Opinion
Civil No. 4:20-CV-2208
11-30-2020
DANNY MERTSOCK, Plaintiff v. POTTER COUNTY DISTRICT ATTORNEY'S OFFICE, et al., Defendants.
(Judge Brann)
( ) REPORT AND RECOMMENDATION
I. Factual Background
Danny Mertsock apparently is awaiting trial on stalking and harassment charges in the Court of Common Pleas of Potter County. Commonwealth v. Mertsock, CP-53-CR-000346-2019. Mertsock has now filed a pro se complaint that has been transferred to the court for our consideration, (Doc. 1-1), along with a motion seeking leave to proceed in forma pauperis. (Doc. 7).
Mertsock's complaint demands a great deal from the reader. It consists of a single-page, one-paragraph pleading that describes Mertsock's displeasure with the pending case in a fashion that lacks content, context, or factual continuity. Thus, it is difficult to discern who all of the defendants may be, or what acts they have taken that may constitute a federal civil rights violation. Mertsock then seems to seek wide- ranging equitable relief, including recusal of the prosecutors from his case, along with $2,000,000 in damages. (Doc. 1-1).
For the reasons set forth below, we will direct that the lodged complaint be filed on the docket for screening purposes only, will conditionally GRANT leave to proceed in forma pauperis, but recommend that this complaint be dismissed.
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, 127 S. Ct. 1955, 167 L.Ed.2d
929 (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.
Two years after Fowler, the Third Circuit further 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).
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 Twp., 629 F.3d 121, 130 (3d Cir. 2010).
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.
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. This Complaint Fails as a Matter of Law.
In its current form, this complaint fails as a matter of law for a host of reasons, as described below.
1. The Complaint Violates Rule 8.
At the outset, dismissal of this complaint is warranted because 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." 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,' and that each averment be 'concise, and direct.'" Scibelli v. Lebanon Cnty., 219 F. App'x 221, 222 (3d Cir. 2007) (quoting Fed. R. Civ. P. 8(a)(2), (e)(1)). 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 F. App'x 785, 787 (3d Cir. 2007), an order dismissing a complaint under Rule 8 is clearly appropriate. See, e.g., Mincy v. Klem, 303 F. App'x 106 (3d Cir. 2008); Rhett v. New Jersey State Superior Court, 260 F. App'x 513 (3d Cir. 2008); Stephanatos, 236 F. App'x 785; Scibelli, 219 F. App'x 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 Cnty. Prison, 438 F. App'x 158, 160 (3d Cir. 2011), or when the complaint is so "rambling and unclear" as to defy response. Tillio v. Spiess, 441 F. App'x 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.' Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (quotations omitted)." Tillio v. Spiess, 441 F. App'x at 110; Tillio v. Northland Grp. Inc., 456 F. App'x 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 F. App'x 335 (3d Cir. 2009) (dismissing illegible complaint); Radin v. Jersey City Medical Center, 375 F. App'x 205 (3d Cir. 2010); Earnest v. Ling, 140 F. App'x 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.A. 05-5509 (MLC), 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.A. 06-0130, 2006 WL 446071 (E.D. Pa. Feb. 21, 2006) (dismissing illegible complaint).
These principles are applicable here and compel the dismissal of this complaint in its current form. Mr. Mertsock's complaint lacks identifiable parties, coherent factual averments, and a comprehensible prayer for relief. Consequently, the complaint leaves "defendants having to guess what of the many things discussed constituted [a cause of action]." Binsack, 438 F. App'x at 160. In this setting, where a complaint is fatally ambiguous, Rule 8 compels dismissal of the complaint in its entirety.
In the first instance, Rule 8 dismissals are often entered without prejudice to allowing the litigant the opportunity to amend and cure any defects. See, e.g., Rhett, 260 F. App'x 513; Stephanatos, 236 F. App'x 785; Scibelli, 219 F. App'x 221.
