Opinion
Civil Action 3:20-cv-02023
12-17-2021
ROBERT EDWARD HENGST, JR. Plaintiff, v. PRIMECARE MEDICAL, INC., et al., Defendants.
BRANN, C.J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE
This is a federal civil rights action, brought by a state prisoner, Robert Edward Hengst, Jr., appearing through counsel, against the York County Prison Board, several correctional officers employed there, and a prison healthcare services provider. In 2018 and 2019, Hengst was a pretrial detainee incarcerated at York County Prison. While incarcerated there, he claims that the defendants were deliberately indifferent to his serious medical needs and subjected him to the excessive use of force, in violation of his Fourteenth Amendment due process rights, and that the defendants retaliated against him for voicing grievances against prison correctional and medical staff, in violation of his First Amendment speech and petition rights. For relief, the plaintiff seeks unspecified compensatory and punitive damages.
The complaint also references the plaintiff's rights under the Eighth Amendment, but as a pretrial detainee, his arise under the due process clause of the Fourteenth Amendment rather than the cruel and unusual punishment clause of the Eighth Amendment. See Boring v. Kozakiewicz, 833 F.2d 468, 471 (3d Cir. 1987) (“Pretrial detainees are not within the ambit of the Eighth Amendment but are entitled to the protections of the Due Process Clause.”).
The defendants have moved for summary judgment on the ground that Hengst failed to exhaust his available administrative remedies. (Doc. 21; Doc. 24.) These motions are fully briefed and ripe for decision.
One of these two motions is brought by defendant PrimeCare Medical, Inc. (“PrimeCare”). (Doc. 24.) The other is brought by the remaining defendants, who are jointly represented: York County Prison Board (the “County”) and correctional officers David Frey, Steve Bolding, Ronnie Belt, and Nathan Fitzkee (collectively, the “Correctional Officers”). (Doc. 21.)
I. Background
Following his arrest on October 31, 2018, Hengst was incarcerated as a pretrial detainee at York County Prison from November 1, 2018, through July 11, 2019, when he was transferred to the custody of the state department of corrections to serve his sentence of conviction.
Upon his arrival at York County Prison, medical staff conducted a medical intake procedure, in which Hengst disclosed that he was suffering from a toothache and an upper respiratory infection. When asked if he would like to receive alcohol detoxification medication, he replied “no.” On the evening of November 2, 2018, medical staff administered medication to Hengst, advising him that he was receiving amoxicillin, ibuprofen, and vitamin C. In addition, however, medical staff included detoxification medication without informing Hengst. Shortly after receiving these medications, as Hengst began to feel hot in the face and head, and then he lost consciousness, falling to the floor. The fall caused injuries to Hengst, including a broken ankle, torn ankle ligaments, damage to his shoulder, and cuts to his face. In addition, it caused his eyeglasses to break.
On November 3, 2018, Hengst was taken to an outside medical provider, Wellspan, for x-rays and medical treatment. Because his ankle was too swollen for a cast at the time, Hengst's ankle was instead placed in a splint for immobilization. He was returned to York County Prison with crutches and instructions to ice and elevate his broken ankle. Following his return, Hengst was placed in isolation, and medical staff allegedly failed to provide him with adequate pain medication.
On November 8, 2018, Hengst was taken to medical operations because his toes were turning black, and he was experiencing severe leg pain. He requested additional pain medication, a diagnosis of his black toes, and ice for the swelling. Medical staff denied his request for ice and told him there was nothing they could do about his black toes.
On November 10, 2018, Hengst requested an extra blanket to help him elevate his ankle as instructed, but his request was denied. On November 11, 2018, Hengst and his cellmate fashioned a makeshift sling to help him elevate his ankle while lying in his bunk. On November 12, 2018, Hengst awoke in severe pain as an unidentified correctional officer shook his injured foot and told him he could not have the sling.
On November 14, 2018, Hengst was suffering from severe pain and requested more pain medications, but his request was denied. He also requested ice for the swelling, but this request was also denied. Later that same day, Hengst was taken to Wellspan for x-rays and a cast, but because his ankle remained swollen, the physician refused to cast the ankle and placed another splint on it instead. The physician informed Hengst that he had a fractured ankle and torn ligaments. Without a cast, Hengst was unable to place any weight on that leg without extreme pain.
On November 15, 2018, Hengst's pain medications were increased, and he was finally given ice for the swelling. On November 16, 2018, Hengst requested an extra blanket once again to help him elevate the ankle, but that request was denied. Hengst also requested a two-piece jumpsuit and a shower chair due to his injury, but both requests were denied.
Hengst continued to experience severe pain despite the increased pain medication. On November 18, 2018, Hengst requested ice, but his request was denied. On November 19, 2018, Hengst fell while using his crutches when he traversed a recently mopped floor, and he was sent to medical operations due to increased foot pain and swelling. On November 20, 2018, Hengst requested ice again, and his request was denied again. He received no ice until his cast was finally applied on November 28, 2018.
On November 28, 2018, medical staff took Hengst's eyeglasses away to fix them. On November 29, 2018, while using crutches without the aid of his eyeglasses, Hengst fell again on a wet floor. On November 30, 2018, Hengst's eyeglasses were returned to him in the same broken condition as when they were taken from him.
On February 15, 2019, Hengst was denied mailing privileges based on an attempt to photocopy grievance forms and a list of potential witnesses and mail them to his attorney for a possible lawsuit.
On March 7, 2019, Hengst complained to medical staff about shoulder pain that originated when he passed out and fell on November 2, 2018, but his complaint was disregarded by medical staff as “an old injury.”
On April 18, 2019, while still injured and on crutches, Hengst was assaulted by another inmate named Shellers. Hengst suffered severely bruised ribs, a fractured jaw, and additional pain to his already injured ankle. On April 20, 2019, Hengst was seen by an outside medical provider for x-rays, and he was told that his jaw was broken in two places and his ribs were severely bruised but not broken.
