Opinion
CIVIL 2:22-CV-490
04-24-2023
HENRY JAMES HOLMES, Plaintiff, v. LAVERNE WAGNER, et al., Defendants.
(Chief Judge Brann)
REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge
I. Factual Background
This pro se, in forma pauperis lawsuit was reassigned to Chief Judge Brann and referred to the undersigned following the recusal of the judges initially assigned to this matter. This case now comes before us for consideration of a motion to dismiss filed by the defendants. (Doc. 15). As discussed below, it is recommended that this motion be granted, without prejudice to the plaintiff attempting to file an amended complaint which satisfies federal pleading standards.
In its current form Henry Holmes' complaint demands a great deal from the reader. There is a twofold challenge to construing this complaint: First, the complaint is for the most part unbound by any factual narrative describing when events occurred. Second, the allegations in the complaint are for the most part cast in an exceedingly vague form and are largely unmoored to any specific conduct by particular actors. Indeed, there is only one clearly stated averment involving a specific person at a particular time, and this single well-pleaded allegation falls far outside the statute of limitations.
Holmes filed this complaint in March of 2022, but the events set forth in the complaint entail conduct which allegedly began eight years earlier. Specifically, Holmes' complaint alleges that in January of 2014, he moved to Pittsburgh. At that time Holmes sought permission to reside in public housing with his sister but according to the complaint, Laverne Wagner, an occupancy manager, denied this request due to what Holmes describes as “false Calif. Sex charges.” (Doc. 1, at 4).Beyond this specific, albeit dated, allegation, Holmes' complaint devolves into an unintelligible recital of grievances that are not tied to any of the five defendants listed in the caption of the complaint and lack any chronological coherence. (Id.) Moreover, many of these named defendants are supervisory officials who are listed in the caption of the case, but then are never specifically mentioned in the body of Holmes' pleading. Instead, Holmes alleges that at various unidentified times, unnamed persons denied his requests for public housing in violation of the Fair Housing Act. On the basis of these obscure allegations, Holmes seeks money damages from the defendants, while noting that “the court can set a price” since Holmes' “focus is his Calif. Conviction.” (Id., at 5)
While Holmes insists upon calling these allegations false, court records indicate that he was convicted in California of a sex offense and has been arrested in Pennsylvania for failure to register as a sex offender. Holmes v. Forman, No. EDCV2201102DOCDFM, 2023 WL 319918, at *1 (C.D. Cal. Jan. 19, 2023); Holmes v. Veith, No. 2:22-CV-00580, 2022 WL 4539029, at *1 (W.D. Pa. Aug. 30, 2022), report and recommendation adopted, No. 2:22-CV-00580, 2022 WL 4536255 (W.D. Pa. Sept. 28, 2022). Thus, there appears to be nothing “false” about Holmes' sex offense conviction beyond the plaintiff's subjective sense of unfairness at having been convicted.
There is a motion to dismiss pending in this case which challenges the legal sufficiency of Holmes' complaint on a host of grounds. (Docs. 15, 16). Holmes has responded to this motion. (Doc. 35). Accordingly, the motion is ripe for resolution. Upon our independent consideration of this pleading, we conclude that this complaint fails to state a claim upon which relief may be granted. Therefore, it is recommended that the complaint be dismissed.
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, __U.S.__, 129 S.CT. 1937 (2009), Pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a plaintiff must provide some factual grounds for relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do.” Id., at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 679. According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id., at 678. Rather, in conducting a review of the adequacy of a complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id., at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions; it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[After 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).
In addition to these pleading rules, a civil complaint must comply with the requirements of Rule 8(a) of the Federal Rule of Civil Procedure, which defines what a complaint should say and provides that:
(a) A pleading that states a claim for relief must contain (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.Fed. R. Civ. P. 8.
Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se plaintiff's complaint must recite factual allegations that are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of action.
Judged against these legal guideposts, for the reasons set forth below it is recommended that this complaint be dismissed.
B. The Current Complaint Fails as a Matter of Law.
In this case, Holmes' complaint runs afoul of a series of legal obstacles. At the outset, dismissal of this complaint is warranted because many of the allegations in the complaint are plainly time-barred by the applicable statute of limitations. As we have noted, the only specific and well-pleaded allegation in this complaint is Holmes' averment that in January of 2014, when he moved to Pittsburgh, Holmes sought permission to reside in public housing with his sister but Laverne Wagner, an occupancy manager, denied this request due to what Holmes describes as “false Calif. Sex charges.” (Doc. 1, at 4).
As to this allegation which involves conduct that took place some nine years ago, the bar of the statute of limitations clearly applies. Under the Fair Housing Act: “An aggrieved person may commence a civil action in an appropriate United States district court or State court not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice ....” 42 U.S.C. § 3613(a)(1(A). Moreover, to the extent that Holmes endeavors to make broader federal civil rights claims under the general civil rights statute, 42 U.S.C. § 1983, it is also 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 “continuing 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 “equitable exception to the timely filing requirement.” West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir.1995). Thus, “when 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 “more 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 “degree 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).
Judged by these benchmarks, to the extent that Holmes' allegations state a claim upon which relief may be granted, it is clear that the only conduct which is fixed in time-the January 2014 denial of housing to this convicted sex offender- took place far beyond the two-year limitations period prescribed by law. Moreover, these events had the degree of permanence which triggered Holmes duty to act promptly. Yet, it is evident on the face of this complaint that Holmes has failed in this duty, delaying eight years before filing this complaint. Therefore all of Holmes' allegations which pre-date March of 2020 should be dismissed on statute of limitations grounds.
Once these time-barred claims are dismissed, there is a second fundamental flaw in this complaint. This pleading fails to comply with Rule 8's basic injunction that “[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). It is well settled that: “[t]he Federal Rules of Civil Procedure require that a complaint contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' Fed.R.Civ.P. 8(a)(2), and that each averment be ‘concise, and direct,' Fed.R.Civ.P. 8(e)(1).” Scibelli v. Lebanon County, 219 Fed.Appx. 221, 222 (3d Cir. 2007). Thus, when a complaint is “illegible or incomprehensible[ ]” id., or when a complaint “is not only of an unwieldy length, but it is also largely unintelligible[,]” Stephanatos v. Cohen, 236 Fed.Appx. 785, 787 (3d Cir. 2007), an order dismissing a complaint under Rule 8 is clearly appropriate. See, e.g., Mincy v. Klem, 303 Fed.Appx. 106 (3d Cir. 2008); Rhett v. New Jersey State Superior Court, 260 Fed.Appx. 513 (3d Cir. 2008); Stephanatos v. Cohen, 236 Fed.Appx. 785; Scibelli v. Lebanon County, 219 Fed.Appx. 221; Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 450 n.1 (5th Cir. 2005).
Dismissal under Rule 8 is also proper when a complaint “left the defendants having to guess what of the many things discussed constituted [a cause of action],” Binsack v. Lackawanna County Prison, 438 Fed.Appx. 158 (3d Cir. 2011), or when the complaint is so “rambling and unclear” as to defy response. Tillio v. Spiess, 441 Fed.Appx. 109 (3d Cir. 2011). Similarly, dismissal is appropriate in “those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Tillio v. Spiess, 441 Fed.Appx. 109, 110 (3d Cir. 2011) (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (quotations omitted)); Tillio v. Northland Grp. Inc., 456 Fed.Appx. 78, 79 (3d Cir. 2012). Further, a complaint may be dismissed under Rule 8 when the pleading is simply illegible and cannot be understood. See, e.g., Moss v. United States, 329 Fed.Appx. 335 (3d Cir. 2009) (dismissing illegible complaint); Radin v. Jersey City Medical Center, 375 Fed.Appx. 205 (3d Cir. 2010); Earnest v. Ling, 140 Fed.Appx. 431 (3d Cir. 2005) (dismissing complaint where “complaint fails to clearly identify which parties [the plaintiff] seeks to sue”); Oneal v. U.S. Fed. Prob., Civ. No. 055509, 2006 WL 758301 (D.N.J. Mar. 22, 2006) (dismissing complaint consisting of approximately 50 pages of mostly-illegible handwriting); Gearhart v. City of Philadelphia Police, Civ. No. 06-0130, 2006 WL 446071 (E.D. Pa. Feb. 21, 2006) (dismissing illegible complaint).
