantive due process claims, we note that the undisputed facts show that Brunelle was never afforded a pre- or post-deprivation hearing relating to the revocation of his contractor license. On these undisputed facts, for the reasons set forth below, we recommend that the court grant summary judgment in favor of Brunelle and against Defendant Hinton on this procedural due process claim.
II. Statement of Facts and of the Case
A. Factual Background
In many ways the factual background of this dispute illustrates why timely procedural due process is so important. Procedural due process protections enhance the fairness of governmental actions by ensuring that those actions are fully informed decisions grounded upon a completely developed factual record. Here, it is apparent that the legal collision between these parties stems, in part, from mutual suspicions, suspicions which could perhaps have been addressed and reconciled through an orderly process. Such procedural due process protection is particularly appropriate and apt when the state actors and private parties have utterly irreconcilable perspectives towards one another.
So it is here. From his perspective, the plaintiff, Theodore Brunelle, has alleged that: "I had a very good relationship with everybody in th[e licensing] department, extremely good until my brother sued the City and that is when Pat Hinton and the City attacked me, thinking that I was [my brother Alex Brunelle]." (Doc. 27-1, p. 64.) In contrast, the director of the City of Scranton Department of Licensing, Patrick Hinton, had an entirely different perspective, stating that: "dealing with Alex and Ted Brunelle is quite a daunting task. Because there was a constant manipulation game that was being played . . . ." (Doc. 27-7, p.84.)
With the parties' subjective impressions cast in these starkly contrasting terms, the undisputed facts reveal that in 2014 and 2015 Theodore Brunelle worked as a licensed contractor in the City of Scranton. Much of the work done by Theodore Brunelle in Scranton was performed on behalf of his brother, Alex Brunelle, a local property developer. Alex Brunelle, in turn, experienced a contentious relationship with officials in the City of Scranton Department of Licensing, Inspections and Permits, and is currently embroiled in litigation of his own against these city officials.
In 2014, the City of Scranton had in place city ordinances and a reciprocal agreement which governed the licensing of contractors like Theodore Brunelle. (Doc. 1-2.) These procedures provided, in part, for the issuance of licenses to contractors, and also recognized on a reciprocal basis contractor licenses issued by the City of Wilkes-Barre. Pursuant to these procedures, by 2014 Theodore Brunelle had received electrical and mechanical contractor licenses directly from the City of Scranton. Theodore Brunelle also possessed electrical, plumbing and mechanical contractor licenses issued by the City of Wilkes-Barre, licenses which Scranton officials recognized pursuant to their reciprocity agreement with Wilkes-Barre.
Theodore and Alex Brunelle often worked closely together on joint projects but were not meticulous in identifying and distinguishing their respective roles as contractor and real estate entrepreneur. Thus, the two brothers frequently used the same mailing addresses for their businesses, shared office space at times, and relied upon the same support staff. (Doc. 27-1, passim.) Moreover, when Theodore Brunelle performed contracting work on Alex Brunelle's properties, the two men had a casual approach to the work permitting process, with permit applications frequently submitted under Theodore Brunelle's name, but with Alex Brunelle's business, Dunmore Exclusives, identified as the contractor. (Id.) As the City's dealings with Alex Brunelle became more contentious this lack of attention to detail in the permitting process led city officials to equate the two brothers.
This casual indifference to some specific city code requirements was plainly frustrating to city officials, and Brunelle's deposition in this litigation sheds little light upon the details of this working arrangement since Brunelle was frequently unable to clearly identify his brother's ownership interest in various companies, his own employees and contractors, the common addresses used by the two brothers, the clerical employees they may have shared, or the signatures on various building permits submitted to the city under his name. (Doc. 27-1, passim.)
As a contractor operating in Scranton, Theodore Brunelle's activities were licensed and regulated by the City. The city ordinances governing contractor licensing that were in effect in 2014 and 2015 provided some guidance regarding revocation of contractor licenses, albeit guidance which was incomplete or misunderstood in several material respects. Notably, as Patrick Hinton, the city's Director of Licensing, construed the license revocation procedures prescribed by the city ordinance, these procedures called for a hearing if a contractor appealed a revocation decision, but did not clearly allow for a pre-deprivation hearing when the city contemplated the revocation of a contractor's license. This led Hinton to conclude that no pre-deprivation hearing was permitted under the ordinance. (Doc. 27-7 p. 61.)
It is far from clear that Hinton was correct in his interpretation of this ordinance as not allowing for a pre-deprivation hearing. In fact, while the ordinance clearly calls for a hearing when a contractor challenges a license revocation decision, it is both ambiguous and largely silent on when that hearing should take place. Therefore, the ordinance could have been construed to also allow for a pre-deprivation hearing by an aggrieved person who has received notice of some proposed official action, the path generally favored by the courts as a matter of procedural due process. However, Hinton did not interpret the ordinance in this manner.