On April 21, 2019, Hengst was called to the captain's office, where he was charged with misconduct for fighting. From the captain's office, Hengst was taken to a new cell, where he was stripped search. Hengst was placed against a wall and told to take off his boot brace and hand it to correctional officers, which he did. He was then told to take off his socks, which he did, but he dropped the sock to the floor. Hengst was told to pick up his sock and hand it back to the correctional officers without turning around. But when Hengst picked up the sock, he tossed it back to the correctional officers instead of handing it back. He was immediately slammed face-first against a brick wall by the back of his head, and the officer who slammed his face into the wall was aware of his fractured jaw and severely bruised ribs. While being slammed against the wall, Hengst heard the correctional officers say “quit resisting arrest” repeatedly, even though he was not resisting. Hengst was then forced out of the cell and placed in a restraining chair, where his clothing was cut off of his body until he was completely naked. Hengst was then examined by a nurse, who “wrote off” his complaints of injuries as “no new injuries.”
On April 23, 2019, Hengst was transported to an oral surgeon to have his jaw wired shut due to additional fractures caused by having his face slammed into a wall by correctional officers. As a result, he was placed on a completely liquid diet.
In the wee hours of April 26, 2019, Hengst was transferred to “the hole” based on his “fighting” with Shellers and the “incident” with correctional officers a few days earlier, without a hearing. While in “the hole, ” medical staff failed to provide Hengst, who remained on a liquid diet, with sufficient caloric intake. Although a doctor had ordered six servings of liquid protein diet per day, medical staff routinely served Hengst only two servings. In addition, medical staff failed to adequately crush or dissolve his pain medications, causing Hengst to experience difficulty in consuming them.
On April 29, 2019, Hengst complained to the doctor that he was not receiving his full allotment of six servings of liquid protein diet. On April 30, 2019, Hengst received no protein shakes at all, and his morning pain medications were delayed by hours. Later that day, Hengst got into an argument with a member of the medical staff and correctional officers about his protein shakes, and he was threatened with being moved to segregated suicide watch as punishment. The doctor overheard the commotion and asked Hengst what the problem was. Hengst told him about the lack of protein shakes, and the doctor told Hengst he would correct the matter. One hour later, Hengst was sent to the segregated suicide watch unit as punishment, as he had been threatened earlier.
On May 2, 2019, Hengst attempted to mail a letter to his attorney complaining about the foregoing events, but he was told he would need to buy stamps himself, despite having no canteen services or privileges while in segregation. Hengst also requested a sick call due to his swollen and painful face. That same day, the water was cut off to his cell, and it remained off.
On May 3, 2019, with the water still turned off, Hengst could not rinse his mouth, wash his hands, drink water, or flush the toilet. The toilet was full of waste that caused his cell to smell horribly.
On May 4, 2019, with the water still turned off, Hengst attempted again to mail a letter to his attorney, but he was again told he needed to buy stamps to do so, despite having no canteen services or privilges.
On May 5, 2019, with the water still turned off, Hengst asked a correctional officer to turn the water on briefly so he could flush the toilet. The officer was able to simply turn the water on.
On May 6, 2019, the water in Hengst's cell was turned off again at 8:30 a.m. His eyeglasses were finally returned to him.
On May 7, 2019, Hengst was called into the captain's office and told that his account was frozen because he owed $18 for the jumpsuit correctional officers had cut off him, thus preventing him from buying postage to mail a letter to his lawyer.
On May 8, 2019, water to Hengst's cell was turned off again.
On May 10, 2019, Hengst sneezed, causing a wire in his mouth to break. Medical staff told him there was nothing they could do, and they gave him a piece of wax for the broken wire.
On May 14, 2019, Hengst was moved to another cell, and a correctional officer told him that he had “pissed off a lot of people at the prison” due to his threat of filing a lawsuit and his signing of a retainer agreement with an attorney.
On May 16, 2019-six days after the wire broke-Hengst was taken back to the oral surgeon to have his jaw rewired shut.
On May 17, 2019, Hengst met with a doctor regarding his ankle. Hengst learned that he had missed two scheduled medical appointments because they had been canceled by PrimeCare for unknown reasons.
From May 18, 2019, through May 20, 2019, the water to Hengst's cell was turned off again.
On May 21, 2019, Hengst was taken to Wellspan Orthopedic for evaluation and treatment of his ankle injury. He was told that it was sprained during the April 21, 2019, incident with correctional officers.
On June 7, 2019, Hengst was finally able to speak with his attorney by phone. On June 11, 2019, Hengst was able to meet with his attorney in person to discuss his criminal case. At this meeting, the lawyer asked staff about correspondence that he had sent on April 8, 2019, but Hengst had never received. The letter was located and the attorney was advised that Hengst would receive it promptly.
On June 13, 2019, Hengst entered a negotiated plea, and he was sentenced to state prison. After being transferred to state prison, Hengst requested paper but was regularly denied access to it, so he could not inform York County Prison officials of his new address.
Hengst further alleges that York County Prison officials wrongfully labeled him as a violent offender based on the “fight” with Shellers and the subsequent “incident” with correctional officers, causing state prison officials to misclassify him as well, causing him to lose various vocational and rehabilitation privileges.
II. Legal Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “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). A fact is “material” only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is “genuine” only if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, ” and demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes such a showing, the non-movant must set forth specific facts, supported by the record, demonstrating that “the evidence presents a sufficient disagreement to require submission to the jury.” Anderson, 477 U.S. at 251-52.
In evaluating a motion for summary judgment, the Court must first determine if the moving party has made a prima facie showing that it is entitled to summary judgment. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 331. Only once that prima facie showing has been made does the burden shift to the nonmoving party to demonstrate the existence of a genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 331.
