Opinion
Civil Action 4:20-CV-110
08-02-2022
DEVIN RICHARDSON, Plaintiff v. DR. L. MURRY, et al., Defendants
MANNION, D.J.
REPORT AND RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
Devin Richardson believes that he was forced to modify his religious beliefs when he had to shake an unrelated woman's hand at his Residential Drug Treatment Program graduation at a federal prison. The Government contends his claim fails both procedurally and substantively. I disagree, so I RECOMMEND that Dr. Murray's Motion for Summary Judgment be DENIED.
II. FACTUAL BACKGROUND & PROCEDURAL HISTORY
Devin Richardson (“Plaintiff” or Mr. Richardson) began this pro se, in forma pauperis civil suit on January 21, 2020 by filing a Complaint against DAP-C Dr. L. Murray and FCI Chaplain Adekola. (Doc. 1). The Court screened Plaintiff's complaint and dismissed Chaplain Adekola from this action. (Doc. 11). Thus, the only remaining claims are against Dr. Murray (“Defendant”).
I will follow the Defendant's spelling of her name (Dr. Murray) instead of Plaintiff's spelling (Dr. Murry).
The facts come mainly from the Parties' Statement of Facts. However, some facts come from the Complaint, (Doc. 1), and from Plaintiff's sworn affidavit. (Doc. 272, pp. 7-8). The facts are not contested by either party unless otherwise stated.
Plaintiff was incarcerated at Federal Correctional Institute, Schuykill (“FCI-Schuykill”), and in January 2017, he was about to finish the prison's Residential Drug Abuse Program (“RDAP”). (Doc. 1, p. 2); (Doc. 25, ¶ 12). The program is voluntary, but inmates who complete the program may receive time off from their sentences. (Doc. 25 ¶¶ 9-10). As part of the RDAP graduation, inmates are asked to shake hands with the staff, which includes women. (Doc. 25, ¶¶ 6,12); (Doc. 1, p. 2). Prison staff believe that shaking hands is “an integral and symbolic portion of the [RDAP] transition ceremony ....” (Doc. 25, ¶ 6). Plaintiff contends that inmates who refuse to shake hands with female staff members during the RDAP graduation, even if abstaining for religious purposes, suffer disciplinary action. (Doc. 27-2, pp. 8-9 citing (Doc. 27-2, pp. 11-12)).
Plaintiff follows Islam, and he believes that his religion forbids him from shaking hands with unrelated women. (Doc. 30, p. 7). According to Plaintiff, on January 2, 2017, he spoke to DTS Beachel about his concerns about shaking the hand of unrelated women at the upcoming RDAP graduation. (Doc. 27-2, p. 7). According to Plaintiff, DTS Beachel “ordered that he file an administrative grievance.” (Id.). On January 6, 2017, Plaintiff filed an administrative grievance regarding his religious beliefs, and his desire to refrain from shaking an unrelated woman's hand. (Doc. 25, ¶ 8); (Doc. 1, p. 2); (Doc. 14-3, ¶ 2). Following this, Dr. Murray informed Plaintiff that she spoke to Chaplain Adekola, who told her that it was permissible in Islam to shake hands with unrelated women. (Doc. 25, ¶ 8); (Doc. 27-2, p. 8). However, Plaintiff contends that he spoke to Chaplain Adekola, and the Chaplain explained “that he informed Dr. [Murray] he could not tell deponent that his religious views where [sic] right or wrong.” (Doc. 27-2, p. 8).
Thus, Dr. Murray denied Plaintiff's administrative grievance, and according to Dr. Murray, Mr. Richardson did not appeal that decision. (Doc. 25, ¶ 1). Further, according to Dr. Murray, Plaintiff did not file a New and Unfamiliar Component form with the BOP. (Id. at ¶ 7). Inmates who request to exclude him or herself from “an activity that affects institutional programs or operations requires the inmate to complete a New and Unfamiliar Religious Components form ....” (Id. at ¶ 4).
On January 17, 2017, Plaintiff graduated from RDAP. (Doc. 25, ¶ 12). Plaintiff shook hands with female prison staff at the RDAP transition ceremony. (Doc. 27-2, p. 8).