2. The Plaintiff May Not Sue the Police Department.
In addition, to the extent that the complaint brings a claim against the Shinglehouse Borough Police Department, we note that this police department is not a proper institutional defendant in this action since police departments serve only as an administrative arm of a municipality, and it is a municipality through which any liability must flow to the police department. Indeed, it has been repeatedly held that a police department is not a "person" for purposes of § 1983 and therefore is not a proper defendant in a § 1983 action. Blackwell v. Middletown Borough Police Dep't, 1:12-CV-825, 2012 WL 6012568 (M.D. Pa. Nov. 16, 2012), report and recommendation adopted, 1:12-CV-825, 2012 WL 6002689 (M.D. Pa. Nov. 30, 2012); see Golya v. Golya, 2007 U.S. Dist. LEXIS 58093, *29-30 (M.D. Pa. Aug. 9, 2007) (explaining that courts within the Third Circuit have concluded that a police department is merely a sub-unit of the local government and is not amenable to suit under § 1983); Wivell v. Liberty Twp Police Dep't, 2007 U.S. Dist. LEXIS 54306, *5-6 (M.D. Pa. July 26, 2007) (explaining that police department not subject to suit in a § 1983 action); Mitros v. Cooke, 170 F. Supp. 2d 504, 507 (E.D. Pa. July 24, 2001) (noting that city police department is a sub-unit of the city government that is merely a vehicle through which the city fulfills its policing functions, and is not a separate entity for purposes of suit); Tobin v. Badamo, 3:00CV783, 2000 WL 1880262 (M.D. Pa. Dec. 20, 2000) (municipal police department is not a proper party to a section 1983 action because it is merely a subunit of the city and not a separate corporate entity); McMahon v. Westtown-East Goshen Police Dep't, No. Civ.A. 98-3919, 1999 WL 236565at *4 (E.D. Pa. Apr. 22, 1999) (citing Johnson v. City of Erie, 834 F. Supp. 873, 878-79 (W.D. Pa. Oct. 7, 1993)); Agresta v. City of Philadelphia, 694 F. Supp. 117, 119 (E.D. Pa. Aug. 23, 1988)); Johnson v. City of Erie, 834 F. Supp. 873, 879 (W.D. Pa. Oct. 7, 1993).
In light of this consistent case law rejecting efforts to name local departments as institutional defendants in § 1983 actions, it is recommended that any claims against this institutional defendant also be dismissed.
3. Younger Abstention Applies Here.
Further, the complaint also seemingly invites us to issue an injunction in this pending state case, directing the recusal of the prosecutors in this state case. To the extent that this complaint invites this court to enjoin aspects of a pending state case, this pro se pleading runs afoul of a settled tenet of federal law, the Younger abstention doctrine.
The Younger abstention doctrine is inspired by basic considerations of comity that are fundamental to our federal system of government. As defined by the courts: "Younger abstention is a legal doctrine granting federal courts discretion to abstain from exercising jurisdiction over a claim when resolution of that claim would interfere with an ongoing state proceeding." Kendall v. Russell, 572 F.3d 126, 130 (3d Cir. 2009) (citing Younger v. Harris, 401 U.S. 37, 41 (1971) ("[W]e have concluded that the judgment of the District Court, enjoining appellant Younger from prosecuting under these California statutes, must be reversed as a violation of the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances")).
This doctrine, which is informed by principles of comity, is also guided by these same principles in its application. As the Third Circuit has observed:
"A federal district court has discretion to abstain from exercising jurisdiction over a particular claim where resolution of that claim in
federal court would offend principles of comity by interfering with an ongoing state proceeding." Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 408 (3d Cir. 2005) (citing Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)). As noted earlier, the Younger doctrine allows a district court to abstain, but that discretion can properly be exercised only when (1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to raise federal claims. Matusow v. Trans-County Title Agency, LLC, 545 F.3d 241, 248 (3d Cir. 2008).Kendall, 572 F.3d at 131.
Once these three legal requirements for Younger abstention are met, the decision to abstain rests in the sound discretion of the district court and will not be disturbed absent an abuse of that discretion. Lui v. Comm'n on Adult Entm't Establishments, 369 F.3d 319, 325 (3d Cir. 2004). Moreover, applying these standards, federal courts frequently abstain from hearing requests for injunctive relief which necessarily interfere with on-going state criminal cases. Id.; Zahl v. Harper, 282 F.3d 204 (3d Cir. 2002).
In this case, the plaintiff's pro se complaint reveals that all of the legal prerequisites for Younger abstention are present here with respect to those claims that seek to enjoin an ongoing state case. First, it is evident that there are state proceedings in this case. Second, it is also apparent that those proceedings afford Mertsock a full and fair opportunity to litigate some of the issues raised in this lawsuit in the state case. See Sullivan v. Linebaugh, 362 F. App'x 248, 249-50 (3d Cir. 2010). Finally, it is clear that the state proceedings implicate important state interests, since these matters involve state criminal law enforcement, an issue of paramount importance to the state. See, e.g., Lui, 369 F.3d 319; Zahl, 282 F.3d 204.
Since the legal requirements for Younger abstention are fully met here, the decision to abstain from addressing these requests for injunctive relief rests in the sound discretion of this Court. Lui, 369 F.3d at 325. Given the important state interest in enforcement of its criminal laws and recognizing that the state courts are prepared to fully address the merits of these matters, we believe that the proper exercise of this discretion weighs in favor of abstention and dismissal of these requests for injunctive relief. Lui, 369 F.3d 319; Zahl, 282 F.3d 204.
