Opinion
CIVIL 3:22-CV-1681
10-28-2022
SHAWN CHRISTY, et al., Plaintiff v. DONALD TRUMP, et al., Defendants.
Mannion Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Factual Background
This case comes before us for a legally mandated screening review. On this score, Shawn Christy's pro se complaint calls to mind of the wisdom of the American humorist Will Rogers, who once stated: “People who fly into a rage always make a bad landing.” Dougherty v. Advanced Wings, LLC, No. 1:13-CV-447, 2013 WL 4041589, at *10 (M.D. Pa. Aug. 7, 2013).
Shawn Christy is an undeniably angry man.
Christy's anger led to his conviction and imprisonment since Christy was tried and convicted of multiple offenses involving threatened violence against others who had displeased him. Specifically, Christy was convicted:
[F]ollowing a seven-day trial which resulted in a guilty verdict on all twelve counts contained in the Second Superseding Indictment (Doc. 47). (Doc. 211.) Specifically, on November 27, 2019, the jury
convicted Defendant of one count of threatening the President of the United States (18 U.S.C. § 871), three counts of transmitting threatening communication (18 U.S.C. § 875(c)), two counts of interstate transportation of stolen vehicles (18 U.S.C. § 2312), two counts of interstate transportation of stolen firearms (18 U.S.C. § 922(i)), two counts of interstate transportation of a firearm while under an Information for a felony offense (18 U.S.C. § 922(n)), one count of being a fugitive in possession of a firearm (18 U.S.C. § 922(g)(2)), and one count of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)). (Id.)United States v. Christy, No. 3:18-CR-223, 2020 WL 4032141, at *1 (M.D. Pa. July 16, 2020).
Christy is currently housed at the United States Penitentiary, Marion, Illinois. From prison, Christy has continued to express his ire and vent his spleen towards others who displease him, using this lawsuit as a vehicle for his rage.
Christy's complaint demands a great deal from the reader since it often substitutes blind invective for reasoned analysis. However, liberally construed, it appears that Christy purports to bring a malicious prosecution claim on behalf of himself and two other persons, Craig and Mary Christy. (Doc. 1). Christy then sues the former President, Donald Trump, the former United States Attorney, an FBI agent, a deputy U.S. Marshal, a Pennsylvania State Trooper, prison staff at the Marion Penitentiary, and Kirtjen Nielsen, the former Secretary of Homeland Security. (Id.)
For example, Christy names Donald Trump as a defendant but only provides the following profane narrative describing this defendant's role: “He was the f***ing president, CEO of da U$.” (Doc. 1, at 2).
The factual basis for Christy's malicious prosecution claims against this diverse array of defendants remains entirely obscure but one stubborn fact is clear: Christy has not received a favorable termination of this criminal case. Quite the contrary, his convictions on these multiple felony counts involving a host of criminal acts are completely undisturbed. Notwithstanding the fact that Christy is undeniably convicted of these crimes, he persists in bringing a claim of malicious prosecution and seeks sweeping relief, including $750,000,000 in compensatory and punitive damages, dismissal of this criminal cases, and “transportation to Russia provided pending release.” (Id., at 6).
Christy has moved for leave to proceed in forma pauperis. For the reasons set forth below, we will conditionally GRANT Christy leave to proceed in this fashion, but for the reasons set forth below, we recommend that the complaint be dismissed.
II. Discussion
A. Screening Review of Pro Se Petitions - Standard of Review
This court has an on-going statutory obligation to conduct a preliminary review of pro se complaints brought by plaintiffs given leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B)(ii). Specifically, we are obliged to review the complaint to determine whether any claims are frivolous, malicious, or fail to state a claim upon which relief may be granted. This statutory text mirrors the language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
With respect to this benchmark standard for the legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)], and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, __ U.S.__, 129 S.Ct. 1937 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a plaintiff must provide some factual grounds for relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do.” Id., at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 679. According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id., at 678. Rather, in conducting a review of the adequacy of a complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id., at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions; it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to “show” such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal.
The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, [ ] “stops short of the line between possibility and plausibility of ‘entitlement of relief.' ”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied, 132 S.Ct. 1861 (2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 1950. Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1950).
In addition to these pleading rules, a civil complaint must comply with the requirements of Rule 8(a) of the Federal Rule of Civil Procedure, which defines what a complaint should say and provides that:
(a) A pleading that states a claim for relief must contain (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.Fed. R. Civ. P. 8.
Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se plaintiff's complaint must recite factual allegations that are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of action.
Judged against these legal guideposts, for the reasons set forth below it is recommended that this complaint be dismissed.
B. Christy's Complaint Fails on Multiple Scores.
In its current form, this complaint fails as a matter of law for multiple reasons. Liberally construed, the complaint seems to advance a malicious prosecution claim on behalf of the plaintiff and others, against persons who played no direct role in this prosecution, notwithstanding the fact that Christy stands convicted at trial of these offenses.
This he may not do. Indeed, Christy's complaint runs afoul of a series of insurmountable legal obstacles. At the outset, dismissal of this complaint is warranted because this pleading fails to comply with Rule 8's basic injunction that “A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). It is well-settled that: “[t]he Federal Rules of Civil Procedure require that a complaint contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' Fed.R.Civ.P. 8(a)(2), and that each averment be ‘concise, and direct,' Fed.R.Civ.P. 8(e)(1).” Scibelli v. Lebanon County, 219 Fed.Appx. 221, 222 (3d Cir. 2007). Thus, when a complaint is “illegible or incomprehensible[,]” id., or when a complaint “is not only of an unwieldy length, but it is also largely unintelligible[,]” Stephanatos v. Cohen, 236 Fed.Appx. 785, 787 (3d Cir. 2007), an order dismissing a complaint under Rule 8 is clearly appropriate. See, e.g., Mincy v. Klem, 303 Fed.Appx. 106 (3d Cir. 2008); Rhett v. New Jersey State Superior Court, 260 Fed.Appx. 513 (3d Cir. 2008); Stephanatos, 236 Fed.Appx. 785; Scibelli, 219 Fed.Appx. 221; Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 450 n.1 (5th Cir. 2005).
Dismissal under Rule 8 is also proper when a complaint “left the defendants having to guess what of the many things discussed constituted [a cause of action],” Binsack v. Lackawanna County Prison, 438 Fed.Appx. 158 (3d Cir. 2011), or when the complaint is so “rambling and unclear” as to defy response. Tillio v. Spiess, 441 Fed.Appx. 109 (3d Cir. 2011). Similarly, dismissal is appropriate in “those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Tillio v. Spiess, 441 Fed.Appx. 109, 110 (3d Cir. 2011) (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (quotations omitted)); Tillio v. Northland Grp. Inc., 456 Fed.Appx. 78, 79 (3d Cir. 2012). Further, a complaint may be dismissed under Rule 8 when the pleading is simply illegible and cannot be understood. See, e.g., Moss v. United States, 329 Fed.Appx. 335 (3d Cir. 2009) (dismissing illegible complaint); Radin v. Jersey City Medical Center, 375 Fed.Appx. 205 (3d Cir. 2010); Earnest v. Ling, 140 Fed.Appx. 431 (3d Cir. 2005) (dismissing complaint where “complaint fails to clearly identify which parties [the plaintiff] seeks to sue”); Oneal v. U.S. Fed. Prob., Civ. No. 05-5509, 2006 WL 758301 (D.N.J. Mar. 22, 2006) (dismissing complaint consisting of approximately 50 pages of mostly-illegible handwriting); Gearhart v. City of Philadelphia Police, Civ. No. 06-0130, 2006 WL 446071 (E.D. Pa. Feb. 21, 2006) (dismissing illegible complaint).
Judged by these standards, Christy's unintelligible, but occasionally profane, diatribe simply does not satisfy the requirements of Rule 8. Given the fact that the complaint consists of little more than inarticulate rage, this pleading would leave “the defendants having to guess what of the many things discussed constituted [a cause of action],” Binsack, 438 Fed.Appx. at 158, and is so “rambling and unclear” as to defy response. Tillio, 441 Fed.Appx. at 109. In such circumstances, Rule 8 commands the dismissal of the complaint.