The ordinance provides as follows: § 203 -15 Procedure in case of violations; appeals. A. Procedure in case of violations. Whenever the Master Code Official or the Director of the Department of Community Development determines that there are reasonable grounds to believe that there has been a violation of any provision of this chapter, or of other applicable codes and ordinances, or of any rules and regulations adopted thereto. he shall proceed as follows: (1) Serve notice in writing of the alleged violation which shall be signed by the Director of the Department of Community Development or the Master Code Official or their authorized representative. Said notice shall be in writing and shall be served personally to the responsible party; or served by registered or certified mail with a return receipt requested; or where such responsible party cannot be found, service may be made by publishing such notice in a newspaper of general circulation for a period of three consecutive days; or served by any other method authorized under the laws of the Commonwealth of Pennsylvania (2) Said notice shall contain the section of the reasons why the notice is being issued, the section of the codes and/or ordinances which have been violated and the remedial actions required. B. Any applicant or licensed contractor aggrieved by any decision of the Master Code Official or the Director of the Department of Community Development, including but not limited to refusal or suspension of license or permit, or any other appeal, may appeal from such decision to the Building Appeals Board within 10 days from the date of decision. The forms for appeal may be obtained at the Bureau of Inspections and Licensing. Upon completion of the appeal forms, they must be returned to the Master Code Official accompanied with an applicant's fee of $150. (1) Any person aggrieved making an appeal to the Board of Building Appeals will be notified when to appear before the Board within 30 days. The Board shall hold a public hearing and upon evidence of testimony submitted will, within 30 days after the hearing, reach a decision. The decision shall be in writing, stating its reasons therefor. (2) Any person aggrieved by a decision of the Board of Building Appeals, whether or not a previous party to the decision, may appeal to the Court of Common Pleas of Lackawanna County from such decision. Appeals shall be made to the proper court within 30 days after the filing of the Board's decision in the Department of Community Development and notification to the parties of said decision.
The city ordinance also specifically called for graduated penalties for contractors who were found to be in violation of city codes, prescribing a series of license suspensions prior to any license revocation. (Doc. 1-2, p. 14.) Further, while the ordinance described a right to a deprivation hearing before an Appeals Board, followed by judicial review in the Court of Common Pleas, (Doc. 1-2, p. 14), in fact the Appeals Board described by the city ordinance did not exist in 2014. Therefore, the city could not comply with its own ordinance if a contractor sought to appeal a license revocation since the body designated by city ordinance to hear the appeal did not exist.
In addition, over time certain unwritten practices had developed within the Department of Licensing which further confused the licensing process for contractors. Thus, prior directors of the Department of Licensing had not consistently required full compliance with all written licensing requirements before issuing contractor licenses. Furthermore, in some fields, a practice had arisen in which inspectors could issue contractor licenses on their own initiative, (27-7, pp. 12-13), a practice that was aptly described as "very confusing and mixed up." (Doc. 27-7, p. 12, l. 18-19.)
In January of 2014, Patrick Hinton was appointed to serve as the Director of Licensing, Inspections and Permits for the City of Scranton. ( Doc. 27-7, p. 8.) Prior to accepting this position, Hinton had worked as a drug and alcohol counselor and as a wellness coordinator for the Scranton School District. (Doc. 27-7, p. 7.) Hinton had no previous direct work experience with the Department of Licensing, Inspections and Permits before assuming the position of director of that office.
Owing to this lack of prior experience. Hinton also began his tenure as Director of the Department of Licensing, Inspections and Permits without the benefit of a comprehensive institutional background and knowledge regarding the operations of that office. Thus, for more than a year after he assumed these duties Hinton was unaware of material information pertaining to the city's licensing and license revocation procedures. For example, Hinton was unaware of the reciprocity arrangement with Wilkes-Barre for more than a year. (Doc. 27-7, p. 24.) Likewise, Hinton was unaware that some inspectors had been unilaterally issuing contractor licenses in various trades without his prior approval. (Doc. 27-7, p. 18.) Hinton was also unaware of the fact that there was no Appeals Board in place to review appeals of license revocation decisions during the first year of his tenure as Director. (Doc. 27-7, p. 41.) Finally, Hinton was not informed that the City's own ordinances called for graduated penalties for contractors, beginning with suspensions of licenses before proceeding to license revocations.
It was against this backdrop that the events leading up to this lawsuit took place. Those events began in September of 2014. By that time Hinton had become familiar with a number of alleged licensing, permitting and code violation problems relating to properties owned by Alex Brunelle, and renovated by Theodore Brunelle. Because many of the permit applications for renovations had been issued to Theodore Brunelle, but identified the contractor as Dunmore Exclusives, a company operated by Alex Brunelle, city officials equated and conflated the two brothers in terms of assessing accountability for various housing code issues.
Indeed, Hinton admitted as much in his deposition, stating his belief that Theodore Brunelle's claim that his business was separate and distinct from Dunmore Exclusives was a "misrepresentation". (Doc. 27-7, p. 87.)
On September 23, 2014, Hinton sent a letter to Brunelle, under the subject line, "License to Work in Scranton." (Doc. 27-2, p. 2.) This letter reflected the conflation and confusion of the Brunelle brothers by city officials. While the letter was addressed to Theodore Brunelle, it was mailed to the company operated by his brother Alex Brunelle, Dunmore Exclusives. (Id.) The text of the letter confirmed this confusion, in that the correspondence to Theodore Brunelle began with a recitation which related largely to the activities of his brother, Alex Brunelle. Thus, the correspondence from Hinton stated that:
I am sorry to have to write to you under these circumstances but these issues must be addressed. Too often your company is violating our City Laws in regards to Construction Codes, Permits, Zoning Regulations and our Condemned Policy.
Several times you have been warned, cited, your properties have been condemned and warning letters have been issued. In addition, I know of many occasions where you allowed tenants to occupy a condemned building, added illegal apartments and have completed work without any permit being applied for.
(Id.)