4. The District Attorneys Named in This Lawsuit are Entitled to Immunity from Lawsuit.
Furthermore, in this complaint, Mertsock seeks to hold the district attorneys who are prosecuting him personally liable to him for damages. To the extent that the plaintiff seeks in this complaint to hold prosecutors personally liable for civil rights violations, it is well-settled that these officials are individually cloaked with immunity from liability. The United States Supreme Court has long recognized that those officials performing judicial, quasi-judicial, and prosecutorial functions in our adversarial system must be entitled to some measure of protection from personal liability for acts taken in their official capacities. In order to provide this degree of protection from liability for judicial officials, the courts have held that judges, Mireless v. Waco, 502 U.S. 9, 13 (1991); prosecutors, Imbler v. Pachtman, 424 U.S. 409, 427 (1976); and those who perform adjudicative functions, Imbler, 424 U.S. at 423 n. 20 (grand jurors); Harper v. Jeffries, 808 F.2d 281, 284 (3d. Cir. 1986) (parole board adjudicators); are entitled to immunity from personal liability for actions they take in our adversarial system of justice.
Thus, it is beyond dispute that a criminal defendant may not sue prosecutors for their act of filing charges against him since such conduct is cloaked in immunity from civil liability. The immunity conferred upon prosecutors for the quasi-judicial act of filing and bringing criminal charges is broad and sweeping:
[T]he Supreme Court [has] held that state prosecutors are absolutely immune from liability under § 1983 for actions performed in a quasi-judicial role. This immunity extends to acts that are "intimately associated with the judicial phase of the criminal process," such as "initiating a prosecution and ... presenting the State's case." Court has noted numerous public policy considerations underlying its extension of absolute immunity to prosecutors: [S]uits against prosecutors for initiating and conducting prosecutions "could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State's advocate"; lawsuits would divert prosecutors' attention and energy away from their important duty of enforcing the criminal law; prosecutors would have more difficulty than other officials in meeting the standards for qualified immunity; and potential liability "would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system." ... [T]here are other checks on prosecutorial misconduct, including the criminal law and professional discipline.Yarris v. Cnty. of Delaware, 465 F.3d 129, 135 (3d Cir. 2006) (citations omitted).
Here, to the extent that it can be understood, we find that this complaint largely seeks to hold prosecutors personally liable for their act of prosecuting him. Since these officials are immune from personal, individual liability for their actions in bringing this criminal case, the claims against these defendants should also be dismissed.
5. Mertsock May Not Bring a Civil Rights Action for Malicious Prosecution Until the State Case Has Been Resolved in a Fashion That is Favorable to the Plaintiff.
Finally, this complaint fails because it rests on a yet another 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 was 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 Cmty. 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, 155-156 (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 F. App'x 169, 173 (3d Cir. 2014) (citing Hector v. Watt, 235 F.3d 154, 156 (3d Cir. 2000)). Therefore, "a plaintiff claiming malicious prosecution must prove actual innocence as an element of his prima facie case." Steele v. City of Erie, 113 F. App'x 456, 459 (3d Cir. 2004).
In this case, it is evident that this state criminal prosecution did not terminate favorably for the plaintiff since record records reveal that this case remains pending. In the absence of such a favorable termination of the state criminal case, this federal civil rights malicious prosecution lawsuit cannot proceed. In short, this 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 complaint fails as a matter of law. See Galloway v. Kane, No. 1:15-CV-1007, 2015 WL 3953112, at *5-6 (M.D. Pa. June 29, 2015).
We recognize 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 would be futile or result in undue delay. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, the plaintiff's complaint is, on its face, fundamentally flawed in multiple and profound ways that cannot be remedied. Since these pro se pleadings do not contain sufficient factual recitals to state a claim upon which relief may be granted, these allegations should be dismissed under 28 U.S.C. § 1915 and Rule 12(b)(6) of the Federal Rules of Civil Procedure. Moreover, since the factual and legal grounds proffered in support of the complaint make it clear that the plaintiff has no right to relief, granting further leave to amend would be futile or result in undue delay. Alston, 363 F.3d at235. Therefore, it is recommended that this action be dismissed without further leave to amend.
III. Recommendation
Accordingly, for the foregoing reasons, the plaintiff is conditionally GRANTED leave to proceed in forma pauperis (Doc. 7) but IT IS RECOMMENDED that the plaintiff's complaint be dismissed.
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.
Submitted this 30th day of November 2020.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge