Opinion
CIVIL 1:22-CV-1503
09-28-2022
GREGORY L. SEWELL, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA, et al. Defendants.
Rambo, Judge
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE
I. Factual Background
This case, which comes before us for a legally mandated screening review of this pro se, in forma pauperis complaint, calls to mind Einstein's observation that doing the same thing over and over and expecting different results is the highest form of human folly. Gregory Sewell is a familiar pro se litigant, whose past unsuccessful forays in federal court have involved feckless efforts to sue state court judges who have displeased him. These efforts have in the past been emphatically rebuffed by the courts. Sewell v. Bowman, No. 1:15-CV-1849, 2015 WL 5997056, at *3 (M.D. Pa. Oct. 14, 2015). Nonetheless, undeterred Sewell chooses once again to follow this fruitless path and attempt to sue the state and a state magisterial district judge.
Sewell's current pro se complaint is a cryptic and inscrutable five-page document. (Doc. 1). In this pleading Sewell names a state magisterial district judge and the Commonwealth of Pennsylvania as defendants. (Id.). Sewell's pleading then contains the following enigmatic recital that makes no mention of these defendants: “United States is banktrupt [sic].” (Id., at 1-2). On the basis of this curious averment Sewell then demands that “the courts grant $100,000.00.” (Id.) The mysterious quality of this pleading is heightened by the attachments to Sewell's complaint, a copy of the magisterial district judge's oath of office and a 2019 notice of impending bench warrant issued to Sewell regarding some unpaid traffic fine. These documents are presented to us without any further explanation of their relevance to Sewell's claims.
Sewell has not paid the filing fee required by law and, therefore, apparently seeks leave to proceed in forma pauperis. (Doc. 2). We will conditionally GRANT Sewell leave to proceed in this fashion, but for the reasons set forth below we recommend that the complaint be dismissed.
II. Discussion
A. Screening Review of Pro Se Petitions - Standard of Review
This court has an on-going 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 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.
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. Sewell's Complaint as Pleaded Fails as a Matter of Law.
In its current form, Gregory Sewell's complaint fails as a matter of law for at least three reasons as described below.
1. The Complaint Violates Rule 8.
At the outset, this completely unintelligible complaint encounters a threshold legal obstacle. 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.” 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).
In this case, Sewell's complaint runs afoul of the basic requirements defined by Rule 8. In particular, Sewell's curious pleading style of naming certain defendants in the caption of the case, but not describing their conduct by name in the body of his pleading, and instead simply attaching enigmatic exhibits to the complaint in the apparent hope that we will be able to ferret out the elements of a cause of action against these defendants is legally insufficient to state a claim. See Walthour v. Child & Youth Servs., 728 F.Supp.2d 628, 636 (E.D. Pa. 2010) (dismissing claims against defendants only identified in exhibits attached to complaint). This cursory style of pleading is plainly inadequate to state a claim against the individual defendants and compels dismissal of these defendants. Hudson v. City of McKeesport, 244 Fed.Appx. 519 (3d Cir. 2007) (affirming dismissal of defendant who was only named in caption of case).
These basic pleading principles are applicable here and compel the dismissal of this complaint. The failure of the complaint to contain sufficient well-pleaded facts leaves many “defendants having to guess what of the many things discussed constituted [a cause of action].” Binsack, 438 Fed.Appx. 158. Therefore, Rule 8 also compels dismissal of the complaint in its entirety.