With the exception of Hinton's complaint concerning the failure to obtain permits prior to performing renovation work, the matters listed by Hinton in the introduction to his September 23 correspondence related largely to ownership and management of various properties by Dunmore Exclusives, Alex Brunelle's company.
The correspondence then turned to Hinton's perceived issues with Theodore Brunelle's contactor licensing status in the City of Scranton, stating:
I understand that you do not have a Scranton License to perform electrical, plumbing and mechanical work and apply for permits as you did not meet the requirements of our City Ordinance 155 of 1999. However, you do have a Wilkes-Barre License to perform such work and you were allowed to work in Scranton even though you do not meet the City's standards.
(Id.)
As to these concerns voiced by Hinton in his September 23 correspondence, it is undisputed that Hinton's letter was factually incorrect on a number of scores, and reflected at best an incomplete understanding of Brunelle's contractor licensing status in Scranton. Hinton has acknowledged that, as of September 23, 2014, Brunelle possessed licenses issued by the City of Scranton to perform electrical and mechanical work. Hinton also concedes that he was unaware that Brunelle held these licenses to perform electrical and mechanical work when he wrote this letter. (Doc. 27-7, p. 76.) Further, Hinton's September 23 correspondence failed to acknowledge another material fact regarding Brunelle's licensing status; namely, that Brunelle was authorized to perform plumbing work in the City pursuant to the Reciprocal Licensing Agreement, as he had obtained a plumbing license from the City of Wilkes-Barre. Once again, Hinton's misstatement seemed to have flowed from a lack of information, as Hinton was apparently unaware of the existence of this reciprocal agreement. (Doc. 27-7, pp. 76-7.)
Having premised his letter to Theodore Brunelle on these misstatements concerning his licensing status in the city, Hinton's September 23 letter closed with the following admonition:
Be advised, this will be the only warning I will give regarding the above mentioned violations. If you or your company is found in violation again for any of the above I will be forced to block any and all permits that you apply for. You will not be allowed to work in the City.
(Doc. 27-2, p. 2.)(Emphasis in original).
Notably, nothing in Hinton's September 23 letter afforded Brunelle an opportunity for a hearing prior to the revocation of any contractor licenses. Instead, Hinton simply indicated that following this warning if Hinton concluded that problems persisted Brunelle would not be allowed to work in the city. The failure of Hinton to afford Brunelle any opportunity to challenge this proposed action was consistent with Hinton's understanding that there was no procedure for a pre-deprivation hearing under the city ordinance. (Doc. 27-7, p. 61.)
On September 30, 2015, Brunelle replied to this correspondence, rebutting a number of Hinton's assertions and stating that:
Your letter is also inappropriately addressed to me at "Dunmore Exclusives" and threatens action against me "if you or your company is found in violation again for any of the above." (Emphasis added.) I am an independent contractor of Dunmore Exclusives LLC. and I am not, nor have I ever been, an equity owner, officer, director, or employee of that company or any of its subsidiaries. Your threat to take licensing action against me as an individual, based on alleged wrongdoing by Dunmore Exclusives LLC. is misguided and would be illegal. I am responsible for my own actions only, and have been, and will continue to be, in full compliance with all applicable laws, ordinances and codes.
(Doc. 27-2, p. 3.)
Five months then elapsed without any further action on Hinton's part. Then on February 19, 2015, Hinton wrote to Brunelle revoking his contractor licenses "effective immediately" (Doc. 27-2, p. 12.) Hinton's revocation letter continued to equate Theodore Brunelle with his brother's company, Dunmore Exclusives. Thus, the letter was addressed both to Theodore Brunelle and Dunmore Exclusives. (Id.)
The revocation letter, however, cited some new and different grounds for the decision to revoke Brunelle's contractor licenses. While acknowledging that Brunelle had previously informed him that he was not employed by Dunmore Exclusives, Hinton's February 19 letter cited the fact that: "in many of the permits you applied for (Electrical, Mechanical, Plumbing & Building) you list the owner of the property and the contractor as one in the same, 'Dunmore Exclusives.' " (Id.) Citing this inconsistency, and Dunmore Exclusive's compliance history with the Department of Licensing, Inspections and Permits, Hinton justified the decision to revoke Brunelle's contractor licenses. (Id.) Thus, the first rationale advanced by Hinton to support this revocation rested upon matters that Hinton knew were factually disputed by Brunelle.
Hinton's February 19, 2015 letter then tacitly acknowledged that he had misstated Brunelle's licensing status in his September correspondence, but provided a new justification for revoking these licenses. In particular, Hinton acknowledged that:
In regards to your contractor's licenses to work in the City, I have discovered you were issued a City Electrical and Mechanical license in error. You were issued these licenses on the basis of solely passing a test. You did not meet the requirements to receive a Masters Contractors license pursuant to FOC # 155 of 1999. Furthermore, you do not hold a Plumbing Contractor License in Scranton, only a Wilkes-Barre Plumbing License. You were given a reciprocal good faith agreement by the previous Director of this Department to perform plumbing work within the City. Unfortunately, my views differ drastically from his.
(Id.)
Thus, Hinton now conceded that Brunelle possessed contactor's licenses issued by the City of Scranton, contrary to what he had represented in his September 2014 letter, but unilaterally revoked those licenses asserting that they had been issued "in error." Hinton also characterized the reciprocal recognition of Brunelle's licenses issued in Wilkes-Barre as an accommodation afforded him by a prior director, and not as a city policy, agreement or commitment. In fact, this characterization of the reciprocal agreement by Hinton seems to have been mistaken since Hinton has admitted that the city decided to continue to honor Wilkes-Barre contractor licenses through 2017. (Doc. 27-7, pp. 32, 39.)
These current city policies create a certain measure of metaphysical schizophrenia in this case, which is not fully acknowledged by either party. It seems that while Hinton has revoked Brunelle's Scranton-issued contractor licenses, the Department of Licensing also later agreed on the advice of counsel to continue to honor contractor licenses issued by Wilkes-Barre, which would presumably include Brunelle's Wilkes-Barre contractor licenses.
Hinton's February 19, 2015 letter concluded with an administrative fiat announced without any opportunity for a pre-deprivation hearing, or any discussion of post-deprivation avenues of relief. Instead, Hinton simply stated that:
Therefore, your contractor's license(s) and any previous agreements you had to work in the City of Scranton are hereby revoked on the basis of the above information. This decision is to be implemented effective immediately.
(Id.)(Emphasis in original).
Hinton's February 19, 2015 letter revoking Brunelle's contractor licenses was addressed both to Theodore Brunelle and to Dunmore Exclusives and according to Brunelle this ambiguous form of address caused a delay in him receiving notice of this agency decision. On May 8, 2015 Brunelle responded by letter to Hinton's correspondence, stating, in part, that:
To my extreme embarrassment, Dunmore Exclusives LLC has just informed me that they received, several months ago, a letter from you, dated February 19, 2015, purporting to revoke my licenses as a Scranton Contractor.
You previously threatened such action several months ago, not based on alleged wrongdoing by me, but based on allegations against Dunmore Exclusives LLC. Responding to that threat, I informed you in writing that I was not an officer, director, or owner of Dunmore Exclusives LLC, and that whatever grievances you might have against Dunmore Exclusives LLC, you had none against me. You did not respond to my letter and I assumed that you had realized your error and decided against the action you had threatened.
I now learn that you have purported to revoke all of my construction licenses, but did not send the 'revocation letter' to me but to one of my clients. The revocation letter, which I enclose for your convenient reference, likewise alleges no wrongdoing by me. By sending it to the wrong address, you guaranteed that I would have no opportunity to challenge the letter.
Your purported revocation of my construction licenses is a serious and actionable violation of law. I demand that you rescind the letter immediately.
(Doc. 27-7, pp. 132-133; Doc. 27-2, p. 15.)
When Brunelle received no response to this correspondence from Hinton, on May 11, 2015 he endeavored to file an appeal of this decision. (Doc. 27-2, pp. 20-2.) At the time that Brunelle submitted this administrative appeal Hinton understood that the city ordinance governing contractor licensing did not allow for pre-deprivation hearing. (Doc. 27-7 p. 61.) However, the ordinance described a right to a hearing before an Appeals Board, followed by judicial review in the Court of Common Pleas. ( Doc. 1-2, p.14.) While the city ordinance expressly allowed for an administrative appeal of a license revocation, the Appeals Board described by the city ordinance did not exist in 2015, a fact which Hinton only learned well after he assumed responsibility as Director of this agency. (Doc. 27-7, p. 41.) Therefore, in 2015 the city could not fully comply with its own ordinance if a contractor sought to appeal a license revocation since the body designated by city ordinance to hear the appeal did not exist.
Presented with this appeal, and confronted with the fact that the city did not have an Appeals Board in place, Hinton first declined to accept Brunelle's appeal. (Doc. 27-7, p. 146.) Following discussions with the City Solicitor, Hinton then wrote to Brunelle on May 22, 2015, stating that:
[A]fter discussing the matter with our Solicitor regarding your contracting licenses and the revocation thereof, he recommended that you take your appeal to the Court of Common Pleas of Lackawanna County. This decision was made in light of not having an appropriate Board to appeal to as the City's Building Board of Appeals is no longer in existence. Therefore, if you have any objections to the determination of this office, you may appeal this matter to the Court of Common Pleas of Lackawanna County within thirty (30) days upon receipt of this letter.
(Doc. 27-7 p. 152; Doc. 27-2, p. 27.)
Hinton did not further explain how Brunelle was to seek judicial review of this decision in state court. For his part, Brunelle did not pursue an appeal to the Court of Common Pleas. Instead, on July 30, 2015, Brunelle filed in instant federal civil rights lawsuit. (Doc. 1.)
B. Procedural History
Brunelle's complaint names the City of Scranton, and Patrick Hinton as Director of the City's Department of Licensing, Inspections, and Permits as defendants and lodges five separate claims against these defendants. (Doc.1.) In this complaint Brunelle alleges that by revoking his contractor's licenses Hinton and the City: (1) violated Brunelle's right to procedural due process, (2) violated his substantive due process rights; (3) deprived him of equal protection of the law; and (4) tortiously interfered with his on-going and prospective contractual relations. (Id.) Brunelle also asserts that this action constituted a policy, custom or practice of the City of Scranton, thus making the city liable for these civil rights infractions. (Id.) Brunelle has now filed a motion for partial summary judgment in this case, seeking a judgment in his favor on these procedural and substantive due process claims, as well as his municipal liability claims. (Doc. 26.) This motion for partial summary judgment is fully briefed by the parties and is, therefore, ripe for resolution.
