Opinion
Civ. 1:22-CV-1118
09-07-2022
WILLIAM CUMMINGS, Plaintiff, v. R. KRAMER, et al., Defendants.
Mannion, Judge.
REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge
I. Factual Background
This pro se prisoner lawsuit filed by William Cummings comes before us for consideration of a motion to dismiss filed by the defendants. (Doc. 6). Cummings' three-page complaint, which was removed from state court, demands a great deal from the reader. While the substance of this complaint is occasionally opaque, its scope is sweeping. Cummings' complaint names approximately eleven individual defendants along with 100 John Doe defendants. (Doc. 1-1, ¶ 4).
The complaint then alleges that, in March 2022, the defendants were aware of the presence of black mold in C-block at the prison but failed to have the mold removed. (Id., ¶¶ 6-7). Notably, while Cummings complains generally about the brief presence of this mold, with respect to this allegation his complaint does not allege that he suffered any form of injury as a result of his alleged exposure to this mold. Cummings then provides a more specific allegation of harm from the presence of mold, an allegation that names a specific defendant and describes a particular event. According to Cummings, one defendant, Defendant Lawton, gave him a moldy mattress on March 25, 2022, and refused to provide him with adequate bedding after he complained. (Id., ¶ 8). Cummings alleges that he directly suffered physical harm from this incident, stating that he got sick and vomited as a result of this mold exposure. (Id., ¶ 9).
The complaint then catalogues an extensive array of verbal interactions between Cummings and the defendants, stretching back to 2018, in which Cummings alleges that various staff harassed, insulted, and threatened him. (Id., ¶ 11). Finally, Cummings advances what we construe as a property confiscation claim, asserting that he is being improperly billed $17.00 per month for cable television service by the defendants. (Id., ¶ 12).
On the basis of these allegations, Cummings alleges that the defendants violated his constitutional rights under the First, Eighth and Fourteenth Amendments to the United States Constitution. (Id., at 3). As a result of these constitutional infractions, Cummings seeks compensatory and punitive damages, cable television fee rebates from 2007 to the present, along with injunctive, mandamus and declaratory relief. (Id.)
Presented with this challenging pro se pleading, the defendants have moved to dismiss this complaint arguing that Cummings' averments fail to state a claim upon which relief may be granted. (Doc. 6). This motion is fully briefed and is, therefore, ripe for resolution. (Docs. 7 and 8).
For the reasons set forth below it is recommended that this motion be granted, in part, and denied, in part.
II. Discussion
A. Motion to Dismiss - Standard of Review
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails 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, BU.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 considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider “undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that “[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment”). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
B. With One Exception, Cummings' Claims Fail, as Currently Pleaded.
In its current form, Cummings' complaint is flawed in a number of respects. First, in our view, Cummings has not sufficiently alleged personal involvement in constitutional torts by the 111 defendants, named and unnamed, who are listed in his complaint. Indeed, with one exception, Cummings' complaint fails to allege well-pleaded facts relating to any of these defendants.
More is needed here. A claim of a constitutional deprivation cannot be premised merely on the fact that the named defendants were prison 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 individual 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).
Here, in many instances, with respect to the more than one hundred defendants listed in the complaint, Cummings has simply named prison officials in the introduction to this amended complaint without making any specific factual allegations about these defendants in the body of this pleading. This cursory style of pleading is plainly inadequate to state a claim and compels dismissal of these defendants. Hudson v. City of McKeesport, 244 F. Appx 519 (3d Cir. 2007) (affirming dismissal of defendant who was only named in caption of case).
Second, to the extent that the complaint seeks to bring claims of harassment dating back to 2018, or demands cable television service rebates extending back to 2007, these allegations are time-barred.
It is well-settled that claims brought pursuant to 42 U.S.C. § 1983 are subject to the state statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266-67 (1985). In Pennsylvania, the statute of limitations for a personal injury action is two years. 42 Pa. Cons. Stat.' 5524. A cause of action accrues for statute of limitations purposes when the plaintiff knows or has reason to know of the injury that constitutes the basis of the cause of action. Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998); see also, Nelson v. County of Allegheny, 60 F.3d 1010 (3d Cir. 1995).
While this two-year limitations period may be extended based upon a continuing wrong theory, a plaintiff must make an exacting showing to avail himself of this grounds for tolling the statute of limitations. For example, it is well settled that the Acontinuing conduct of [a] defendant will not stop the ticking of the limitations clock [once] plaintiff obtained requisite information [to state a cause of action]. On discovering an injury and its cause, a claimant must choose to sue or forego that remedy.” Barnes v. American Tobacco Co., 161 F.3d 127, 154 (3d Cir. 1998) (quoting Kichline v. Consolidated Rail Corp., 800 F.2d 356, 360 (3d Cir. 1986)). See also Lake v. Arnold, 232 F.3d 360, 266-68 (3d Cir. 2000). Instead,
The continuing violations doctrine is an Aequitable exception to the timely filing requirement.” West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir.1995). Thus, Awhen a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred.” Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1295 (3d Cir.1991).In order to benefit from the doctrine, a plaintiff must establish that the defendant's conduct is Amore than the occurrence of isolated or sporadic acts.” West, 45 F.3d at 755 (quotation omitted). Regarding this inquiry, we have recognized that courts should consider at least three factors: (1) subject matter-whether the violations constitute the same type of discrimination, tending to connect them in a continuing violation; (2) frequency-whether the acts are recurring or more in the nature of isolated incidents; and (3) degree of permanence-whether the act had a degree of permanence which should trigger the plaintiff's awareness of and duty to assert his/her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate. See id. at 755 n. 9 (citing Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971, 981 (5th Cir.1983)). The consideration of Adegree of permanence” is the most important of the factors. See Berry, 715 F.2d at 981.Cowell v. Palmer Township. 263 F.3d 286, 292 (3d Cir. 2001).
