Opinion
Civ. 3:21-CV-1539
09-30-2021
STEVEN MELEIKA, Plaintiff, v. MONROE COUNTY, Defendant.
Judge Mannion
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE
I. Factual Background
This lawsuit comes before us for a second legally mandated screening review of the pro se plaintiff's amended complaint. (Doc. 7). On September 8, 2021, the plaintiff, Steven Meleika, filed a cryptic complaint, which alleged in a summary fashion that his Fourth, Eighth, and Fourteenth Amendment rights have been violated by Monroe County. (Doc. 1). This original complaint was plainly deficient. For example, beyond labeling his claim as one for false arrest and malicious prosecution, Meleika provided only the following spare narrative to support this claim: “warrant for plaintiff arrest for failure to appear and possibly revocation of bail violating his right to a fair trial.” (Id.) On the basis of this cursory recital, Meleika demanded “significant monetary damages $7,000,000.” (Id.)
Upon review of this pleading, we directed that the lodged complaint be filed on the docket for screening purposes and conditionally granted the plaintiff's motion for leave to proceed in forma pauperis. However, we recommended that the complaint be dismissed since the complaint failed to meet federal pleading standards on several scores. However, mindful of the fact that in civil rights cases pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed in its entirety, see Fletcher-Hardee Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007), unless granting further leave to amend is not necessary in a case such as this where amendment would be futile or result in undue delay, Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004), we also recommended that the Court provide the plaintiff with an opportunity to correct these deficiencies in the pro se complaint by dismissing this deficient complaint without prejudice to one final effort by the plaintiff to comply with the rules governing civil actions in federal court. (Doc. 6).
The district court has adopted this Report and Recommendation and referred this case to the undersigned for consideration of any amended complaint Meleika might file. (Doc. 9). Concurrently Meleika has filed a document styled as an amended complaint. (Doc. 7). If anything, this amended complaint is less intelligible than Meleika's original complaint. The amended complaint consists of a two-page diatribe, decrying the effects of the COVID-19 pandemic on court business, coupled with an incomprehensible reference to the Twenty Fifth Amendment to the United States Constitution, and a revised demand of $700,000 to $1,400,000 in damages. (Id.)
While Meleika's amended complaint is completely opaque and devoid of well-pleaded facts, his cryptic references to a bench warrant leads us to surmise that Meleika is dissatisfied with proceedings in an on-going state criminal case, Commonwealth v Meleika, CP-45-CR-0001887-2020. Court records in this state case disclose that Meleika has been charged with state firearms offenses and is awaiting trial scheduling. The court docket also indicates that at one time a bench warrant issued for Meleika, although it appears that this warrant was later withdrawn.
Upon consideration of this amended complaint, for the reasons set forth below, it is recommended that this case now be dismissed with prejudice.
II. Discussion
A. Screening of Pro Se Complaints-Standard of Review
This Court has an ongoing statutory obligation to conduct a preliminary review of pro se complaints brought by plaintiffs given leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B)(ii). Specifically, we are obliged to review the complaint to determine whether any claims are frivolous, malicious, or fail to state a claim upon which relief may be granted. This statutory text mirrors the language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
With respect to this benchmark standard for 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 556 U.S. 662, 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, “[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 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. Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to “show” such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, [ ] “stops short of the line between possibility and plausibility of ‘entitlement of relief.'”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. Denied, 132 S.Ct. 1861 (2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id.Santiago v. Warminster Tp., 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.
It is against the legal benchmarks that we assess the sufficiency of this amended complaint and, for the reasons set forth below, find that the amended complaint should be dismissed.
B. Meleika's Amended Complaint Continues to Fail to State a Claim Upon Which Relief May Be Granted.
Despite our efforts to counsel the plaintiff on the elements of a proper civil complaint in federal court, Meleika's amended complaint still fails on a number of scores as discussed below.
1. The Amended Complaint Violates Rule 8.
At the outset, dismissal of this amended complaint is warranted because this pleading still does not 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, supra; Scibelli v. Lebanon County, supra; 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. at 110 (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., 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, 2006 WL 446071 (E.D. Pa. Feb. 21, 2006) (dismissing illegible complaint).
Here, Meleika's amended complaint, like his original complaint, contains no well-pleaded facts. Thus, it would leave the court and any defendant “having to guess what of the many things discussed constituted [a cause of action], ” Binsack, 438 Fed.Appx. at 158. Therefore, Meleika's amended complaint does precisely what Rule 8 forbids. Accordingly, the amended complaint should be dismissed.
