Opinion
CIVIL 3:18-CV-2254
06-13-2023
JUAN GONZALEZ, Plaintiff, v. JOHN DOE #1, et al., Defendants.
Mariani, Judge.
REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge.
I. Introduction
This is a civil rights case filed by the plaintiff, Juan Gonzalez, against several Pennsylvania State Policemen and several agents of the United States Department of Homeland Security, Immigrations and Customs Enforcement (“ICE”). The plaintiff asserts his claims pursuant to 42 U.S.C. § 1983, alleging violations of his Fourth and Fourteenth Amendment rights by these federal and state officials, arising out of a July 13, 2018 law enforcement encounter.
We are now called upon to consider a second motion for summary judgment filed by the three ICE agents identified as defendants in this lawsuit—Defendants Clark, Carlo, and Wiss. (Doc. 85). In considering this motion we do not write upon a blank slate. Quite the contrary, we previously considered the alleged involvement of ICE agents in Gonzalez's arrest in the context of a motion to dismiss, or in the alternative for summary judgment, filed by the federal defendants. Upon our prior consideration of Gonzalez's claims against these federal defendants all claims against ICE were dismissed, the due process claims against Defendants Clark, Carlo and Wiss, were dismissed, and consideration of the Bivens Fourth Amendment claims against these individual defendants was deferred pending the development of a full factual record on summary judgment. (Doc. 70).
The federal defendants have now filed a motion for summary judgment in this case. (Doc. 85). This motion is fully briefed and is ripe for resolution. For the following reasons, we recommend that the court grant the federal defendants' motion.
II. Factual Background and Procedural History
The plaintiff's civil rights claims arise out of a July 13, 2018 incident involving two Pennsylvania State Troopers and three ICE agents. With respect to the federal defendants' alleged involvement in this law enforcement encounter, we are presented with two competing factual narratives and a supervening United States Supreme Court case which in our judgment controls the outcome of this case as a legal matter.
Turning first to the contrasting factual narratives, from the defense perspective both the State Police troopers and the ICE agents involved in this investigation agree that Gonzalez's detention arose out of a state criminal investigation into drug trafficking in Hazleton, Pennsylvania. (Doc. 86). According to the defendants as part of this state criminal investigation, the ICE agents were contacted solely for the purpose of ascertaining Gonzalez's immigration status. (Id.) The state police confronted, subdued, and detained Gonzalez outside his home on July 13, 2018. (Id.) The defendants all agree that ICE agents were not present at the time of the arrest, did not direct the arrest, and played no role in the arrest. (Id.) Rather, the ICE agents arrived after Gonzalez had been detained, accompanied the state police and Gonzalez to the state police barracks, and then determined based upon a fingerprint comparison that Gonzalez was not a deportable alien. (Id.)
For his part, Gonzalez disputes some aspects of the defense narrative. While Gonzalez seemingly acknowledges that the state police physically restrained him on July 13, 2018, he asserts that they were accompanied by ICE agents who directed them to physically restrain and injure the plaintiff. (Doc. 93-1). On the basis of this contention that the state police restrained him at the direction of ICE agents—a contention that every law enforcement agent involved in this matter insists is incorrect—Gonzalez seeks to hold the individual federal defendants personally liable for Fourth Amendment false arrest and excessive force claims.
While in many instances these competing factual narratives would preclude a summary judgment disposition of this case, there has been a supervening change in the law which in our view renders these factual disputes largely meaningless. Following the district court's latest ruling in this case, the United States Supreme Court considered the issue of whether there was an implied Fourth Amendment constitutional tort remedy under Bivens and its progeny for Fourth Amendment claims arising in the context of immigration enforcement. In Egbert v. Boule, 213 L.Ed.2d 54, 142 S.Ct. 1793 (2022), the Supreme Court followed its recent line of authority which recognizes that implying a cause of action under Bivens is “a disfavored judicial activity,” and held that a Fourth Amendment excessive force claim would not lie against federal agents in this immigration enforcement context. Id. at 1803-04.
Relying upon Egbert, the defendants have now moved for summary judgment on the Fourth Amendment Bivens claim lodged against ICE agents Clark, Carlo and Wiss. (Doc. 85). This motion is fully briefed and is, therefore, ripe for resolution. Upon consideration we agree that Egbert now forbids implying a Fourth Amendment Bivens constitutional tort claim against ICE agents for their alleged roles in detaining a person as part of their duty to enforce this nation's immigration laws. Therefore, we recommend that this motion for summary judgment be granted.
III. Discussion
A. Motion for Summary Judgment - Standard of Review
The federal defendants have 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. 56(a). Through summary adjudication, a court is empowered to dispose of those claims that do not present a “genuine dispute as to any material fact,” Fed.R.Civ.P. 56(a), and for which a trial would be “an empty and unnecessary formality.” Univac Dental Co. v. Dentsply Int'l, Inc., 702 F.Supp.2d 465, 468 (M.D. Pa. 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 non-moving 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 non-moving 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 non-moving 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).
Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 Fed.Appx. 896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial.” Fireman's Ins. Co. of Newark New Jersey v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Finally, it is emphatically not the province of the court to weigh evidence or assess credibility when passing upon a motion for summary judgment. Rather, in adjudicating the motion, the court must view the evidence presented in the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true. Id. Additionally, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third Circuit has instructed that:
To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In practical terms, if the opponent has exceeded the “mere scintilla” threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. It thus remains the province of the fact finder to ascertain the believability and weight of the evidence.Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted); NAACP v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011).
B. Emerging Principles Governing Bivens Fourth Amendment Claims in the Immigration Context.
As we consider Gonzalez's Fourth Amendment Bivens constitutional tort claims against these immigration agents, we must also acknowledge that during the pendency of this litigation there has been a fundamental paradigm shift in this legal field, and implying Bivens causes of action is now a disfavored judicial activity. From its inception Bivens constituted a narrowly defined, judicially crafted remedy for constitutional torts brought against federal defendants. However, as the Supreme Court has observed:
[T]he Court has made clear that expanding the Bivens remedy is now a “disfavored” judicial activity. Iqbal, 556 U.S., at 675, 129 S.Ct. 1937. This is in accord with the Court's observation that it has “consistently refused to extend Bivens to any new context or new category of defendants.” Correctional Services Corp. v. Malesko, 534 U.S. 61, 68, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001).Ziglar v. Abbasi, 137 S.Ct. 1843, 1857, 198 L.Ed.2d 290 (2017).
Adopting this cautious approach to the expansion of the Bivens doctrine, we have been instructed that:
When a party seeks to assert an implied cause of action under the Constitution itself, just as when a party seeks to assert an implied cause of action under a federal statute, separation-of-powers principles are or should be central to the analysis. The question is “who should decide” whether to provide for a damages remedy, Congress or the courts? Bush, 462 U.S., at 380, 103 S.Ct. 2404.The answer most often will be Congress. When an issue “ ‘involves a host of considerations that must be weighed and appraised,' ” it should be committed to “ ‘those who write the laws' ” rather than “ ‘those who interpret them.' ” Ibid. (quoting United States v. Gilman, 347 U.S. 507, 512-513, 74 S.Ct. 695, 98 L.Ed. 898 (1954)). In most instances, the Court's precedents now instruct, the Legislature is in the better position to consider if “ ‘the public interest would be served' ” by imposing a “ ‘new substantive
legal liability.' ” Schweiker, supra, at 426-427, 108 S.Ct. 2460 (quoting Bush, supra, at 390, 103 S.Ct. 2404). As a result, the Court has urged “caution” before “extending Bivens remedies into any new context.” Malesko, supra, at 74, 122 S.Ct. 515.Id.
Thus, after Ziglar, in order for a court to apply Bivens, the court must first decide if the case presents a new context for Bivens cases. The Supreme Court stated the test to determine if a case presents a new context in which a Bivens remedy is available:
If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.Ziglar, 137 S.Ct. at 1159-60.
If the case presents a new Bivens context, the court must then determine whether any alternative remedies exist since “the existence of alternative remedies usually precludes a court from authorizing a Bivens action.” Id. at 1865. However, even absent an alternative remedy, if special factors exist which counsel hesitation in extending the Bivens remedy the court should decline to do so. Id. at 1859-60; see also Wilkie v. Robbins, 551 U.S. 537, 550 (2007); Bush v. Lucas, 462 U.S. 367, 378 (1983). In this regard, these:
[O]ther special factors that could be considered, includ[e]: the potential cost to the government of recognizing a private cause of action, both financially and administratively; whether the judiciary is well suited to weigh those costs; the necessity to deter future violations; whether Congress has already acted in that arena, suggesting it does not “want the Judiciary to interfere”; whether a claim addresses individual conduct or a broader policy question; whether litigation would intrude on the function of other branches of government; and whether national security is at stake.Bistrian v. Levi, 912 F.3d 79, 90 (3d Cir. 2018).
Ziglar was a fundamental shift in the analytical paradigm used to assess Bivens claims, a shift which disfavored the extension of Bivens into new or different arenas. Within the past year, the Supreme Court has underscored the limited and disfavored nature of Bivens remedies in a case involving a Fourth Amendment excessive force claim brought in the context of immigration law enforcement. In Egbert v. Boule, 213 L.Ed.2d 54, 142 S.Ct. 1793, 1803 (2022), the plaintiff brought a Fourth Amendment excessive force claim against a border patrol agent arising out of what was alleged to have been the use of undue force by that agent in the course of an immigration encounter.