B. PROCEDURAL HISTORY
Plaintiff filed his Complaint (Doc. 1) on January 21, 2020. In his Complaint, Plaintiff names Dr. Murray and Chaplain Adekola as defendants. (Doc. 1, p. 1). Based on the aforementioned facts, Plaintiff asserts that the defendants violated his rights under the First Amendment Free Exercise Clause and the Religious Freedom Restoration Act (“RFRA”). (Id. at pp. 2-3.) In his Complaint, Plaintiff seeks $5,000,000 in damages from Dr. Murray and $1,500,000 in damages from Chaplain Adekola. (Id.).
Following a statutorily mandated screening, I recommended to District Judge Malachy E. Mannion that the Court dismiss the First Amendment Free Exercise claim against Dr. Murray, and all claims against Chaplain Adekola. (Doc. 9). In that Report and Recommendation, I erroneously interpreted Plaintiff's claims as a Religious Land Use and Institutionalized Persons Act (“RLUIPA”) claim instead of a RFRA claim. (Id.). I recommended that a RLUIPA claim be allowed to proceed. (Id.). Plaintiff did not file any objections to my R&R, and Judge Mannion adopted it in full. (Doc. 11). Thus, the Complaint was served on Dr. Murray.
RFRA prohibits the Government from “substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability, [unless the Government can show that the burden] (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1. RFRA was found to be unconstitutional as applied to the states. City of Boerne v. Flores, 521 U.S. 507 (1997). In response, Congress passed RLUIPA, which only applies to states in the areas of land use and incarceration. Thus, RFRA applies to the federal government, and RLUIPA applies to the states.
On December 14, 2021, the United States of America, as an interested party, filed a Motion to Dismiss. (Doc. 17). The United States argued that RLUIPA does not apply to federal actors, so the case should be dismissed. (Doc. 18, p. 1). Plaintiff vigorously opposed the Motion, stating that he asserted a RFRA claim, not a RLUIPA claim. (Doc. 21-1, pp. 9-10). Acknowledging this mistake, I asked the parties to submit supplemental briefing on Plaintiff's RFRA claim. (Doc. 23). Instead, on May 18, 2022, Dr. Murray filed a Motion for Summary Judgment. (Doc. 24). Her Brief in Support, (Doc. 26), and Statement of Facts, (Doc. 25), were filed the same day. On June 21, 2022, Plaintiff filed his Brief in Opposition. (Doc. 27). On July 18, 2022, Plaintiff filed his Statement of Facts. (Doc. 30). On June 30, 2022, Dr. Murray filed a Reply Brief. (Doc. 28). Thus, thus Motion is ripe for decision.
III. THE SUMMARY JUDGMENT STANDARD
We will examine the motion for summary judgment under a well-established standard. Rule 56(a) of the Federal Rules of Civil Procedure provides as follows:
A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.Fed. R. Civ. P. 56(a). For purposes of Rule 56, a fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Haybarger v. Laurence Cnty. Adult Prob. & Parole, 667 F.3d 408, 412 (3d Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). For an issue to be genuine, “all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Id. (quoting Anderson, 477 U.S. at 248-49).
In adjudicating a summary judgment motion, the court must view the evidence presented in the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the nonmoving party, Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). When the non-moving party's evidence contradicts that advanced by the movant, then the non-movant's must be taken as true. Big Apple BMW, 974 F.2d at 1363 .
Provided the moving party has satisfied its burden, “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). Instead, if the moving party has carried its burden, the non-moving party must then respond by identifying specific facts, supported by evidence, that show a genuine issue for trial, and it may not rely upon the allegations or denials of its pleadings. See Martin v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007); see also Fed.R.Civ.P. 56(c). A non-moving party's failure to show a genuine issue of material fact for even one essential element of a claim after the moving party has met its burden renders all other facts immaterial, and it is enough to permit summary judgment for the moving party. See Celotex, 477 U.S. at 323. Further, once a moving party's burden has been met, a non-moving party's attack on settled legal precedent is also insufficient unless there is a significant justification for the opposition to precedent. See Bucklew v. Precythe, 139 S.Ct. 1112, 1126, 1134 (2019).
Once the evidence is gathered, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations. See Anderson, 477 U.S. at 252. It instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Id.; see also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third Circuit has instructed:
To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In practical terms, if the opponent has exceeded the “mere scintilla” threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. It thus remains the province of the factfinder to ascertain the believability and weight of the evidence.Big Apple BMW, 974 F.2d at 1363 . In contrast, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted); NAACP v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011).