2. The Amended Complaint Fails to Allege a Claim of Institutional Liability.
Moreover, to the extent that Meleika continues to seek to hold an institutional defendant, Monroe County, liable for alleged civil rights violations, his amended complaint must meet an exacting burden of pleading and proof. It is well-settled that local governmental entities may not be held liable under § 1983 for the acts of others under a theory of respondeat superior or vicarious liability. Ashcroft v. Iqbal, 556 U.S. 662 (2009); see also Colburn v. Upper Darby Twp., 946 F.2d 1017, 1027 (3d Cir. 1991). Instead, such an agency may only be held liable “when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).
Thus, to sustain a claim against this institutional defendant, a plaintiff must “identify a . . . ‘policy' or ‘custom' that caused the plaintiff's injury.” Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997). This custom must be “so widespread as to have the force of law.” Id. at 404; see also Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (a policy is an official proclamation or edict of a municipality, while a custom is a practice that is “so permanent and well settled as to virtually constitute law”) (quoting Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990)) (citations omitted). The plaintiff must further “allege that a ‘policy or custom' of [the defendants] was the ‘moving force' behind the [constitutional] violation.” Grayson v. Mayview State Hosp., 293 F.3d 103, 107 (3d Cir. 2002) (citing Brown, 520 U.S. at 404). A municipality can be held liable on the basis of failure to train when “that failure amounts to ‘deliberate indifference . . . [of the constitutional] rights of persons. . . .'” Woloszyn v. County of Lawrence, 396 F.3d 314, 324 (3d Cir. 2005) (citations omitted). There must also be a causal nexus, in that the “identified deficiency in [the] training program must be closely related to the ultimate [constitutional] injury.” Id. at 325 (quotations and citations omitted).
Therefore, analysis of a claim under Monell requires separate analysis of two distinct issues: “(1) whether plaintiff's harm was caused by a constitutional violation, and (2) if so whether the [municipality] is responsible for that violation.” Collins v. City of Harker Heights, Texas, 503 U.S. 115, 120 (1992).
Here, this amended complaint simply does not set forth sufficient allegations that would permit a finding of institutional liability against Monroe County. With respect to these institutional liability claims, 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.” Twombly, 550 U.S. at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. Fairly construed, these pleadings do not even amount to little more than a formulaic recitation of the elements of a cause of action, a form of pleading that will not do. Therefore, Meleika's claims against this institutional defendant continue to fail as a matter of law.
3. Meleika May Not Bring a Malicious Prosecution Claim at This Time.
In addition, to the extent that it can be understood, the gravamen of Meleika's amended complaint seems to be a claim of malicious prosecution. Yet it is clear that Meleika's state case remains pending at this time. Therefore, this amended complaint fails because it rests on a fatally flawed legal premise. At bottom, the plaintiff seeks to bring a civil rights action premised on claims of malicious prosecution without showing that his state criminal case has been resolved in a fashion that is favorable to him.
This he cannot do.
Quite the contrary, it is well-settled that an essential element of a civil rights malicious prosecution claim is that the underlying criminal case must have been terminated in favor of the civil rights claimant. Therefore, where, as here, the civil rights plaintiff brings a malicious prosecution or false arrest claim in a setting where he has not achieved a favorable outcome in the underlying state case, the plaintiff's claim fails as a matter of law. The Third Circuit has aptly observed in this regard:
The Supreme Court has “repeatedly noted that 42 U.S.C. § 1983 creates a species of tort liability.” Heck v. Humphrey, 512 U.S. 477, 483, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (quoting Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986) (internal quotation marks omitted)). Given this close relation between § 1983 and tort liability, the Supreme Court has said that the common law of torts, “defining the elements of damages and the prerequisites for their recovery, provide[s] the appropriate starting point for inquiry under § 1983 as well.” Heck, 512 U.S. at 483 (quoting Carey v. Piphus, 435 U.S. 247, 257-58, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)). The Supreme Court applied this rule in Heck to an inmate's § 1983 suit, which alleged that county prosecutors and a state police officer destroyed evidence, used an unlawful voice identification procedure, and engaged in other misconduct. In deciding whether the inmate could state a claim for those alleged violations, the Supreme Court asked what common-law cause of action was the closest to the
inmate's claim and concluded that “malicious prosecution provides the closest analogy ... because unlike the related cause of action for false arrest or imprisonment, it permits damages for confinement imposed pursuant to legal process.” Heck, 512 U.S. at 484. Looking to the elements of malicious prosecution, the court held that the inmate's claim could not proceed because one requirement of malicious prosecution is that the prior criminal proceedings must have terminated in the plaintiff's favor, and the inmate in Heck had not successfully challenged his criminal conviction. Id.Hector v. Watt, 235 F.3d 154, 155-56 (3d Cir.2000).