Following Ziglar and its progeny, the Supreme Court refused to extend Bivens to this type of Fourth Amendment claim involving immigration agents. As the Court explained:
[W]e have emphasized that recognizing a cause of action under Bivens is “a disfavored judicial activity.” Ziglar, 582 U.S., at __, 137 S.Ct., at 1856-1857 (internal quotation marks omitted); Hernandez, 589 U.S., at __, 140 S.Ct., at 742-743 (internal quotation marks omitted). When asked to imply a Bivens action, “our watchword is caution.” Id., at __, 140 S.Ct., at 742. “[I]f there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy[,] the courts must refrain from creating [it].” Ziglar, 582 U.S., at __, 137 S.Ct., at 1858. “[E]ven a single sound reason to defer to Congress” is enough to require a court to refrain from creating such a remedy. Nestle USA, Inc. v. Doe, 593 U.S. __, __, 141 S.Ct. 1931, 1937, 210 L.Ed.2d 207 (2021) (plurality opinion). Put another way, “the most important question is who should decide whether to provide for a damages remedy, Congress or the courts?” Hernandez, 589 U.S., at __ __ __, 140 S.Ct., at 750 (internal quotation marks omitted). If there is a rational reason to think that the answer is “Congress”—as it will be in most every case, see Ziglar, 582 U.S., at __, 137 S.Ct., at 1857-1858—no Bivens action may lie. Our cases instruct that, absent utmost deference to Congress' preeminent authority in this area, the courts “arrogat[e] legislative power.” Hernandez, 589 U.S., at __, 140 S.Ct., at 741.
To inform a court's analysis of a proposed Bivens claim, our cases have framed the inquiry as proceeding in two steps. See Hernandez, 589 U.S., at __, 140 S.Ct., at 742-743. First, we ask whether the case presents “a new Bivens context”—i.e., is it “meaningfully]” different from the three cases in which the Court has implied a damages action. Ziglar, 582 U.S., at __, 137 S.Ct., at 1859-1860. Second, if a claim arises in a new context, a Bivens remedy is unavailable if there are “special factors” indicating that the Judiciary is at least arguably less equipped than Congress to “weigh the costs and benefits of allowing a damages action to proceed.” Ziglar, 582 U.S., at __, 137 S.Ct., at 1858
(internal quotation marks omitted). If there is even a single “reason to pause before applying Bivens in a new context,” a court may not recognize a Bivens remedy. Hernandez, 589 U.S., at __, 140 S.Ct., at 743.
While our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy. For example, we have explained that a new context arises when there are “potential special factors that previous Bivens cases did not consider.” Ziglar, 582 U.S., at __-, 137 S.Ct., at 1860. And we have identified several examples of new contexts—e.g., a case that involves a “new category of defendants,” Malesko, 534 U.S. at 68, 122 S.Ct. 515; see also Ziglar, 582 U.S., at __, 137 S.Ct., at 1876—largely because they represent situations in which a court is not undoubtedly better positioned than Congress to create a damages action. We have never offered an “exhaustive” accounting of such scenarios, however, because no court could forecast every factor that might “counse[l] hesitation.” Id., at __ __, 137 S.Ct., at 1880. Even in a particular case, a court likely cannot predict the “systemwide” consequences of recognizing a cause of action under Bivens. Ziglar, 582 U.S., at __, 137 S.Ct., at 1858. That uncertainty alone is a special factor that forecloses relief. See Hernandez v. Mesa, 885 F.3d 811, 818 (C.A.5 2018) (en banc) (“The newness of this ‘new context' should alone require dismissal”).
Finally, our cases hold that a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, “an alternative remedial structure.” Ziglar, 582 U.S., at __, 137 S.Ct., at 1858; see also Schweiker, 487 U.S. at 425, 108 S.Ct. 2460. If there are alternative remedial structures in place, “that alone,” like any special factor, is reason enough to “limit the power of the Judiciary to infer a new Bivens cause of action.” Ziglar, 582 U.S., at __, 137 S.Ct., at 1858. Importantly, the relevant question is not whether a Bivens action would “disrup[t]” a remedial scheme, Schweiker, 487 U.S. at 426, 108 S.Ct. 2460, or whether the court “should provide for a wrong that would otherwise go unredressed,” Bush, 462 U.S. at 388, 103 S.Ct. 2404. Nor does it matter that “existing remedies do not
provide complete relief.” Ibid. Rather, the court must ask only whether it, rather than the political branches, is better equipped to decide whether existing remedies “should be augmented by the creation of a new judicial remedy.” Ibid.; see also id., at 380, 103 S.Ct. 2404 (“the question [is] who should decide”).Egbert, 142 S.Ct. at 1803-04.