Both parties may cite to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers or other materials.” Fed.R.Civ.P. 56(c)(1)(A). “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). “Although evidence may be considered in a form which is inadmissible at trial, the content of the evidence must be capable of admission at trial.” Bender v. Norfolk S. Corp., 994 F.Supp.2d 593, 599 (M.D. Pa. 2014); see also Pamintuan v. Nanticoke Mem'l Hosp., 192 F.3d 378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary judgment, to consider evidence that is not admissible at trial).
III. Discussion
The plaintiff asserts various federal civil rights claims against the defendants. The defendants have interposed an affirmative defense, asserting that Hengst failed to properly exhaust his administrative remedies before bringing this action. Although Hengst filed several written grievances while incarcerated at York County Prison, the defendants contend that he failed to complete the prison's grievance appeals process after he was transferred to the state prison system. In particular, they note that Hengst failed to provide an updated forwarding address to the county grievance coordinator or the county solicitor after his reception into the state prison system, terminating the grievance appeals process without fully exhausting his administrative remedies.
A. Undisputed Material Facts
The defendants have filed two separate motions for summary judgment. The County and Correctional Officers have jointly filed a motion for summary judgment. (Doc. 21.) PrimeCare has filed its own separate motion for summary judgment (Doc. 24.)
In support of these two motions for summary judgment, and in accordance with the local civil rules, the defendants have filed corresponding statements of material facts. The County and Correctional Officers filed a joint statement of material facts, set forth in numbered paragraphs, with each statement supported by specific references to documentary exhibits or other parts of the record that support these statements. (Doc. 23.) PrimeCare filed its own statement of material facts, set forth in numbered paragraphs, with each statement supported by specific references to documentary exhibits or other parts of the record that support these statements. (Doc. 25.)
The plaintiff has filed two identical copies of documents styled “Plaintiff's Counter-Statement of Material Facts.” (Doc. 30; Doc. 31.) In e-filing these documents on the court's ECF docket, plaintiff's counsel linked the first copy to his brief in opposition to PrimeCare's summary judgment motion and the second copy to his brief in opposition to the County's/Correctional Officers' summary judgment motion. The plaintiff's counter-statement of material facts does not respond to the numbered paragraphs set forth in either of the statements filed by the defendants. See M.D. Pa. L.R. 56.1. Nor does it contain any citations or references whatsoever to any parts of the record to support these counter-statements. See Fed. R. Civ. P. 56(c)(1); M.D. Pa. L.R. 56.1.
If there is any difference between the two documents, it is not readily apparent to our eyes.
The County and Correctional Officers have filed a response to the plaintiff's counter-statement of material facts, in which they note that the plaintiff's filing did not comply with the requirements of Local Rule 56.1. (Doc. 34.) Based on this defective filing by the plaintiff, the County and Correctional Officers have requested that the court strike the plaintiff's counter-statement of material facts and that the statement of material facts by the County and Correctional Officers be deemed admitted. (Id.) PrimeCare has similarly responded to the plaintiff's counter-statement of material facts. (Doc. 35.) Although PrimeCare does not request that the plaintiff's counter-statement be stricken, it does request that the statements of fact therein be disregarded because they are entirely unsupported by any reference to the record. (Id.)
Under Local Rule 56.1, a party opposing summary judgment is required to file “a separate, short and concise statement of the material facts, responding to the numbered paragraphs” in the movant's statement of material facts. M.D. Pa. L.R. 56.1. The local rule does not permit a non-moving party to file an additional statement of material facts that does not respond to the movant's statement. See Farmer v. Decker, 353 F.Supp.3d 342, 347 n.1 (M.D. Pa. 2018) (disregarding non-movant's additional statement of facts for non-compliance with Local Rule 56.1); Barber v. Subway, 131 F.Supp.3d 321, 322 n.1 (M.D. Pa. 2015) (declining to consider separate counter-statement of facts that was non-responsive to the movant's statement because it was “neither contemplated nor permitted by the Local Rules”); see also Rau v. Allstate Fire & Cas. Ins. Co., 793 Fed. App'x 84, 87 (3d Cir. 2019) (upholding district court decision to strike non-movant's non-responsive counter-statement of facts under Local Rule 56.1); Weitzner v. Sanofi Pasteur Inc., 909 F.3d 64, 613-14 (3d Cir. 2018) (upholding district court decision to strike non-responsive paragraphs from non-movant's answer to movant's statement of material facts under Local Rule 56.1). Accordingly, the court will grant the request by the County and Correctional Officers to strike the plaintiff's counter-statement of facts with respect to their summary judgment motion because it does not comply with Local Rule 56.1.
Moreover, it is well established that abusive filings “may be stricken sua sponte under the inherent powers of the court.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (striking appellate brief); Thomas v. Keystone Real Estate Grp. LP, No. 4:14-CV-00543, 2015 WL 1471273, at *8 (M.D. Pa. Mar. 31, 2015) (striking motion and accompanying brief and exhibits). The plaintiff's counter-statement of material facts with respect to PrimeCare's summary judgment motion is identical to his counter-statement of material facts with respect to the County/Correctional Officers motion. Accordingly, we will strike that document as well, sua sponte.
Finally, we turn to the plaintiff's utter failure to respond to the defendants' particular statements of material facts, each of which is supported by reference to materials in the record. Under Rule 56 of the Federal Rules of Civil Procedure,
[a] party asserting that a fact . . . is genuinely disputed must support that assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited [by the movant] do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Our local rule similarly provides that “[s]tatements of material facts . . . in opposition to[] a motion [for summary judgment] shall include references to the parts of the record that support the statements.” M.D. Pa. L.R. 56.1.