Thus, “our precedents are clear that § 1983 plaintiffs alleging arrest and prosecution absent probable cause may bring malicious prosecution claims under the Fourth Amendment but are entitled to relief only if they are innocent of the crime for which they were prosecuted.” Washington v. Hanshaw, 552 Fed.Appx. 169, 173 (3d Cir. 2014) (citing Hector, 235 F.3d at 156). Therefore, “a plaintiff claiming malicious prosecution must prove actual innocence as an element of his prima facie case.” Steele v. City of Erie, 113 Fed.Appx. 456, 459 (3d Cir. 2004).
In this case, it is evident from the amended complaint and uncontroverted state court records that this state criminal prosecution did not terminate favorably for the plaintiff since he is awaiting trial on these pending charges. In the absence of a favorable termination of the state criminal case, this federal civil rights malicious prosecution lawsuit cannot proceed. In short, this amended complaint is based upon the fundamentally flawed legal premise that the plaintiff can sue the state for malicious prosecution even though he has not prevailed in the underlying state case. Since this premise is simply incorrect, this amended complaint fails as a matter of law and should be dismissed. See Galloway v. Kane, No. 1:15-CV-1007, 2015 WL 3953112, at *5-6 (M.D. Pa. June 29, 2015).
4. The Twenty Fifth Amendment Does Not Provide for a Right Cause of Action.
Further, a particularly puzzling aspect of this amended complaint is its enigmatic reference to the Twenty Fifth Amendment to the United States Constitution. This constitutional provision sets forth procedures for succession to the Presidency in the event of removal of, or disability on the part of, a sitting President. U.S. Const. amend. XXV. The Twenty Fifth Amendment has no legal, logical or factual relationship to Meleika's case, has no application to the state courts, and provides for no private right of action against state or county agencies. Accordingly, to the extent that Meleika relies upon the Twenty Fifth Amendment to state a claim in this case, he errs.
5. Meleika's Prayer for Relief is Improper.
We had previously notified Meleika that the demand in his original complaint for specified compensatory damages from the defendants in the amount of $7,000,000 was inappropriate. As we explained, the plaintiff's claim for a specified amount of unliquidated damages violated Local Rule 8.1 which provides, in part, that:
The demand for judgment required in any pleading in any civil action pursuant to Fed.R.Civ.P. 8(a)(3) may set forth generally that the party claiming damages is entitled to monetary relief but shall not claim any specific sum where unliquidated damages are involved. The short plain statement of jurisdiction, required by Fed.R.Civ.P. 8(a)(1), shall set forth any amounts needed to invoke the jurisdiction of the court but no other.Local Rule 8.1 (emphasis added). Since this prayer for relief violated Local Rule 8.1 by specifying a particular amount of unliquidated damages, we further recommended that this specific dollar claim be stricken from the complaint.
Meleika has apparently confused this clear admonition that such demands for a specified amount of unliquidated damages are improper as an invitation for negotiation, since he now alleges a different, lower, but equally improper amount of unliquidated damages-$700,000 to $1,400,000. Meleika should understand that any such damages claim violates the local rules of this court and must be stricken.
6. The Amended Complaint Should Be Dismissed With Prejudice.
In sum, Meleika's amended complaint remains flawed on multiple scores that cannot be corrected through some form of more artful pleading. While pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed in its entirety, see Fletcher-Hardee Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007), unless granting further leave to amend is not necessary in a case such as this where amendment would be futile or result in undue delay, Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004), in this case we afforded Meleika leave to amend, but to no avail. This amended complaint still fails to state a claim upon which relief may be granted and it is now clear that granting further leave to amend would be futile and lead to undue delay. Therefore, it is recommended that this amended complaint be dismissed with prejudice.
III. Recommendation
Accordingly, for the foregoing reasons IT IS RECOMMENDED that the plaintiff's amended complaint be dismissed with prejudice.
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.