In the instant case, Cummings endeavors to bring claims spanning from 2007 to the present. Yet, the recitals in his complaint make it clear that, for Cummings, these matters all had the degree of permanence which would have immediately put him on notice of the need to assert his rights. Despite this fact, in many instances Cummings delayed a decade or more before lodging his complaint. Therefore, on the face of the complaint, all allegations that pre-date 2020 are barred by the applicable two-year statute of limitations and should be dismissed.
Further, many of Cummings' substantive Eighth Amendment claims are also legally deficient. As we construe it, in its current form Cummings' complaint sets forth two series of Eighth Amendment claims. First, Cummings details incidents of alleged verbal harassment by correctional staff. In addition, according to Cummings, he was exposed to black mold for a period of approximately one month in March of 2022 and was provided moldy bedding by one specific defendant, Defendant Lawton, on March 25, 2022.
At the outset, the plaintiff may not premise a constitutional claim on alleged verbal harassment, as he apparently attempts to do at times in this complaint. These verbal harassment allegations fail because A[i]t is well settled that verbal harassment of a prisoner, although deplorable, does not violate the Eighth Amendment.” Robinson v. Taylor, 204 Fed.Appx. 155, 156 (3d Cir. 2006) (citing McBride v. Deer, 240 F.3d 1287, 1291 n. 3 (10th Cir. 2001)); DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000); Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir.1997) (rejecting the Eighth Amendment claim of a prisoner who alleged that he Awas verbally harassed, touched, and pressed against without his consent@ because A[n]o single incident that he described was severe enough to be Objectively, sufficiently serious'”). See, e.g., Rister v. Lamas, 4:CV-10-1574, 2011 WL 2471486 (M.D. Pa. June 21, 2011); Patterson v. Bradford, CIV. 10-5043 NLH, 2011 WL 1983357 (D.N.J. May 20, 2011); Williams v. Bradford, CIV. 10-5120 JBS, 2011 WL 1871437 (D.N.J. May 13, 2011); Ringgold v. Lamby, 565 F.Supp.2d 549, 553 (D. Del. 2008); Sharpe v. Costello, 1:06 CV 1493, 2007 WL 1098964 (M.D. Pa. Apr. 11, 2007).
Thus, to the extent that the plaintiff simply alleges that he was verbally harassed by staff, such conduct, “although deplorable, does not violate the Eighth Amendment.@ Robinson, 204 Fed.Appx. at 156. Accordingly, these verbal harassment allegations fail to state a constitutional claim and should be dismissed. Mimms v. U.N.I.C.O.R., 386 Fed.Appx. 32, 35 (3d Cir. 2010) (verbal harassment of a prisoner, without more, does not violate the Eighth Amendment); Lindsey v. O'Connor, 327 Fed.Appx. 319, 321 (3d Cir. 2009) (verbal harassment of a prisoner, although distasteful, does not violate the Eighth Amendment).
Cummings' conditions of confinement claim relating to the alleged presence of mold in the prison is also judged against exacting legal benchmarks. As we have noted, a prisoner making such a claim:
[F]aces an exacting burden in advancing this Eighth Amendment claim against prison officials in their individual capacities. To sustain such a claim, [the inmate] must:
[M]eet two requirements: (1) “the deprivation alleged must be, objectively, sufficiently serious;” and (2) the “prison official must have a sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct.1970, 128 L.Ed.2d 811 (1994) (quotation marks and citations omitted). In prison conditions cases, “that state of mind is one of ‘deliberate indifference' to inmate health or safety.” Id. “Deliberate indifference” is a subjective standard under Farmer-the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety.Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir.2001). Beers-Capitol v. Whetzel, is [the] leading case in the Third Circuit addressing deliberate indifference in a prison conditions, and we believe that the legal guidance set forth in that decision, as applied to the facts of that case, is ultimately dispositive as to the claims in this action.