Not only is the plaintiff's counter-statement of material facts entirely unresponsive to the numbered paragraphs of the defendants' statements of material facts, the plaintiff has failed to include any citations or references whatsoever to any parts of the record on summary judgment. (See Doc. 30; Doc. 31.) Accordingly, the court will deem the defendants' statements of material facts admitted, and we will consider the facts asserted therein to be undisputed for purposes of the motions for summary judgment before us. See Fed. R. Civ. P. 56(e)(2).
From November 1, 2018, through July 11, 2019, Hengst was a lawfully confined pretrial detainee at York County Prison. The York County Prison has a comprehensive, multi-stage administrative remedy system for inmates to file grievances concerning prison conditions. This system is outlined in an Inmate Handbook that is given to all inmates as part of their orientation when confined at York County Prison. A copy of the Inmate Handbook was given to Hengst upon his incarceration at York County Prison, and Hengst initialed and signed a form acknowledging receipt of the handbook.
With respect to grievance procedures, the Inmate Handbook provides in relevant part:
18. GRIEVANCE PROCEDURES
The prison has a formal process for raising concerns and addressing problems that you cannot resolve in your housing unit with correctional officers, counselors or supervisors. This process is called the Inmate Grievance System. It is also referred to as the 801 system based on the grievance form id number 801.
You have the right to submit grievances without fear of retaliation or punishment for seeking resolution to your complaints/grievances. You may seek assistance from other inmates, facility staff, family members, or legal representatives when preparing your grievance. You may obtain grievance forms (801) from your block counselor or housing unit officer. The following is an explanation of the Inmate Grievance System and what is expected from you and prison staff:
3. Grievance forms should be completed and filed within ten (10) days of the act, acts or omission or conditions that form the basis of the complaint. Grievances will not be considered after six (6) months, unless cause is shown establishing the inmate/detainee was physically or mentally unable to file the grievance or if the complaint involves sexual abuse. No. grievance will be considered more than one (1) year after the act, acts or omissions or conditions that form the basis of the complaint except that sexual abuse will be considered at any time.
a. In Block A of the form you are to provide a clear statement not exceeding the one page limit. Include the relief/resolution you are seeking.
b. In Block B you are to list the actions you took to resolve your complaint before submitting the grievance.
4. Grievances will be forwarded to the Grievance Coordinator everyday excluding weekends and holidays for resolution. You will normally receive a response within five (5) to ten (10) business days from the date it was received. If your grievance requires investigation, the response time may take longer.
5. You are required to follow the rules of the grievance process. If you fail to comply with the following you will be issued a grievance rejection form noting the reason your grievance was rejected. You will be directed to submit another type of form or resubmit the grievance form with your errors corrected. Grievance will be rejected for the following reasons:
b. The grievance was not submitted with[]in ten (10) days of the event, act or acts and you failed to provide a reasonable explanation for the delay in submission and it was not established that you were mentally or physically unable to submit the grievance and the complaint did not involve sexual abuse.
j. An inmate whose grievance has been returned for any of the above reasons may file an appeal as hereinafter provided.
6. If you feel the Grievance Coordinator has not
resolved your complaint, you have the right to appeal the decision by completing and submitting the appeal form called an 804. These forms will accompany your 801 responses from the grievance coordinator. You must submit your 804 appeal form to the Deputy Warden of Centralized Services within five (5) days of receipt of the response from the complaint supervisor; otherwise your appeal may be rejected.
7. The Deputy Warden(s) will normally respond to the 804 forms within twenty-one (21) business days from the receipt of the appeal forms with an 805A form; however this may take longer if further investigation is required. When you submit the 804 appeal form you may keep the yellow copy for your records.
8. If you wish to appeal the decision of the Deputy Warden(s), you may submit an 806 form (“Request for Solicitor Review”). This form will accompany the 805A response from the Deputy Warden and must be completed within three (3) days of receiving the form. These forms will be forwarded to the Warden and then he or she will send the entire packet to the Solicitor, for his review. When you submit the 806 appeal form you may keep the yellow copy for your records.
9. The Solicitor will review the 806 Form and prepare a written response to you. This is normally completed within thirty (30) days or as soon as an investigation is completed. If you are not satisfied with the Solicitor's review, you may, within thirty (30) days of the date of the Solicitor's written review, appeal directly to the Prison Board by writing a letter that explains the reason(s) for the appeal to: Chairman, Inspectors of York County Prison (Prison Board), 28 East
Market Street, York, Pennsylvania 17401.
10. The Solicitor may refer the matter to the Complaint Review Board. Recommendations of the Complaint Review Board will be made to the York County Prison Board. If you are not satisfied with the decision of the Complaint Review Board, you may, within thirty (30) days of the date of the Board's decision, appeal directly to the York County Prison Board. Such appeal shall be in a written form and explain the reason for the appeal. Mail the appeal to: Chairman, Inspectors of York County Prison, 28 East Market Street, York, Pennsylvania 17401.
11. Inmates/detainees who are transferred to another institution or released from the York County Prison may file a grievance in writing by addressing a letter to the Deputy Warden of Centralized Services, York County Prison, 3400 Concord Road, York, Pennsylvania 17402.
12. The grievance system shall not be considered exhausted unless all reviews and appeals have been taken on time and denied. . . .
22. Continuing a Grievance Upon Release or Transfer:
a. In the event that you are transferred to another prison/jail or released and want to submit a grievance, you must submit your grievance in writing to: York County Prison, C/O Grievance Office, 3400 Concord Road[, ]
York, PA 17404.
b. In the [e]vent that you are transferred to another prison/jail or released with appeals pending (804/806) or appeals to the Prison Board, you must advise both the Grievance Coordinator and the Solicitor's Office, in writing, of a valid forward[ing] address. The notice to the Solicitor's Office [s]hall be mailed to: 28 East Market Street, York, PA 17401, within five (5) days of leaving the York County Prison. The failure to do so will automatically foreclose your right to obtain a Right-to-Sue Letter, and/or exhaust your [a]dministrative remedies.(Doc. 23-1, at 24-27.)