IV. DISCUSSION
Dr. Murray argues that (1) Plaintiff failed to exhaust his administrative remedies and (2) that he “failed to show shaking a woman's hand at the RDAP ceremony substantially burdened his ability to freely exercise his religious belief.” (Doc. 26, p. 5). I'll discuss each in turn.
A. WHETHER PLAINTIFF EXHAUSTED HIS ADMINISTRATIVE REMEDIES
Dr. Murray argues that Mr. Richardson failed to comply with the Prison Litigation Reform Act of 1995 (“PLRA”) by failing to exhaust his administrative remedies. (Doc 26, pp. 6-8). Plaintiff counters that only prisoners have to comply with the PLRA and because Plaintiff was not a prisoner when he filed this Complaint, he is free of the PLRA's exhaustion requirement. (Doc. 27-1, p. 12). On this point, I agree with Plaintiff; the PLRA does not apply to this current action.
The PLRA requires a prisoner to exhaust available administrative remedies prior to filing an action challenging prison conditions in court. The PLRA provides:
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 are exhausted.42 U.S.C. § 1997e(a).
“Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Jones v. Bock, 549 U.S. 199, 204 (2007). “This has the potential to reduce Page 8 of the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record.” Id. Thus, the benefits of the exhaustion requirement “include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record.” Id. at 219. While the exhaustion requirement serves to alert prison officials to a problem, “notice to those who might later be sued . . . has not been thought to be one of the leading purposes of the exhaustion requirement.” Id.
In accordance with Section 1997e(a), the exhaustion of available administrative remedies is mandatory, Booth v. Churner, 532 U.S. 731, 739 (2001), and the “exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). A prisoner must “exhaust all available administrative remedies” regardless of whether the administrative process may provide the prisoner with the relief that he is seeking. Nyhuis v. Reno, 204 F.3d 65, 75 (3d Cir. 2000). “[C]ompliance with the administrative remedy scheme will be satisfactory if it is substantial.” Id. at 77. Failure to exhaust available administrative remedies is an affirmative defense. Jones, 549 U.S. at 216. As such, the defendant has the burden of pleading and proving that the prisoner failed to exhaust administrative remedies. Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). “But once the defendant has established that the inmate failed to resort to administrative remedies, the onus falls on the inmate to show that such remedies were unavailable to him.” Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018) (citing Tuckel v. Grover, 660 F.3d 1249, 1253 (10th Cir. 2011)).
However, “a prisoner who has been released is not precluded by the PLRA from filing a § 1983 suit for incidents concerning prison conditions which occurred prior to his release.” Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir. 2002). This is supported by the text of the PLRA, which mandates its exhaustion requirements only on any “prisoner confined in any jail, prison, or other correctional facility.” 42 U.S.C. § 1997e(a). The Court noted that every circuit who considered the issue at that time held that that the PLRA does not apply to a former prisoner. Ahmed, 297 F.3d at 210 n.10.
While the cause of action in Ahmed was based on Section 1983, I find no reason why Ahmed should not also apply to RFRA claims. See 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 are exhausted.”) (emphasis added).
As applied here, Mr. Richardson was released from FCI-Schuykill on February 5, 2018. (Doc. 25, ¶ 13). Almost two years later, he filed his Complaint on January 21, 2020. (Doc. 1). Thus, because Mr. Richardson started this action after he was released from prison, he did not have to exhaust his administrative remedies prior to filing suit.
B. MERITS OF PLAINTIFF'S RFRA CLAIM
Plaintiff asserts a cause of action under the Religious Freedom Restoration Act of 1993 (“RFRA”). 42 U.S.C. § 2000bb. Under the RFRA, the “Government shall not substantially burden a person's exercise of religion even if the burden results from a general rule of applicability,” unless the government can demonstrate that “the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1. Plaintiff bears the burden of pleading the elements of a prima facie case. Once a prima facie case has been established, the government bears the burden of showing a compelling interest that it used the least restrictive means to carry out that interest. Post v. Holt, No. 3:12-CV-1441, 2017 WL 3431921, at *11 (M.D. Pa. July 19, 2017). For an inmate to plead a plausible RFRA claim, he or she must allege facts that show the federal government substantially burdened a sincerely held religious belief. The Third Circuit has explained that a “substantial burden” exists where:
(1) a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise available to other inmates versus abandoning one of the precepts of his religion in order to receive a benefit; or
(2) the government puts substantial pressure on an adherent to substantially modify his behavior to violate his beliefs.Garraway v. Lappin, 490 Fed.Appx. 440, 444 (3d Cir. 2012) (quoting Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007)). The question of whether a burden is “substantial” is a question of law. Real Alternatives, Inc. v. Sec'y of HHS, 867 F.3d 338, 356 (3d Cir. 2017).
1. Mr. Richardson's Burden
It is Mr. Richardson's burden to show the following three elements to establish a prima facie RFRA claim: “(1) a substantial burden imposed by the federal government on a (2) sincere (3) exercise of religion.” Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001). Dr. Murray only challenges that first element: a substantial burden. To support this, Dr. Murray puts forth two arguments.
First, Dr. Murray argues that Plaintiff was not required to choose between his religion and obtaining the benefits of the RDAP program because Dr. Murray checked with an Islamic Chaplain, who explained to Dr. Murray that Mr. Richardson could shake hands with an unrelated woman without violating Islamic principles. (Doc. 25, p. 9-10). Dr. Murray contends that shaking hands with unrelated women is based only on Plaintiff's interpretation of Islam, so it follows that he was not substantially burdened because he did not have to choose between RDAP's graduation requirements and his religious beliefs. (Id.). In response, Plaintiff counters that he believes that Islam forbids such touching, and that Dr. Murray substantially burdened the exercise of his religion. (Doc. 27-1, pp. 7-8). On this point, I agree with Plaintiff, and reject Dr. Murray's argument.
At the outset, the Parties dedicate a non-trivial portion of their Briefs on debating what Islam requires and does not require. While Dr. Murray contends that she is only challenging the substantial burden element by challenging the validity of Plaintiff's belief, this type of argument is better framed as challenging Plaintiff's sincerity. But, “it isn't for judges to decide whether a claimant who seeks to pursue a particular religious exercise has ‘correctly perceived the commands of [his] faith' or to become ‘arbiters of scriptural interpretation.'” Yellowbear v. Lampert, 741 F.3d 48, 54-55 (10th Cir. 2014) (citing Thomas v. Review Bd. of Ind. Emp't Sec. Div., 450 U.S. 707, 716, (1981)); see also Ford v. McGinnis, 352 F.3d 582, 590 (2d Cir. 2003) (“We refused to evaluate the objective reasonableness of the prisoner's belief, holding that our ‘scrutiny extends only to whether a claimant sincerely holds a particular belief and whether the belief is religious in nature.'”); Forde v. Baird, 720 F.Supp.2d 170, 177 (D. Conn. 2010) (“Consequently, what matters here is that Forde sincerely believes that being pat searched by male correctional officers violates her understanding of the tenants of Islam. That Respondent presented evidence that this belief may not be universally held by all Muslims is without significance.”).
So, to any extent Dr. Murray wants the Court to find that Plaintiff has not faced a substantial burden based on dueling interpretations of Islam (Plaintiff's versus Chaplain's), the Court declines to do so. And to any extent Dr. Murray challenges the sincerity of Plaintiff's beliefs, it is a genuine dispute of material fact. See United States v. Zimmerman, 514 F.3d 851, 854 (9th Cir. 2007) (“The district court should hear directly from Zimmerman, as his credibility and demeanor will bear heavily on whether his beliefs are sincerely held.”). Thus, I reject Dr. Murray's first argument that is based solely on religious interpretation.
To many, a handshake seems like a common and uncontroversial occurrence. It might even be baffling to some that a handshake is at the center of a federal lawsuit. But for many individuals, following the precepts of their religion requires them to forgo handshaking, or any other contact. See Roni Caryn Rabin, Respecting Muslim Patients' Needs, N.Y. Times (Nov. 1, 2010) https://www.nytimes.com/2010/11/01/health/01patients.html (noting the difficulties medical professionals can have in examining Muslim patients have because of their beliefs on touching unrelated members of the opposite sex). And while some government officials or members of the public might think a handshake is de minimus contact, that's not the standard to apply. Instead, under RFRA, the only question is whether Plaintiff sincerely holds this religious belief.
Second, Dr. Murray argues that Plaintiff should have completed a New and Unfamiliar Practice form, “which would have been the proper procedure for him to request that he not shake hands with females.” (Id.). Thus, this failure, as Dr. Murray argues, shows that Plaintiff was not required to abandon his religious beliefs or was pressured to violate his religious beliefs. (Id.). Plaintiff does not specifically respond to this argument, but instead broadly asserts that Dr. Murray substantially burdened his religious beliefs. (Doc. 27-1, pp. 9-11). Again, I reject Defendant's argument.
Dr. Murray argues that she did not substantially burden Plaintiff's religious beliefs because he failed to fill out an administrative form. However, Defendant does not cite to any authority that establishes the failure to fill out a Bureau of Prisons (“BOP”) form means that Plaintiff essentially waived his RFRA claim. Perhaps Defendant is arguing that without the New and Unfamiliar Practice form, prison staff did not know of Plaintiff's beliefs. However, Defendant's own facts state that Dr. Murray and the Islamic Chaplain knew of Plaintiff's belief and his request for accommodations. (Doc. 25, ¶ 8). Therefore, I find any argument regarding this administrative form as unpersuasive.
After discussing Defendant's arguments, I will analyze whether Plaintiff has carried his burden in showing Defendant substantially burdened a sincere religious belief. He has.
First, based on this record, Plaintiff has shown that his beliefs were substantially burdened. If he did not shake hands with the RDAP female staff, he could have been held back from RDAP graduation, and possibly lose the benefits conferred by completing RDAP. (Doc. 27-2, ¶ 7). Plaintiff has submitted evidence that failing to shake hands, despite religious objections, can hinder one's graduation from RDAP. (Id.). Further, Defendant acknowledges that shaking hands is a condition of successfully graduating from RDAP. See (Doc. 25, ¶ 6 (“shaking hands [is] an integral and symbolic portion of [RDAP graduation]”)); (Doc. 25-3, ¶ 5 (sworn declaration of Chaplain Ramazan Aygyn stating that shaking hands is a RDAP program requirement)). The choice between shaking hands with unrelated women or adhere to one's beliefs, and possibly be held back from RDAP graduation is a substantial burden. This is especially true, as completing RDAP can lead to time off an inmate's sentence Therefore, Plaintiff has satisfied the first element of a prima facie RFRA claim.
Second, there is no genuine dispute of material fact that Plaintiff's belief is sincere, as Dr. Murray does not challenge the sincerity of Plaintiff's beliefs. Third, Plaintiff has shown that his belief on touching unrelated women is related to a religious belief, and Dr. Murray does not challenge that. So, in sum, I find that Plaintiff has carried his burden, and has set forth a prima facie RFRA claim.
And to the extent Dr. Murray does challenge the sincerity of Plaintiff's beliefs, it fails, as stated earlier in this section.
2. The BOP's Burden
Now that Plaintiff has made a threshold showing that his religious beliefs were substantially burdened, the BOP must show that it had a compelling interest and that it used the least restrictive means to carry out that interest. Post, 2017 WL 3431921, at *11.
Dr. Murray argues that it's the BOP's compelling interest to ensure that “all inmates follow institutional rules, policies, practices, and traditions,” and that shaking hands during the RDAP graduation is a “integral and symbolic portion of the transition ceremony.” (Doc. 26, p. 11). Additionally, Dr. Murray contends that because Mr. Richardson failed to file a New and Unfamiliar Practice form, the Government has met its burden in establishing a compelling interest and that it took the least restrictive method in curtailing that interest. (Id.). Plaintiff does not discuss this second element of a RFRA claim, but vigorously argues that Dr. Murray pressured him to choose between his religious beliefs and to receive the benefits of RDAP graduation.
Dr. Murray has not carried her burden. The only compelling interest that she has identified is the BOP's interest that all inmates follow “institutional rules, policies, practices, and traditions.” Articulating such a vague and broad interest cannot satisfy Dr. Murray's burden. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 438 (2006) (“[U]nder RFRA invocation of such general interests, standing alone, is not enough.”). Additionally, probably because the stated interest is so vague, Dr. Murray has submitted no evidence to justify its invocation of the interest. Finally, Dr. Murray has not specified how the wholesale rejection of any accommodation for Mr. Richardson was the least restrictive means to carry out the prison's interests.
Thus, the Government has not shown it had a compelling interest in this matter or that it took the least restrictive method in attending to its stated interest. V. RECOMMENDATION
Based on the foregoing, IT IS HEREBY RECOMMENDED that:
(1) Dr. Murray's Motion for Summary Judgment (Doc. 24) be DENIED.
(2) The United States of America's Motion to Dismiss (Doc. 17) be DENIED as MOOT.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that 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.