As a starting place, the Third Circuit has explained the basic requirements of a claim brought against a prison official under the Eighth Amendment as follows:
An Eighth Amendment claim against a prison official must meet two requirements: (1) “the deprivation alleged must be, objectively, sufficiently serious;” and (2) the “prison official must have a sufficiently culpable state of mind.”Id. at 125 (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). Furthermore, in cases involving prison safety or prison conditions, the relevant state of mind “is one of ‘deliberate indifference' to inmate health or safety.” Id. As discussed more fully below, this deliberate indifference standard “is a subjective standard under Farmer-the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety.” Id. Quarles v. Palakovich, 736 F.Supp.2d 941, 947 (M.D. Pa. 2010).
Moreover, in the specific context of inmate claims stemming from the alleged presence of black mold in the prison, it has been held that: “Without any allegation as to suffering actual physical harm from the mold, which is required to state his federal claim, [an inmate] Plaintiff's conditions of confinement claim regarding the black mold . . . lacks constitutional muster.” Hall-Wadley v. Maint. Dep't, 386 F.Supp.3d 512, 519 (E.D. Pa. 2019). Thus, absent specific allegations of physical harm, “the mere presence of mold does not indicate an objectively serious deprivation.” Johnson v. Beard, No. 3:CV-09-886, 2014 WL 4793905, at *6 (M.D. Pa. Sept. 25, 2014) (citing Peterkin v. Jeffes, 661 F.Supp. 895, 915 (E.D.Pa.1987)) (only mold which poses a real health hazard is actionable). Accordingly:
It has been similarly held that the presence of black mold in a prison shower did not to rise to a constitutional violation where the inmate plaintiff has not presented any facts alleging a substantial risk of harm. Nickles v. Taylor, 2010 WL 1949447 * 5 (D.N.J. May 14, 2010). A perceived risk of future medical issues about mold exposure is likewise insufficient. See McIntyre v. Phillips, 2007 WL 2986470 *2-3 (W.D.Mich. Sept.10, 2007).Id. at 6-7.
Judged by these legal guideposts, Cummings' general allegations that he was briefly exposed to mold while housed on C-block fail as a matter of law. However, with respect to his specific allegation that Defendant Lawton gave him a moldy mattress on March 25, 2022 and refused to provide him with adequate bedding after he complained, resulting in Cummings becoming sick and vomiting, with our assessment confined to the well-pleaded facts set forth in the complaint, we find that Cummings has stated a colorable claim. Therefore, this particular claim is not subject to dismissal and should proceed forward.
Finally, as for Cummings' claims that he has been overbilled for cable television services, liberally construed, this claim seems to allege a wrongful taking of inmate property by correctional officials. On this score, it is well-settled that inmate due process claims arising out of:
[T]he confiscation of property are judged against settled legal standards, standards which recognize that:
Like other constitutional rights, the Due Process rights of prisoners may be accommodated to a prison's legitimate security needs. See Bell v. Wolfish, 441 U.S. 520, 558-60, 99 S.Ct. 1861,60 L.Ed.2d 447 (1979). “[A]n unauthorized intentional deprivation of property” by prison officials does not violate the Due Process Clause “if a meaningful post-deprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (citing Parratt v. Taylor, 451 U.S. 527,
101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)). Pre-deprivation notice is not constitutionally required. See id. Monroe v. Beard, 536 F.3d 198, 210 (3d Cir. 2008) (“Because prisons are constitutionally required to afford inmates only a post-deprivation remedy, we agree that the defendants' failure to give the inmates prior notice of their intended seizure of their material notice did not violate the plaintiffs' Due Process right”); Picarella v. Brouse, 2017 WL 818880, at *4 (M.D. Pa. Mar. 2, 2017) (“[T]he existence of this postdeprivation remedy forecloses any due process claim”). Thus, there are two crucial components to any inmate due process claim in this setting: (1) the confiscation of property; and (2) an allegation that property was taken and the prisoner was afforded no post-deprivation administrative remedy.El-Amin v. Brown, No. 3:19-CV-01335, 2019 WL 9406500, at *7 (M.D. Pa. Oct. 22, 2019), report and recommendation adopted, No. CV 3:19-1335, 2020 WL 1888862 (M.D. Pa. Apr. 16, 2020). In this case, as we construe it, Cummings' complaint alleges that he was provided a post-deprivation remedy with respect to these cable TV billing concerns in the form of various grievances. While these grievances have apparently been unavailing, that does not alter the fact that Cummings' has been provided a post-deprivation remedy, which is all that the constitution requires in this setting. Therefore, this claim also fails as a matter of law and should be dismissed.
In sum, in its current form, with the exception of the Eighth Amendment claim levelled against Defendant Lawton, this complaint fails to state a claim upon which relief may be granted. Yet, while this merits analysis calls for dismissal of this action, we recommend that the plaintiff be given another, final, opportunity to further litigate this matter by endeavoring to promptly file an amended complaint. We recommend this course mindful of the fact 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 is not necessary in a case such as this where amendment would be futile or result in undue delay. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the Defendants' motion to dismiss, (Doc. 6), be GRANTED, in part, and DENIED in part, as follows: with the exception of the Eighth Amendment claim levelled against Defendant Lawton, the plaintiff's complaint be dismissed without prejudice to affording the plaintiff one final opportunity to file a pleading which states a claim upon which relief may be granted.
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.