Adopting this analytical paradigm, the Court concluded that Bivens should not be extended to the new factual context of Fourth Amendment excessive force claims relating to immigration law enforcement. In reaching this result the Court emphasized that:
The Bivens inquiry does not invite federal courts to independently assess the costs and benefits of implying a cause of action. A court faces only one question: whether there is any rational reason (even one) to think that Congress is better suited to “weigh the costs and benefits of allowing a damages action to proceed.” Ziglar, 582 U.S., at __, 137 S.Ct., at 1858.Id. at 1805.
The Court also emphasized that when considering whether Congress and the Executive Branch have already provided alternate remedies to putative Bivens plaintiffs:
So long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy. That is true even if a court independently concludes that the Government's procedures are “not as effective as an individual damages remedy.” Bush, 462 U.S. at 372, 103 S.Ct. 2404.Id. at 1807.
Applying this analytical paradigm, the Court accepted in Egbert that implying a Bivens cause of action against immigration agents presented a “new context” where great caution should be exercised before inferring a civil cause of action. Id. at 1804. The Court then found that “special factors” relating to immigration enforcement as well as border and national security, weighed against implying a Bivens cause of action in this factual context. Id. at 1806-06. Finally, the Court held that other, alternate remedies existed for persons aggrieved by immigration agent actions, a factor “that independently foreclose[d] a Bivens action.” Id. at 1806.
C. The Defendants Are Entitled to Summary Judgment on this Bivens Claims
In our view, Egbert controls here and now compels the dismissal of the Fourth Amendment Bivens claim lodged against the ICE defendants. At the outset, applying the analytical approach prescribed by the Supreme Court in Ziglar, Egbert and its progeny, we find that constitutional tort claims against immigration agents present a new factual context, where we are instructed to proceed cautiously. In reaching this conclusion we join that rising tide of case law which has followed Egbert and have held that efforts to imply a Bivens claim related to immigration enforcement entail a “new context”. See e.g., Tun-Cos v. Perrotte, 922 F.3d 514, 524 (4th Cir. 2019); Barry v. Zamar, No. 19-10216 (EP) (LDW), 2022 WL 4774398, at *7 (D.N.J. Oct. 3, 2022); Laoye v. United States, No. CV145195GCDEA, 2023 WL 2263670, at *8 (D.N.J. Feb. 28, 2023); see also Xi v. Haugen, No. 21-2798, 2023 WL 3608347, at *6 (3d Cir. May 24, 2023).
We also find—as other courts have found—that the work of immigration agents, who conduct specialized enforcement duties under the Immigration and Nationality Act relating to both immigration enforcement and national security, entails a host of “special factors” which counsel strongly against any extension of Bivens. Id. Finally, we are constrained to note that Congress and the Executive Branch have created alternate avenues for pursuit of grievances against individual immigration officers, yet another factor which weighs against extending a Bivens remedy in this case. For example, Congress has created an Office of Inspector General (OIG), within DHS, 6 U.S.C. § 113(b), and authorized it to investigate abuses by federal officers and “report expeditiously” any “reasonable grounds to believe” that federal law has been violated. Further, through the Homeland Security Act of 2002, Congress separately established DHS's Office of Civil Rights and Civil Liberties (CRCL), 6 U.S.C. §§ 113(d)(3), and instructed the OIG to refer to it any “civil liberties matters” that OIG does not investigate. 5 U.S.C. app. 3 § 8I(f)(2)(G). Congress also established within ICE an Office of Professional Responsibility. 6 U.S.C. § 253. These offices not only have mechanisms through which the public can report misconduct by ICE agents, but they investigate “noncriminal allegations of misconduct.” see id. §§ 253-54. Thus, all of the Egbert factors counsel against extending a Bivens remedy to Fourth Amendment claims like those leveled here by Gonzalez against these immigration agent defendants.
In Egbert, the Supreme Court reiterated that “recognizing a cause of action under Bivens is ‘a disfavored judicial activity,' ” and distilled our analysis of new Bivens claims to consideration of a single question and answer, noting that:
“[T]he most important question is who should decide whether to provide for a damages remedy, Congress or the courts?” Hernandez, 589 U.S., at __, 140 S.Ct., at 750 (internal quotation marks omitted). If there is a rational reason to think that the answer is “Congress”—as it will be in most every case, see Ziglar, 582 U.S., at __, 137 S.Ct., at 1857-1858—no Bivens action may lie.Egbert, 142 S.Ct. at 1803.
Finding in the instant case the answer to this question is, “as it will be in most every case,” that the array of factors we must consider indicates that it should fall to Congress to determine whether damages remedies should lie against ICE agents when performing their duties, we should decline Gonzalez's invitation to imply a Bivens remedy against these defendants. Therefore, the federal defendants are entitled to summary judgment on Gonzalez's Bivens claims.
III. Recommendation
For the foregoing reasons, IT IS RECOMMENDED that the federal defendants' motion for summary judgment (Doc. 85), 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.