We note that the instructions set forth in paragraph 11 are inconsistent with the instructions set forth in paragraph 22(a).
See supra note 4.
We note that the defendants have selectively quoted this grievance policy language in their statements of material facts, in their supporting briefs, and in supporting testimonial declarations, but we have quoted more broadly from the policy itself, submitted by the defendants as an evidentiary exhibit, as the defendants' quotations have omitted material provisions of the prison's grievance policy.
While incarcerated at York County Prison, Hengst filed a total of nineteen inmate grievances, none of which were appealed to the final, highest level of review by the Prison Board. When Hengst was released from York County Prison and transferred to the state prison system on July 11, 2019, there were multiple pending grievances that Hengst had filed but which remained pending on appeal.
On November 5, 2018, Hengst filed an inmate grievance, which was designated as Grievance No. 111618E by the grievance coordinator. In this grievance, Hengst complained that a nurse had intentionally mis-recorded the volume of his reported alcohol consumption on his intake forms, and that, despite his refusal of them, she added detox meds to his medication list. He complained that he then passed out the first time he received medications while incarcerated, causing him to fall and break his ankle. On or about November 16, 2018, Hengst received an initial review response from P.A. Bennett, a registered nurse who investigated the grievance. Bennett found that the medical care provided to Hengst “appears appropriate.” Hengst did not appeal the grievance response to the deputy warden. (Doc. 25-2, at 30-32.)
On February 4, 2019, Hengst filed an inmate grievance, which was designated as Grievance No. 021219C by the grievance coordinator. In this grievance, Hengst complained that his glasses had been broken when he fell on November 1, 2018, and that the medical staff refused to give him the new replacement glasses that had been ordered for him until he paid for them. He complained that the medical staff was responsible for breaking his glasses in the first place because they had given him unnecessary detox meds, which had caused him to pass out and fall. On or about February 12, 2019, Hengst received an initial review response from Tammy Ruiz, a registered nurse and the assistant director of nursing who investigated the grievance. Ruiz found that detox meds had been ordered for Hengst based on the consumption of 14 drinks daily, which he had self-reported on intake. Thus, she found that medical was not responsible for the broken glasses. On February 14, 2019, Hengst submitted his 804 appeal form, disputing the factual basis for Ruiz's initial grievance response-in particular, denying that he had a drinking problem or that he had reported consuming 14 drinks daily-and repeating his contention that his original glasses were broken when he passed out and fell due to an adverse reaction to unnecessary detox meds, which he had explicitly refused upon intake. This appeal to the deputy warden was still pending five months later when Hengst was transferred to state custody on July 11, 2019. On August 19, 2019, the deputy warden recorded a response to the grievance appeal, indicating that the inmate had been released before the appeal had been addressed. (Id. at 26-29; see also Doc. 23 ¶ 22.)
On April 30, 2019, Hengst filed an inmate grievance, which was designated as Grievance No. 050319E by the grievance coordinator. In this grievance, Hengst complained that, despite having a medically prescribed diet of two protein shakes plus two cups of broth three times daily due to his broken jaw being wired shut, he was not receiving the protein shakes. He complained that, as a result, he had lost forty pounds in two weeks. On or about May 3, 2019, Hengst received an initial review response from Nurse Bennett, who found that Hengst's prescribed liquid diet was appropriate to his medical condition (an immobilized jaw), and that his current weight was the same as his weight upon admission to the prison. Bennett concluded that the care provided to Hengst was “appropriate.” On May 3, 2019, Hengst submitted his 804 appeal form, disputing the factual basis for Bennett's initial grievance response-in particular, he claimed that he received no protein shakes at all for more than a week, when he finally complained, and that he still often received only one or two protein shakes per day. Hengst noted that he originally had gained thirty pounds after he arrived at the prison, but he had rapidly lost that weight over the course of two weeks after having his jaw wired shut. This appeal to the deputy warden was still pending two months later when Hengst was transferred to state custody on July 11, 2019. On July 11, 2019, the deputy warden recorded a response to the grievance appeal, indicating that the inmate had been released before the appeal had been addressed. (Doc. 25-2, at 19-22.)
In his 804 appeal with respect to Grievance No. 050319E, Hengst had referenced additional, new complaints as well, noting that his water had been turned off for two days and he had developed an infection in his jaw. Prison officials appear to have taken the liberty of splitting these issues off to be addressed as separate grievances. On or about May 28, 2019, Hengst received an initial review response from Nurse Bennett, addressing the infection, now designated as Grievance No. 052819A. Bennettt found that Hengst's intraoral abscess appeared to have resolved. Her response also noted that a diet of protein shakes had been ordered for the next six weeks. On May 28, 2019, Hengst submitted an 804 appeal form, disputing only the dietary issue, noting that he had again received only two protein shakes that day. On or about June 28, 2019, Hengst received the deputy warden's response, which noted that, per Bennett, the intraoral abscess had resolved, and that the dietary issue was the subject of another grievance appeal and would not be addressed in this separate appeal. Hengst did not appeal the deputy warden's response to the solicitor. (Id. at 13-15.)