These principles apply here and call for the dismissal of Holmes' complaint in its current form. Indeed, aside from its time-barred averments, this complaint fails to clearly allege how the conduct of the defendants violated the FHA, when this conduct is alleged to have taken place, and who specifically participated in these acts. As we have observed, Rule 8 compels the dismissal of a complaint in a case such as this:
[S]ince the . . . complaint fails to allege what conduct occurred, who engaged in that conduct, and when this conduct took place. The failure to allege these basic facts could leave “defendants having to guess what of the many things discussed constituted [a cause of action].” Binsack v. Lackawanna County Prison, 438 Fed.Appx. 158 (3d Cir.2011). It also impedes any efforts to determine whether this pleading was timely filed within the statute of limitations. Therefore, Rule 8 compels dismissal of the complaint, which fails to state when these events are
alleged to have occurred. Collins v. Bates, No. 1:14-CV-1486, 2014 WL 4447553, at *5 (M.D.Pa. Sept. 10, 2014).Foster v. Fink, No. 3:14-CV-1368, 2016 WL 1728723, at *6 (M.D. Pa. Mar. 9, 2016), report and recommendation adopted, No. 3:14-CV-01368, 2016 WL 1718246 (M.D. Pa. Apr. 28, 2016).
In particular, Holmes' complaint levels civil rights claims against various supervisory officials but fails to meet the pleading standards necessary for supervisory civil rights liability. On this score, it is clear that a claimed civil rights deprivation cannot be premised merely on the fact that the named defendants were supervisors when the incidents set forth in the complaint occurred. Quite the contrary, to state a constitutional tort claim the plaintiff must show that the supervisory defendants actively deprived him of a right secured by the laws of Constitution of the United States. Morse v. Lower Merion School Dist., 132 F.3d 902 (3d Cir. 1997); see also Maine v.Thiboutot, 448 U.S. 1 (1980). Civil rights tort liability is personal in nature and typically follows from 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). As the Supreme Court has observed:
Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. . . . See Monell v. New York City Dept. of Social Servs., 436 U.S. 658,
691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (finding no vicarious liability for a municipal “person” under 42 U.S.C. § 1983); see also Dunlop v. Munroe, 7 Cranch 242, 269, 3 L.Ed. 329 (1812) (a federal official's liability “will only result from his own neglect in not properly superintending the discharge” of his subordinates' duties); Robertson v. Sichel, 127 U.S. 507, 515-516, 8 S.Ct. 1286, 3 L.Ed. 203 (1888) (“A public officer or agent is not responsible for the misfeasances or position wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties”). Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.Iqbal, 556 U.S. at 676.
Applying these benchmarks, courts have frequently held that, in the absence of evidence of supervisory knowledge and approval of subordinates' actions, a plaintiff may not maintain an action against supervisors based upon the misdeeds of their subordinates. Neuburger v. Thompson, 305 F.Supp.2d 521, 535 (W.D. Pa. 2004). Rather, “[p]ersonal involvement must be alleged and is only present where the supervisor directed the actions of supervisees or actually knew of the actions and acquiesced in them.” Jetter v. Beard, 183 Fed.Appx. 178, 181 (3d Cir. 2006) (emphasis added).
Here, in many instances Holmes does little more than name a supervisory official in the caption of the case, and then seek to hold that official personally liable based upon the official's supervisory status without making any specific factual allegations about these defendants in the body of this pleading. To the extent that Holmes simply premises the liability of these defendants upon their supervisory status without setting forth any further factual basis for a claim in the body of this pleading, this cursory style of pleading is plainly inadequate to state a claim against a prison supervisor and compels dismissal of these defendants. See Hudson v. City of McKeesport, 244 Fed.Appx. 519 (3d Cir. 2007) (affirming dismissal of defendant who was only named in caption of case.)
Since Holmes' complaint, in its current form, fails as a matter of law, this complaint should be dismissed. Yet, while this merits analysis calls for dismissal of this action in its current form, we recommend that the plaintiff be given another, final opportunity to further litigate this matter by endeavoring to promptly file an amended complaint which names proper party-defendants. 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 because amendment would be futile or result in undue delay, Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
We note that the defendants have asserted additional grounds which they contend support dismissal of this complaint. We decline to address these additional grounds at this time for two reasons. First, we find that these threshold concerns are sufficient to call for the dismissal of the lawsuit. In addition, Holmes' initial complaint is so opaque and incomprehensible that an evaluation of any additional defenses in our view must await the filing of a more intelligible pleading.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the plaintiff's complaint be dismissed without prejudice to the filing of an amended complaint.
The plaintiff is further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.