Further, Mr. Christy as a pro se plaintiff is specifically forbidden from representing other pro se parties, as he apparently endeavors to do in this case. Instead, Christy is only authorized to represent his own interests in this case and is not empowered to “represent” the interests of other unrepresented parties. This rule is, first, prescribed by statute: “In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.” 28 U.S.C. § 1654 (emphasis added). In keeping with this statutory language, the Third Circuit Court of Appeals has instructed that “a nonlawyer appearing pro se [is] not entitled to play the role of attorney for other pro se parties in federal court.” Osei-Afriyie by Osei-Afriyie v. Med. Coll. of Pennsylvania, 937 F.2d 876, 882 (3d Cir. 1991) (holding father not authorized to represent the legal interests of his children in federal court, and vacating judgment that had been entered against unrepresented children); see also Lutz v. Lavelle, 809 F.Supp. 323, 325 (M.D. Pa. 1991). Therefore, Christy's apparent assertion that he is acting on behalf of himself and other unrepresented parties must be rejected by this court. See Liptok v. Bank of Am., No. 3:15-CV-156, 2016 WL 6818362, at *7 (M.D. Pa. Oct. 20, 2016), report and recommendation adopted, No. 3:15CV156, 2016 WL 6780757 (M.D. Pa. Nov. 16, 2016), afPd, 773 Fed.Appx. 97 (3d Cir. 2019).
Christy's claims against the former President, Secretary of Homeland Security, and United States Attorney, all of whom appear to be sued in their supervisory capacities without any well-pleaded factual averments tying them to specific acts of wrongdoing, are also legally infirm. Rather, it is clear that a claim of a constitutional deprivation cannot be premised merely on the fact that the named defendants were supervisory officials when the incidents set forth in the complaint occurred. Quite the contrary, to state a constitutional tort claim the plaintiff must show that the supervisory defendants actively deprived him of a right secured by the Constitution. Morse v. Lower Merion School Dist., 132 F.3d 902 (3d Cir. 1997); see also Maine v.Thiboutot, 448 U.S. 1 (1980). Constitutional tort liability is personal in nature and can only follow personal involvement in the alleged wrongful conduct shown through specific allegations of personal direction or of actual knowledge and acquiescence in the challenged practice. Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997). In particular, with respect to prison supervisors it is well-established that: “A[n individual government] defendant in a civil rights action must have personal involvement in the alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat superior. Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).
As the Supreme Court has observed:
Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. . . . See Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (finding no vicarious liability for a municipal “person” under 42 U.S.C. § 1983); see also Dunlop v. Munroe, 7 Cranch 242, 269, 3 L.Ed. 329 (1812) (a federal official's liability “will only result from his own neglect in not properly superintending the discharge” of his subordinates' duties); Robertson v. Sichel, 127 U.S. 507, 515-516, 8 S.Ct. 1286, 3 L.Ed. 203 (1888) (“A public officer or agent is not responsible for the misfeasances or position wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties”). Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Governmentofficial defendant, through the official's own individual actions, has violated the Constitution.Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Applying these benchmarks, courts have frequently held that, in the absence of evidence of supervisory knowledge and approval of subordinates' actions, a plaintiff may not maintain an action against supervisors based upon the misdeeds of their subordinates. O'Connell v. Sobina, No. 06-238, 2008 WL 144199, * 21 (W.D. Pa. Jan. 11, 2008); Neuburger v. Thompson, 305 F.Supp.2d 521, 535 (W.D. Pa. 2004). Rather, “[p]ersonal involvement must be alleged and is only present where the supervisor directed the actions of supervisees or actually knew of the actions and acquiesced in them.” Jetter v. Beard, 183 Fed.Appx. 178, 181 (3d Cir. 2006) (emphasis added).
Here, in many instances Christy does little more than name a supervisory official in the caption of the case, and then seek to hold that official personally liable based upon the official's supervisory status without making any specific factual allegations about these defendants in the body of this pleading. To the extent that the plaintiff simply premises the liability of these defendants upon their supervisory status without setting forth any further factual basis for a claim in the body of this pleading, this cursory style of pleading is plainly inadequate to state a claim against a prison supervisor and compels dismissal of these defendants. See Hudson v. City of McKeesport, 244 Fed.Appx. 519 (3d Cir. 2007) (affirming dismissal of defendant who was only named in caption of case).
In addition, this complaint fails because it rests on a fatally flawed legal premise. At bottom, Christy seeks to bring a civil rights action premised on claims of false arrest and imprisonment based upon a valid criminal conviction which has not otherwise been set aside or overturned.