2. Sewell's Claims Against the Commonwealth Fail as a Matter of Law.
In addition, to the extent that Sewell may seek to recover damages from the Commonwealth of Pennsylvania in this lawsuit as a result of some state court proceedings, this complaint runs afoul of basic constitutional and statutory rules limiting lawsuits against states, state agencies, and officials. First, as a matter of constitutional law, the Eleventh Amendment to the Constitution provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the . . . States . . . .” U.S. Const. amend XI. By its terms, the Eleventh Amendment strictly limits the power of federal courts to entertain cases brought by citizens against the state and state agencies. Pursuant to the Eleventh Amendment, states, state agencies, and state officials who are sued in their official capacity are generally immune from lawsuits in federal courts brought against them by citizens. Seminole Tribe v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). The Commonwealth's immunity exists as a matter of law unless waived by the state, or expressly and unequivocally abrogated by Congress. To our knowledge, Congress has not expressly abrogated this constitutional immunity with respect to federal damages lawsuits against state courts and it is evident that the Commonwealth has not waived its immunity.
Quite the contrary, the Commonwealth has specifically by statute invoked its Eleventh Amendment immunity in 42 Pa. Cons. Stat. § 8521(b). While Pennsylvania has, by law, waived sovereign immunity in limited categories of cases brought against the Commonwealth in state court, see 42 Pa. Cons. Stat. § 8522, Section 8521(b) flatly states that: “Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States.” 42 Pa. Cons. Stat. § 8521(b). Absent an express waiver of the immunity established by the Eleventh Amendment, the state, state agencies, and their employees who are sued in their official capacities are absolutely immune from lawsuits in federal court. Moreover, as a matter of statutory interpretation the plaintiff cannot bring a damages action against the Commonwealth because it is well-settled that a state, a state agency, or a state official acting in an official capacity is not a “person” within the meaning of 42 U.S.C. § 1983. Will v. Michigan Dep't. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).
These state agencies, which enjoy immunity from lawsuit under the Eleventh Amendment, include the various county common pleas court agencies that are defined by statute as arms of the state courts, and, therefore, are institutions of state government. See, e.g., Benn v. First Jud. Dist. of Pa., 426 F.3d 233, 241 (3d Cir. 2005); Walters v. Washington Cty., No. 06-1355, 2009 WL 7936639 (W.D. Pa. March 23, 2009); Van Tassel v. Lawrence Cty. Domestics Relations Section, No. 09-266, 2009 WL 3052411 (W.D. Pa. Sept. 22, 2009). Therefore, the Eleventh Amendment to the United States Constitution forbids Sewell from maintaining a damages action against the Commonwealth of Pennsylvania in federal court, and the Commonwealth should be dismissed as a defendant in this case. Wright v. Northumberland Cty. Cts., No. 4:11-CV-2310, 2011 WL 6960974, at *3-4 (M.D. Pa. Dec. 15, 2011), report and recommendation adopted, No. 4:11-CV-2310, 2012 WL 32935 (M.D. Pa. Jan. 6, 2012).
3. Sewell May Not Sue A State Judge for Judicial Acts.
Finally, to the extent that Sewell is once again attempting to sue a state court judge for performing his judicial duties we remind Sewell of the legal guidance we previously provided to the plaintiff when we explained that:
Liberally construed, this pro se complaint seeks to hold the judges personally liable for alleged civil rights violations arising out of the performance ofjudicial acts. To the extent that the plaintiff seeks in this complaint to hold judges personally liable for civil rights violations, based upon an alleged failure to act favorably in ruling upon prior cases, it is well-settled that the judge is 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.
These longstanding common law immunities apply here and prevent Sewell from maintaining this civil action against the judges named in this complaint since these judges are entitled to judicial immunity for their actions in these prior proceedings and are absolutely immune from personal liability for any judicial acts. See, e.g., Arsad v. Means, 365 Fed.Appx. 327 (3d Cir.2010); Figueroa v. Blackburn, 208 F.3d 435 (3d Cir.2000). As we have explained when rejecting similar efforts to impose personal civil rights liability on a judge, this immunity is both broad and absolute:
“It is a well-settled principle of law that judges are generally ‘immune from a suit for money damages.' ” Figueroa v. Blackburn, 208 F.3d 435, 440 (3d Cir.2000) (quoting Mireles v. Waco, 502 U.S. 9, 9, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) (per curiam), and citing Randall v. Brigham, 74 U.S. 523, 536, 19 L.Ed. 285 (1868)). “The doctrine of judicial immunity is founded upon the premise that a judge, in performing his or her judicial duties, should be free to act upon his or her convictions without threat of suit for damages.” Id. (citations omitted). Therefore, “[a] judge is absolutely immune from liability for his [or her] judicial acts even if his [or her] exercise of authority is flawed by the commission of grave procedural errors,” Stump v. Sparkman, 435 U.S. 349, 359, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), and “[j]udicial immunity cannot be overcome by allegations of bad faith or malice” Goldhaber v. Higgins, 576 F.Supp.2d 694, 703 (W.D. Pa.2007). Such immunity can be overcome only where a judge's acts are nonjudicial in nature, or where such actions, while judicial in nature, are “taken in the complete absence of all jurisdiction.” Mireles, 502 U.S. at 12.
Catanzaro v. Collins, CIV. A. 09-922, 2010 WL 1754765 (M.D. Pa. Apr. 27, 2010), affd, 447 F. App'x. 397 (3d Cir.2011); Kwasnik v. Leblon, 228 F. App'x. 238, 243 (3d Cir.2007) (“A judicial officer in the performance of his or her duties has absolute immunity from suit. Mireles v. Waco, 502 U.S. 9, 12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). “A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.' ” Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)).
This judicial immunity applies to Section 1983 actions like the lawsuit brought here, see Dennis v. Sparks, 449 U.S. 24, 27 (1980), and embraces both requests for damages, as well as costs and attorney's fees. See Corliss v. O'Brien, No. 3:05-CV-0347, 2005 WL 2334 792 (M.D. Pa.2005),
affd, 200 F. App'x. 80 (3d Cir.2006). This judicial immunity also expressly extends to Pennsylvania magisterial district court judges. Indeed, as the United States Court of Appeals for the Third Circuit has aptly observed, there is no distinction “between judges of courts of limited and general jurisdiction” when applying the judicial immunity doctrine, Figueroa v. Blackburn, 208 F.3d 435, 441 (3d Cir. 2000), and “[t]he doctrine of judicial immunity applies equally to courts of limited jurisdiction, such as district justices, as to courts of general jurisdiction.” Martin v. Bicking, 30 F.Supp.2d 511, 512 (E.D. Pa.1998); see also Schuler v. City of Chambersburg, 641 F.Supp. 657, 659 (M.D. Pa.1986); Horne v. Farrell, 560 F.Supp. 219, 222-23 (M.D. Pa.1983). . . . Nor can Sewell vitiate this immunity by claiming that the judges erred in their rulings. Even if these decisions were later found to be in error, those rulings still may not give rise to civil liability since judicial immunity applies to all of a judge's rulings, even those that are later determined to be mistaken. See Gallas v. Supreme Court of Pennsylvania., 211 F.3d 760, 769 (3d Cir. 2005). In our view, these issues ofjudicial immunity are insurmountable obstacles to the plaintiff maintaining this lawsuit. Therefore, the complaint as to this defendant must be dismissed for failure to state a claim upon which relief can be granted. Since the judges acted within their jurisdiction in ruling on matters in these prior cases, they are absolutely immune from liability, and this complaint should be dismissed.Sewell, 2015 WL 5997056, at *3-5. These observations regarding the nature of judicial immunity remain as pertinent now as they were in 2015 when they defeated Sewell's prior efforts to sue a state judge who had displeased him. Therefore, this state judicial officer is also entitled to be dismissed from this case.
Finally, we note 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). In this case, however, the defects in the complaint, which run afoul of basic legal tenets, are so profound that efforts at a cure would be both futile and lead to undue delay. Therefore, it is recommended that this action be dismissed with prejudice.
III. Recommendation
Accordingly, for the foregoing reasons, the plaintiff is conditionally GRANTED leave to proceed in forma pauperis 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.