On May 5, 2019, Hengst filed an inmate grievance, which was designated as Grievance No. 050919A by the grievance coordinator. In this grievance, Hengst complained that, despite the Nurse Bennett's recent finding that his liquid diet issues had been resolved, he continued to be denied his full allotment of protein shakes as prescribed by a doctor. On or about May 9, 2019, Hengst received an initial review response from Bennett, who found that records reflected the appropriate number of protein shakes, and she instructed Hengst to inform her if there were any further issues. On May 14, 2019, Hengst submitted an 804 appeal form, complaining that he had sneezed and broken a wire in his jaw. He complained that the response by medical staff-giving him a bit of wax to cover the sharp end of the wire-was inadequate. In addition, he complained that he was transferred to a new cell, with a cellmate, and some of his legal papers were missing when given back to him upon completing the transfer. On or about July 1, 2019, Hengst received the deputy warden's response, which rejected the appeal on the ground that Hengst's complaints about a broken wire did not correspond with the subject of the original grievance-failure to provide him with medically prescribed protein shakes. The deputy warden enclosed a new 804 appeal form and directed Hengst to resubmit his appeal concerning protein shakes if he desired. Hengst did not appeal the deputy warden's rejection of the original 804 appeal to the solicitor, and he did not resubmit his 804 appeal with respect to protein shakes. (Id. at 9-12.)
On May 14, 2019, Hengst filed an inmate grievance, which was designated as Grievance No. 052119C by the grievance coordinator. In this grievance, Hengst complained about the purportedly inadequate response of medical staff to the broken wire in his jaw. On or about May 21, 2019, Hengst received an initial review response from Nurse Bennett, who found that Hengst had been seen by an oral surgeon on May 16, 2019, for replacement of the hardware wiring his jaw shut. She further noted that, at the time of the incident, Hengst was seen by dental clinic staff who, on instructions from the oral surgeon, snipped the broken wire and scheduled him for an outside visit to the oral surgeon. Bennett concluded that the issue had been resolved. On May 22, 2019, Hengst submitted an 804 appeal form, complaining that the delay in treatment he experienced was unacceptable. This appeal to the deputy warden was still pending two months later when Hengst was transferred to state custody on July 11, 2019. On August 12, 2019, the deputy warden recorded a response to the grievance appeal, indicating that the inmate had been released before the appeal had been addressed. (Id. at 4-8.)
Following his transfer out of York County Prison and into the state correctional system, Hengst failed to provide either the grievance coordinator or the solicitor with his new mailing address, as required by the grievance procedures outlined in paragraph 22(b) of the Inmate Handbook.
In his briefs and other filings, Hengst suggests that he was not permitted access to paper upon his arrival at SCI Camp Hill, so he could not comply with this requirement. While such a condition might arguably render administrative remedies effectively unavailable to him, he has failed to adduce any competent evidence to support this representation.
Hengst never filed an inmate grievance complaining that he was not given ice to help him reduce swelling in his fractured ankle prior to casting, or blankets to help him elevate the ankle to reduce the swelling. He never filed an inmate grievance complaining about mail issues of any sort. Other than the grievances described above, he never filed an inmate grievance complaining about inadequate dental or medical care.
In a testimonial affidavit, Adam Ogle, a deputy warden at York County Prison, acknowledged that Hengst filed three additional grievances that appear to be pertinent to his complaint, but few details were provided by the affiant. On May 14, 2019, Hengst submitted an inmate grievance concerning lost legal work, which was “resolved”; it is unclear when the grievance response was made or whether Hengst appealed the response. On May 22, 2019, Hengst submitted an inmate grievance complaining that the water had been turned off in his cell, and the affiant represents that this claim was investigated and no evidence was found to substantiate the grievance; it is unclear when the grievance response was made or whether Hengst appealed the response. On May 22, 2019, Hengst submitted an inmate grievance claiming that he had been “assaulted by two Correction Officers, which was not resolved prior to his release”; it is unclear what stage of the grievance process (initial investigation or appeal) this grievance was at when Hengst was transferred, or whether this grievance concerned the April 21, 2019, use of force by correctional officers alleged in the complaint or some other incident. (Doc. 23-1 ¶ 16.)
B. Exhaustion of Available Administrative Remedies
As noted above, the plaintiff has failed to file a proper response to the defendants' statements of material facts or to cite any specific evidence whatsoever to demonstrate a genuine dispute of material fact with respect to the exhaustion of administrative remedies. Under the local civil rules, all material facts set forth in the movants' statements of material fact “will be deemed to be admitted unless controverted” by the non-movant's response to the statements of fact. M.D. Pa. L.R. 56.1. But this failure to file a competent response to the statements of material facts does not mean the defendants are automatically entitled to summary judgment. See Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990). This local rule must be construed and applied in a manner consistent with Rule 56 of the Federal Rules of Civil Procedure. See id.at 174. Thus, in the context of a motion for summary judgment, a non-movant's failure to competently respond to a statement of material facts is “construed as effecting a waiver of [the non-movant's] right to controvert the facts asserted by the moving party in the motion for summary judgment or the supporting material accompanying it.” Id. at 175-76. The moving parties must nevertheless establish that, based on the facts set forth in support of their motions, they are entitled to judgment as a matter of law. See id.; see also Lorenzo v. Griffith, 12 F.3d 23, 28 (3d Cir. 1993). Ultimately, failure to exhaust administrative remedies is an affirmative defense that must be pleaded and proven by the defendant. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002) (“Prison officials are likely to have greater legal expertise and, as important, superior access to prison administrative records in comparison to prisoners.”) (brackets omitted).
Before bringing a § 1983 action concerning prison conditions, a prisoner must first exhaust all available administrative remedies. 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”); see also Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[A]n inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues.”). “[I]t is beyond the power of this court . . . to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis.” Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000).
Moreover, § 1997e(a) requires “proper” exhaustion of administrative remedies, meaning strict compliance with grievance sytem deadlines and other procedural rules. Woodford v. Ngo, 548 U.S. 81, 89-95 (2006). “A procedural default by the prisoner, either through late or improper filings, bars the prisoner from bringing a claim in federal court unless equitable considerations warrant review of the claim.” McKinney v. Kelchner, No. 1:CV-05-0205, 2007 WL 2852373, at *3 (M.D. Pa. Sept. 27, 2007) (citing Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004)). “[T]o properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with the applicable procedural rules'-rules that are defined not by [§ 1997e(a)], but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S. at 88) (citation omitted); see also Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002) (“Section 1997e(a) does not delineate the procedures prisoners must follow.”). “The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not [§ 1997e(a)], that define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218. “The only constraint is that no prison system may establish a requirement inconsistent with the federal policy underlying § 1983 and § 1997e(a).” Strong, 297 F.3d at 649. Thus, it follows that “grievances must contain the sort of information that the administrative system requires.” Strong, 297 F.3d at 649. But,
if prison regulations do not prescribe any particular content for inmate grievances, “a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought. . . . [T]he grievant need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming.”Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (quoting Strong, 297 F.3d at 650).
Here, in addition to the applicable prison grievance policy itself, the defendants have proffered copies of some of Hengst's grievance records, but other potentially relevant grievances are only summarized.
First, we note that the defendants have not addressed the plaintiff's retaliation claims whatsoever. Thus, we find that the defendants have failed to satisfy their burden of making a prima facie showing that they are entitled to summary judgment on these claims based on the plaintiff's failure to exhaust available administrative remedies. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 331.
Second, with respect to these grievances that are only summarized-three May 2019 grievances addressing lost legal work, water to his cell being turned off, and an assault on Hengst by two correctional officers-the Ogle Affidavit provides no substantive or procedural detail regarding these grievances, and none of the grievance papers were attached as exhibits or otherwise submitted into the record. On summary judgment, “the affiant must ordinarily set forth facts, rather than opinions or conclusions. An affidavit that is essentially conclusory and lacking in specific facts is inadequate to satisfy the movant's burden.” Maldonado v. Ramirez, 757 F.2d 48, 51 (3d Cir. 1985) (emphasis added, internal quotation marks omitted); see also Bender v. Norfolk S. Corp., 994 F.Supp.2d 593, 601 (M.D. Pa. 2014) (“Declarations that are essentially conclusory and lacking in specific facts have no probative value.”); McShane Contracting Co., Inc. v. U.S. Fid. & Guar. Co., 61 F.R.D. 478, 481 (W.D. Pa. 1973) (“[T]he [summary judgment] affidavit is no place for ultimate facts and conclusions.”). Thus, we find that the defendants have failed to satisfy their burden of making a prima facie showing that they are entitled to summary judgment on these claims based on the plaintiff's failure to exhaust available administrative remedies. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 331.
Third, with respect to the three grievances that remained pending on appeal at the time of Hengst's transfer to state custody-concerning the withholding of his new eyeglasses (No. 021219C), the failure to provide him with medically prescribed protein shakes or an otherwise adequate liquid diet (No. 050319E), and the failure to provide adequate dental or medical care when he broke a wire while his jaw was immobilized (No. 052119C)-the defendants contend that Hengst failed to exhaust his administrative remedies based on his failure to promptly provide prison officials with a valid forwarding address, as is required by paragraph 22(b) of the prison grievance policy. But in each of these three instances, by the time he had been transferred, the plaintiff had fully discharged the PLRA's exhaustion requirement because administrative remedies had already been made unavailable by the prison's failure to act on his appeals in a timely manner.
Based on Ogle's affidavit, a fourth grievance concerning an unspecified assault on Hengst by two correctional officers was also pending at the time of his transfer. We have found the conclusory treatment of this grievance by the defendants failed to satisfy their burden to demonstrate with specific proof that they are entitled to judgment as a matter of law on this claim. Thus, we do not address the assault claim along with the other grievances that remained pending at the time of Hengst's transfer.
We note that Hengst also filed a second, substantively duplicative grievance concerning the failure to provide him with medically prescribed protein shakes or an otherwise adequate liquid diet (No. 050919A). Hengst received an initial review response finding that records reflected the appropriate number of shakes. He appealed, but his 804 appeal addressed the unrelated issue of the broken wire in his jaw. The deputy warden rejected the appeal on that basis, and Hengst failed to resubmit the appeal.
As the Third Circuit has stated:
What is good for the goose is good for the gander. The PLRA requires strict compliance by prisoners seeking redress of their grievances, and by the same token we hold that it requires strict compliance by prison officials with their own policies. Whenever a prison fails to abide by those procedural rules, its administrative remedies have become unavailable, and inmates are deemed to have successfully exhausted their remedies for purposes of the PLRA.Shifflett v. Korszniak, 934 F.3d 356, 367 (3d Cir. 2019).
With respect to each of these three grievances, Hengst promptly submitted an 804 appeal from an adverse initial grievance response to the deputy warden within the required five-day period. Under the prison's own grievance procedures, the deputy warden was due to respond to the 804 appeal within twenty-one business days; in none of these instances was there any notice to the inmate that an investigation or other complications would require additional time for a response. Months later, Hengst was transferred to state custody, and the deputy warden had still not responded. As the Third Circuit held in Shifflett, “[a]s soon as a prison fails to respond to a properly submitted grievance or appeal within the time limits prescribed by its own policies, it has made its administrative remedies unavailable and the prisoner has fully discharged the PLRA's exhaustion requirement. Thus, we find that the defendants have failed to satisfy their burden of making a prima facie showing that they are entitled to summary judgment on these claims based on the plaintiff's failure to exhaust available administrative remedies. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 331.
Hengst appealed Grievance No. 021219C on February 14, 2019. A response by the deputy warden was due on or about March 18, 2019- almost four months before Hengst was transferred. Hengst appealed Grievance No. 050319E on May 28, 2019. A response by the deputy warden was due on or about June 18, 2019- nearly a month before Hengst was transferred. Hengst appealed Grievance No. 052119C on May 22, 2019. A response by the deputy warden was due on or about June 12, 2019-a month before Hengst was transferred.