While we believe that contested factual matters may preclude judgment as a matter of law on Brunelle's municipal liability and substantive due process claims, for the reasons set forth below, we recommend that the court grant summary judgment in favor of Brunelle against Hinton on this procedural due process claim.
III. Discussion
A. Summary Judgment —Standard of Review
Brunelle has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P., Rule 56(a). Through summary adjudication a court is empowered to dispose of those claims that do not present a "genuine issue as to any material fact," Fed. R. Civ. P. 56, and for which a trial would be "an empty and unnecessary formality." Univac Dental Co. v. Dentsply Int'l, Inc., No. 07-0493, 2010 U.S. Dist. LEXIS 31615, at *4 (M.D. Pa. Mar. 31, 2010).
The substantive law identifies which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id. at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the nonmoving party's claims, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial," summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the nonmoving party and more than some metaphysical doubt as to the material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
B. Brunelle is Entitled to a Summary Judgment in His Favor on His Procedural Due Process Claim Against Defendant Hinton
Turning first to Brunelle's procedural due process claim, the legal standards which govern such claims are familiar, well-settled and essentially uncontested by the parties. "To state a claim under § 1983 for deprivation of procedural due process rights, a plaintiff must allege that (1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of 'life, liberty, or property,' and (2) the procedures available to him did not provide 'due process of law.' Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.2000)." Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006). With respect to the first element of this claim—deprivation of a property interest—it is undisputed that individuals have a property interest in a professional license which triggers procedural due process protections. See e.g., Telang v. Com. Bureau of Prof'l & Occupational Affairs, 561 Pa. 535, 540, 751 A.2d 1147, 1150 (2000); Herz v. Degnan, 648 F.2d 201, 208 (3d Cir. 1981). Therefore, in Brunelle's case, the revocation of his contractor's licenses by Hinton implicated a sufficient property interest to trigger some procedural due process protections.
Once it is determined that the Due Process Clause applies, "the question remains what process is due." Morrissey v. Brewer, 408 U.S. 471, 481 [92 S.Ct. 2593, 2600, 33 L.Ed.2d 484] (1972). With respect to this question, it is well-settled that:
'(d)ue process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). "(D)ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Accordingly, resolution of the issue whether the administrative procedures provided here are constitutionally sufficient
requires analysis of the governmental and private interests that are affected. Arnett v. Kennedy, supra, 416 U.S., at 167-168, 94 S.Ct., at 1650-1651 (Powell, J., concurring in part); Goldberg v. Kelly, supra, 397 U.S., at 263-266, 90 S.Ct., at 1018-1020; Cafeteria Workers v. McElroy, supra, 367 U.S., at 895, 81 S.Ct., at 1748-1749. More precisely, . . . identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See, e. g., Goldberg v. Kelly, supra, 397 U.S., at 263-271, 90 S.Ct., at 1018-1022.Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 902-03, 47 L. Ed. 2d 18 (1976).
Applying this analysis, several tenets have emerged which define the requisites of due process when government action affects individual property rights. In this context, "[f]undamentally, procedural due process requires notice and an opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 333, 348, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The hearing must be 'at a meaningful time and in a meaningful manner.' Id. at 333, 96 S.Ct. 893." Mancini v. Northampton Cty., 836 F.3d 308, 315 (3d Cir. 2016). In construing the procedural due process requirement that a hearing be held at a meaningful time and in a meaningful manner we are cautioned that:
Before a person is deprived of a protected interest, he must be afforded opportunity for some kind of a hearing, 'except for extraordinary situations where some valid governmental interest is at
stake that justifies postponing the hearing until after the event.' Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113. 'While '(m)any controversies have raged about . . . the Due Process Clause,' . . . it is fundamental that except in emergency situations . . . due process requires that when a State seeks to terminate (a protected) interest . . ., it must afford 'notice and opportunity for hearing appropriate to the nature of the case' before the termination becomes effective.' Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90.Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 570, n.7, 92 S. Ct. 2701, 2705, 33 L. Ed. 2d 548 (1972).
Thus, as a general rule, procedural due process is satisfied only when the person whose property rights are being adversely affected is afforded notice and a right to be heard prior to the deprivation of their rights. While due process is sufficiently flexible to allow the government to forego a pre-deprivation hearing in certain emergency settings, in those instances a prompt post-deprivation hearing is required.
In the instant case, we believe that procedural due process required a pre-deprivation hearing before Brunelle's contractor licenses were revoked, something that undeniably did not take place here. Turning to the three threshold due process factors prescribed by Mathews v. Eldridge, supra, we find that all of these factors favor affording a pre-deprivation hearing to contractor license holders like Brunelle. First, we find that the private interest that is affected by this official action is substantial and significant since revocation of a professional license can in many instances deprive an individual of the right to practice that profession. We also conclude that that the second factor identified in Mathews v. Eldridge—the risk of an erroneous deprivation of such interest through the procedures used—also weighs heavily in favor of some form of pre-deprivation due process. Indeed, the facts of this case present a cautionary tale on the importance of such a process, since we can see that Hinton's decision to revoke Brunelle's contractor's licenses, which was made in the absence of any pre-deprivation due process, was based on factual information that was either contested, or later acknowledged to be incomplete or inaccurate. Finally, the third Mathews factor, the Government's interests, including the functions involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail, does not mitigate against providing a pre-deprivation hearing in this setting. Indeed, we note that the city ordinance in effect at the time that Brunelle's license was revoked expressly called for an Appeals Board hearing by aggrieved contractors. Therefore, the city's own ordinance contemplated a hearing for aggrieved contractors whose licenses were revoked. Accordingly the imposition of a due process requirement for a pre-deprivation hearing, which is typically required under the Fourteenth Amendment, results in no greater incremental burden on the government beyond that which its own ordinance expressly contemplated.