This he cannot do. Quite the contrary, it is well settled that an essential element of a civil rights false arrest or imprisonment claim is that the underlying criminal case must have been terminated in favor of the civil rights claimant. Therefore, where, as here, the civil rights plaintiff brings a malicious prosecution, or false arrest claim based upon a state case that resulted in a conviction, the plaintiff's claim fails as a matter of law. The Third Circuit has aptly observed in this regard:
The Supreme Court has Arepeatedly noted that 42 U.S.C. § 1983 creates a species of tort liability.” Heck v. Humphrey, 512 U.S. 477, 483(1994) (quoting Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305(1986) (internal quotation marks omitted)). Given this close relation between' 1983 and tort liability, the Supreme Court has said that the common law of torts, Adefining the elements of damages and the prerequisites for their recovery, provide[s] the appropriate starting point for inquiry under' 1983 as well.” Heck, 512 U.S. at 483(quoting Carey v. Piphus, 435 U.S. 247, 257-58,(1978)). The Supreme Court applied this rule in Heck to an inmate's' 1983 suit, which alleged that county prosecutors and a state police officer destroyed evidence, used an unlawful voice identification procedure, and engaged in other misconduct. In deciding whether the inmate could state a claim for those alleged violations, the Supreme Court asked what common-law cause of action was the closest to the inmate's claim and concluded that Amalicious prosecution provides the
closest analogy ... because unlike the related cause of action for false arrest or imprisonment, it permits damages for confinement imposed pursuant to legal process.@ Heck, 512 U.S. at 484. Looking to the elements of malicious prosecution, the Court held that the inmate's claim could not proceed because one requirement of malicious prosecution is that the prior criminal proceedings must have terminated in the plaintiffs favor, and the inmate in Heck had not successfully challenged his criminal conviction. Id.Hector v. Watt, 235 F.3d 154, 155-156 (3d Cir. 2000).
In this case it is evident from Christy's complaint that his prior criminal prosecution did not terminate favorably for him, since he was convicted in this case and is serving a sentence as a result of this conviction. Since “one requirement of malicious prosecution is that the prior criminal proceedings must have terminated in the plaintiff's favor,” id., the immutable fact of Christy's conviction presently defeats any federal civil rights claims based upon false arrest or malicious prosecution and compels dismissal of these claims. In short, this complaint is based upon the fundamentally flawed legal premise that Christy can sue various officials for false arrest and imprisonment even though he stands convicted of the crimes charged against him. Since this premise is simply incorrect, this complaint fails as a matter of law.
Further, we note that the court should also strike Christy's claims for $750,000,000 in unliquidated damages from this pro se complaint. In this regard, Rule 12(f) of the Federal Rules of Civil Procedure imposes a duty on the court to review pleadings and provides that the court may upon its own initiative at any time order stricken from any pleading any immaterial matter. Fed.R.Civ.P. 12(f). Decisions regarding whether claims may be stricken from a complaint are properly presented to a United States Magistrate Judge for determination in the first instance. Singh v. Superintending School Committee of the City of Portland, 593 F.Supp. 1315 (D. Me. 1984).
In this case, the plaintiff's various claims for specified amounts of unliquidated damages violate Local Rule 8.1 which provides, in part, that:
The demand for judgment required in any pleading in any civil action pursuant to Fed.R.Civ.P.8(a)(3) may set forth generally that the party claiming damages is entitled to monetary relief but shall not claim any specific sum where unliquidated damages are involved. The short plain statement of jurisdiction, required by Fed.R.Civ.P.8(a)(1), shall set forth any amounts needed to invoke the jurisdiction of the court but no other.
Local Rule 8.1 (emphasis added).
Since this prayer for relief violates Local Rule 8.1 by specifying particular amounts of unliquidated damages, these specific dollar claims should be stricken from the complaint without prejudice to the plaintiffs arguing in any subsequent trial or hearing on the merits for any appropriate amount of damages supported by the evidence.
Having conducted this screening analysis and determined that the complaint is wanting in a number of respects, we recognize that in civil rights cases pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed in its entirety, see Fletcher-Hardee Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir.2007), unless granting further leave to amend would be futile or result in undue delay. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.2004). In this case, however, we find that the flaws in Christy's complaint are so profound that no form of more artful pleading could cure these defects. Having made this finding, we conclude that granting further leave to amend would be futile and recommend that this case be dismissed with prejudice.
III. Recommendation
Accordingly, for the foregoing reasons, the plaintiff is conditionally GRANTED leave to proceed in forma pauperis but IT IS RECOMMENDED that the plaintiff's complaint be dismissed.
The plaintiff is 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.