Fourth, with respect to two other grievances Hengst filed but failed to timely appeal while still incarcerated at York County Prison-one concerning the medical care given to him upon intake, including orders that he receive detox meds that caused him to pass out and break his ankle (No. 111618E), and another concerning conditions that allegedly caused him to suffer an intraoral abscess or infection while his jaw was wired shut (No. 052819A)-Hengst clearly failed to exhaust available administrative remedies. In both instances, Hengst failed to timely appeal an adverse response, which he had received while still incarcerated at York County Prison. Thus, we find that, with respect to these two claims, the defendants have satisfied their prima facie burden, and, in the absence of any evidence to demonstrate the existence of a genuine dispute of material fact, we find that they are entitled to summary judgment on these two claims based on the plaintiff's failure to exhaust available administrative remedies.
Fifth, and finally, Hengst never filed an inmate grievance at all concerning several claims he has asserted in this lawsuit. He never filed a grievance regarding the provision of ice or blankets to help him relieve swelling when his ankle was broken, regarding mail issues of any sort, or any other instances of inadequate dental or medical care. Thus, we find that, with respect to these claims, the defendants have satisfied their prima facie burden, and, in the absence of any evidence to demonstrate the existence of a genuine dispute of material fact, we find that they are entitled to summary judgment on these two claims based on the plaintiff's failure to exhaust available administrative remedies.
C. Summary Judgment on the Merits
In the alternative, the County and Correctional Officers have requested summary judgment on the merits with respect to the plaintiff's excessive force and Monell municipal liability claims. But under the procedural circumstances of this case, we find consideration of summary judgment on the merits to be premature.
As required by the federal and local rules, counsel for the parties met and conferred regarding a discovery plan for this case. See Fed. R. Civ. P. 26(f); M.D. Pa. L.R. 16.3(a). Following this attorneys' conference, the parties agreed to and submitted a joint case management plan. (Doc. 18.) This joint case management plan explicitly contemplated an initial round of discovery limited to the exhaustion of administrative remedies defense that had been interposed by all defendants, to be followed by summary judgment motions on the exhaustion defense. (See Id. ¶ 4.4 (“Initial discovery [shall] be limited to exhaustion of administrative remedies until such time as the Court rules upon the anticipated motions for summary judgment as to the exhaustion of administrative [remedies] defense.”); see also Id. ¶ 5.1 (noting that, with respect to the necessity of any protective orders, “if the case proceeds past the initial motion for summary judgment, the Defendants will seek to have policies deemed confidential as well as information from personnel files”); id. ¶ 6.3 (“All fact discovery commenced in time to be completed by: April 2, 2021 (as to exhaustion)[.]”) (emphasis added); id. ¶ 10.0 (“The parties believe that doing initial discovery and motions as to the exhaustion defense is the most efficient way to proceed with the case.”).
Counsel for the parties appeared before the court for a telephonic Rule 16(b) case management conference, and, following that conference, we entered a scheduling order that likewise contemplated a bifurcated approach to discovery and dispositive motions. (See Doc. 20, at 1 (“The parties have indicated that there is possibly a failure to exhaust administrative remedies defense in this case. Thus, this Order will address that defense. A further Order of Court will be issued if Plaintiff properly exhausted his administrative remedies prior to filing suit.”).
With respect to those claims as to which the defendants have failed to meet their burden of demonstrating the plaintiff's failure to exhaust available administrative remedies, summary judgment on the merits would be premature without first permitting the parties to fully engage in the discovery and dispositive motion practice originally contemplated by the parties and by the court. Therefore, we recommend that, to the extent that the movants seek summary judgment on the merits of the plaintiff's claims, the summary judgment motion by the County and Correctional Officers be denied without prejudice as premature.
IV. Recommendation
For the foregoing reasons, it is recommended that:
1. The defendants' motions for summary judgment (Doc. 21; Doc. 24) be GRANTED in part and DENIED in part;
2. Summary judgment be DENIED without prejudice and the parties be permitted to proceed to discovery on the merits with respect to the plaintiff's claims concerning (a) the withholding of his new eyeglasses, addressed in Grievance No. 021219C dated February 4, 2019, (b) the failure to provide him with medically prescribed protein shakes or an otherwise adequate liquid diet, addressed in Grievance No. 050319E dated April 30, 2019, (c) the failure to provide adequate dental or medical care when he broke a wire while his jaw was immobilized, addressed in Grievance No. 052119C dated May 14, 2019, (d) the loss or destruction of his legal papers, addressed in a grievance dated May 14, 2019, (e) the shutting off of all water to his cell, addressed in a grievance dated May 22, 2019, (f) an April 21, 2019, incident involving the alleged use of excessive force by correctional officers, apparently addressed in a grievance dated May 22, 2019; and (g) retaliation by the defendants against the plaintiff for the exercise of his First Amendment petition rights;
3. The Clerk be directed to enter JUDGMENT in favor of the defendants and against the plaintiff with respect to (a) the plaintiff's claims concerning inadequate medical care based on allegedly medically unnecessary detox meds given to him on or about November 2, 2018, which allegedly caused him to fall and break his ankle and his eyeglasses, addressed in Grievance No. 111618E dated November 5, 2018, (b) the plaintiff's claims concerning inadequate medical care based on the occurrence of an intraoral abscess or infection, addressed in Grievance No. 052819A, (c) the plaintiff's claims that, in November 2018, he was denied ice to help reduce swelling in his fractured ankle, (d) the plaintiff's claims that, in November 2018, he was denied extra blankets to help him elevate his fractured ankle to help reduce swelling, (e) the plaintiff's claims concerning mail issues of any sort, and (f) any other claims by the plaintiff concerning inadequate dental or medical care not described in paragraph 2 above; and
4. The matter be remanded to the undersigned for further proceedings.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated December 17, 2021. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.