For their part, the defendants do not appear to contest the general proposition that government actors are typically required to provide a pre-deprivation opportunity to be heard in this setting. Instead, the defendants seek safe harbor and attempt to avoid summary judgment on this claim by relying upon the emergency exception to this rule, which permits post-deprivation hearing relief in "extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event." Bd. of Regents of State Colleges v. Roth, supra, 408 U.S. 564 at n.7.
In our view, this argument fails for at least five reasons.
First, it is evident that this defense is a post hoc justification that was not the actual rationale relied upon by Hinton at the time that he took this action. Instead, it is apparent that Hinton believed that there was no pre-deprivation hearing process available to contractors under the city ordinance. Given Hinton's stated belief that there was no pre-deprivation process available to Brunelle it is difficult to now justify his actions as a determination that this situation fell within some narrow emergency exception to the due process requirement of a pre-deprivation hearing.
In fact, when questioned on the precise issue, Hinton stated that he believed that there was no pre-deprivation procedure. In his deposition Hinton was asked whether the city ordinance allowed for a pre-deprivation hearing, and responded: "I don't believe so, . . . I don't think, as far as I'm aware, that that procedure was in place." (Doc. 27-7, p. 61.) In fact, Hinton seemed perplexed by the idea of a pre-deprivation hearing, asking: "Well, how would he have an opportunity before I sent the letter [revoking Brunelle's license]? He wouldn't even have been notified." (Id., p. 60.)
Second, the chronology of these events severely undercuts any suggestion that Hinton's decision was a response to a sudden, imminent or emergent situation. Instead, it is evident that Hinton was responding to what he perceived as chronic regulatory compliance issues involving Dunmore Exclusives. For example, Hinton's September 23, 2014 letter alluded to the fact that "[s]everal times you have been warned, cited, your properties have been condemned and warning letters have been issued," (Doc. 27-2, p. 2), and stated:
Be advised, this will be the only warning I will give regarding the above mentioned violations. If you or your company is found in violation again for any of the above I will be forced to block any and all permits that you apply for. You will not be allowed to work in the City.
(Doc. 27-2, p. 2.)
Nothing in this admonition suggested an immediate exigency and Hinton's inaction in the ensuing months in the face of what Hinton described as similar conduct by Brunelle confirms that this issue was not deemed an emergency since five months then elapsed before Hinton revoked Brunelle's contractor's licenses on February 19, 2015. That revocation decision appears to have been based in large measure on these longstanding grievances between the city and Dunmore Exclusives since Hinton's revocation letter stated that: "Since my last letter to you regarding the conduct in which 'Dunmore Exclusives' handles itself by continually violating City laws, nothing that I can see has changed." (Doc. 27-2, p. 12.) The fact that Hinton acknowledged the continuing nature of these compliance issues over a period of many months before acting fatally undermines any assertion that the situation confronting the city in February of 2015 was a sudden emergency which required immediate action without pre-deprivation due process.
Third, the stated rationale for the revocation action taken on February 19, 2015, is inconsistent with a claim of a sudden emergency. In fact, Hinton's principal articulated justification for revoking Brunelle's contractor licenses on February 19 is an alleged mistake made by his own department. As Hinton stated:
In regards to your contractor's licensees to work in the City, I have discovered you were issued a City Electrical and Mechanical license in error. You were issued these licenses on the basis of solely passing a test. You did not meet the requirements to receive a Masters Contractors license pursuant to FOC # 155 of 1999. Furthermore, you do not hold a Plumbing Contractor License in Scranton, only a Wilkes-Barre Plumbing License. You were given a reciprocal good faith agreement by the previous Director of this Department to perform plumbing work within the City. Unfortunately, my views differ drastically from his.
(Id.)
It is difficult to see how what Hinton describes as a longstanding error by his own agency in issuing a license to Brunelle can be construed as an extraordinary situation where some valid governmental interest is at stake that justifies postponing any hearing until after Brunelle's licenses were revoked.
Fourth, the chronology of these events actually underscores the importance of the due process rationale articulated by the Supreme Court in Mathews v. Eldridge, which called for pre-deprivation due process when there exists a risk of an erroneous deprivation through the procedures used by an agency. Here, when we consider the actions taken by Hinton, and the rationales articulated for those actions, it is evident that Hinton acted upon information which was either incomplete, inaccurate or at a minimum factually contested. Thus, Hinton's September 23, 2014 letter stated that Brunelle did not possess any Scranton contractor's licenses, a factual assertion which was incorrect. Hinton's February 19, 2015 letter acknowledged this error, but then compounded the error by suggesting that Brunelle's reciprocal licensing privileges were simply some ad hoc accommodation by a prior licensing director, when it is now clear that the these reciprocal privileges had a far more substantial grounding. Further, Hinton's license revocation decision rested in large measure on his judgment that Theodore Brunelle was in some fashion responsible for what Hinton perceived to be the shortcomings of Alex Brunelle's company, Dunmore Exclusives. Yet, at the time that Hinton unilaterally acted to revoke Theodore Brunelle's contractor's licenses he knew that Brunelle disputed the claimed affiliation between his activities and Dunmore Exclusives. These factual errors, ambiguities, inconsistencies and disputes which riddled Hinton's decision-making process created a potential for error and, under Mathews, called out for some form of a pre-deprivation hearing.
Finally, the argument that Hinton met all of his procedural due process obligations fails because, even if we concluded that Hinton could forego a pre-deprivation hearing before revoking Brunelle's contractor's' licenses, Brunelle was constitutionally entitled to a meaningful post-deprivation hearing, and it seems doubtful that he received such an opportunity for meaningful post-deprivation review of this decision in the instant case. Brunelle did not receive a post-deprivation hearing due to a series of missteps by city officials. Although the city's ordinance expressly provided that contractors aggrieved by licensing decisions were entitled to a hearing before an Appeals Board, the city had neglected to maintain such an Appeals Board. Thus, when Brunelle sought to exercise the process which was his due under the city's ordinance, Hinton initially refused to accept his administrative appeal, and later was compelled to advise Brunelle that he could not receive the administrative appeal guaranteed to him by the city ordinance because no Appeals Board existed. In short, in 2015 the city could not fully comply with its own ordinance since the body designated by city ordinance to hear the appeal did not exist.
Instead, Hinton was left to suggest that Brunelle go to court if he was dissatisfied with the decision to revoke his contractor licenses. Citing Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 682 (3d Cir. 1991), abrogated by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, PA, 316 F.3d 392 (3d Cir. 2003), the defendants now suggest that this advice completely satisfied their due process obligations since it afforded a full judicial mechanism with which to challenge the administrative decision. (Doc. 31, p. 15.) However, Midnight Sessions is readily distinguishable from the instant case on a number of grounds. Most particularly, in Midnight Sessions, the city actually had in place an appeals board, and an administrative appeals process which the plaintiffs used. In contrast, the administrative appeals process in this case was, in effect, a completely hollow promise since no Appeals Board actually existed to hear Brunelle's appeal.
We also note that, beyond advising Brunelle that he could seek review of this license revocation in the Court of Common Pleas, Hinton provided no explanation in May of 2015 concerning how an appeal might lie to the state courts from this action, and the defendants do not further explain how such a judicial mechanism might have existed to permit judicial review in state court of Hinton's actions. In the absence of any clearly articulated avenue of judicial review we are left to speculate that the defendants may have been suggesting that 2 Pa. C.S. §751, et seq., provided some means of judicial review in state court. Our own reading of this state statute , however, does not lead to the conclusion that it would have necessarily allowed meaningful review of this action, since the statute seems to contemplate reviews of local agency "adjudications", id., §752, and anticipates that some agency board would have developed a record of its proceedings, id., §754, neither of which took place here. --------
Indeed, adopting the position urged by the defendants could lead to potentially mischievous consequences, since it would suggest that local agency procedural due process requires nothing more than advice to those injured that they should go to court. Because we deem this procedural due process protection to have greater content, we recommend that the district court decline the defendants' invitation to find that the process afforded here—which provided neither pre- nor post-deprivation process in any meaningful way—satisfied the requirements of the Fifth Amendment. Instead, it is recommended that the court grant summary judgment in favor of Brunelle and against Hinton on this procedural due process claim.
C. Brunelle is Not Entitled to Summary Judgment on His Substantive Due Process Claims
While we submit that the flawed process used in revoking Brunelle's contractor licenses states a procedural due process violation as a matter of law, the same cannot be said for Brunelle's substantive due process claim. The legal standards governing substantive due process claims are both familiar and exacting. In this context: "The Supreme Court has emphasized that the 'touchstone of due process' is protection against arbitrary government action. Government action is 'arbitrary in the constitutional sense' when it is 'so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'" L.R. v. Sch. Dist. of Philadelphia, 836 F.3d 235, 246 (3d Cir. 2016)(footnotes omitted). Thus:
To establish a substantive due process claim, a plaintiff must prove the particular interest at issue is protected by the substantive due process clause and the government's deprivation of that protected interest shocks the conscience ... Deprivation violates due process only when it shocks the conscience, which encompasses only the most egregious official conduct ... while the meaning of the [shocks the conscience] standard varies depending upon factual context, merely alleging an improper motive is insufficient, even where the motive is
unrelated to the merits of the underlying decision. Chainey v. Street, 523 F.3d 200, 219-20 (3d Cir.2008) (internal citations and quotations omitted).L.H. v. Pittston Area Sch. Dist., 130 F. Supp. 3d 918, 928-29 (M.D. Pa. 2015), aff'd, 666 F. App'x 213 (3d Cir. 2016).
In this case, it cannot be said as a matter of law that the defendants' actions meet the exacting benchmarks required to sustain a substantive due process claim. To be sure, the procedure used in this case to revoke Brunelle's license was flawed. However, the evidence would permit an inference that those procedural shortcomings were the consequence of a series of mishaps, mistakes, missteps and misunderstandings, rather than some form of calculated conscience-shocking behavior. Since the evidence plainly permits different, and competing, conclusions regarding whether the defendants' conduct shocks the conscience and encompasses the most egregious and outrageous of official conduct, summary judgment in favor of the plaintiff is not appropriate on this claim, and Brunelle's motion for partial summary judgment on this substantive due process claim should be denied.
D. Brunelle is Not Entitled to Summary Judgment on Any Monell Municipal Liability Claims Against the City of Scranton
Finally, in this motion for partial summary judgment, Brunelle seeks summary judgment in his favor on his municipal liability claims against the City of Scranton, arguing that the evidence reveals as a matter of law a custom, policy and practice of unconstitutional conduct on the part of the city and its employees. Like, Brunelle's substantive due process claim, this municipal liability claim is weighed against standards which are both familiar and precise. As we have observed in the past:
In Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ("Monell "), the Supreme Court held that a municipality may be held liable under 42 U.S.C. § 1983 for a constitutional injury that directly resulted from a municipality's policy, custom, or practice. Id. at 695, 98 S.Ct. 2018. Accordingly, a Monell claim seeks to impose municipal liability for a constitutional injury that was causally connected to a municipal policy, custom, or practice. See id.; see also Carreno v. City of Newark, 834 F.Supp.2d 217, 231 (D.N.J.2011). "Under Monell, a municipality cannot be subjected to liability solely because injuries were inflicted by its agents or employees." Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir.2007). Instead, "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. (quoting Monell, 436 U.S. at 694, 98 S.Ct. 2018).It is essential to a Monell claim that there be a "direct causal link between a municipal policy or custom and the alleged constitutional deprivation" in order to establish municipal liability. City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).Hunter v. Prisbe, 984 F. Supp. 2d 345, 353 (M.D. Pa. 2013).
Case law construing Monell recognizes that in certain instances a single act by an agency head can define agency policy or custom and establish institutional civil rights liability. Thus, "a government policy or custom can be established in two ways. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir.1990). The Plaintiffs may establish a government policy by showing that a 'decisionmaker possess[ing] final authority to establish municipal policy with respect to the action' issued an official statement of policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). The Plaintiffs may establish that a course of conduct constitutes a 'custom' when, though not authorized by law, 'such practices of state officials [are] so permanent and well settled' that they operate as law. Monell, 436 U.S. at 690, 98 S.Ct. 2018. In either instance, the Plaintiffs have the burden of showing that a government policymaker is responsible by action or acquiescence for the policy or custom. Andrews, 895 F.2d at 1480." Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 250 (3d Cir. 2007).
While the plaintiff relies upon Hinton's position as Director of the Department of Licensing, Inspections and Permits to argue that he was a final decisionmaker whose actions established a city policy, we believe that disputed factual questions do not permit us to reach this conclusion as a matter of law at the present time. At the outset, no municipal liability claim lies with respect to Brunelle's substantive due process claim since that underlying constitutional claim remains factually disputed on its merits.
Brunelle's procedural due process claim raises closer questions concerning municipal liability given our conclusion that Hinton employed a flawed process in revoking these contractor licenses, but upon reflection we conclude that it cannot be said as a legal matter that Hinton's actions reveal that a "decisionmaker possess[ing] final authority to establish municipal policy with respect to the action" issued an official statement of policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Quite the contrary, there is an ad hoc quality to Hinton's actions which is suggestive of a lack of policy, rather than illustrative of the existence of some policy, custom or practice. For example, while the city's announced policy, as articulated in the city ordinance, called for an administrative appeal process of license revocation decisions, through a series of missteps and mishaps, Hinton revoked these this license without affording Brunelle any hearing.
Furthermore, it is important to recognize that there are significant limitations and restraints upon the theory articulated here by the plaintiff as the grounds for Monell municipal liability; namely, the view that agency liability springs from a single decision by an agency decisionmaker. In fact, the Supreme Court has urged caution when inferring such liability stating that:
[W]e hasten to emphasize that not every decision by municipal officers automatically subjects the municipality to § 1983 liability. Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action
ordered. The fact that a particular official—even a policymaking official—has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. See, e.g., Oklahoma City v. Tuttle, 471 U.S., at 822-824, 105 S.Ct., at 2435-2436. The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable. Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority, and of course, whether an official had final policymaking authority is a question of state law. However, like other governmental entities, municipalities often spread policymaking authority among various officers and official bodies. As a result, particular officers may have authority to establish binding . . . policy respecting particular matters and to adjust that policy for the county in changing circumstances. . . . . We hold that municipal liability under § 1983 attaches where—and only where—a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. See Tuttle, supra, at 823, 105 S.Ct., at 2436 (" 'policy' generally implies a course of action consciously chosen from among various alternatives").Pembaur v. City of Cincinnati, 475 U.S. 469, 481-84, 106 S. Ct. 1292, 1299-300, 89 L. Ed. 2d 452 (1986).
Given that it appears in this case that these missteps may have been, in part, a function of the fact that Hinton, who was new to this position, lacked institutional knowledge regarding some past agency practices, was not fully informed regarding the appeal procedures that were actually in place, and had never previously revoked any contractor license, (Doc. 27-7, pp. 24, 41, 46, 145), it cannot be said as a matter of law that Hinton's actions represented "a deliberate choice to follow a course of action [that] is made from among various alternatives by the official . . . responsible for establishing final policy with respect to the subject matter in question." Id. Therefore, we cannot conclude on summary judgment that this single episode rose to the level of an official statement of policy by a final agency decisionmaker which would give rise to institutional liability under Monell.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the plaintiff's motion for partial summary judgment (Doc. 26) be GRANTED, in part, and DENIED, in part as follows: The motion should be GRANTED with respect to the procedural due process claim lodged against Defendant Hinton but DENIED in all other respects.
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.
Submitted this 3rd day of August, 2018.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge