Opinion
Civil Action 3:23-cv-00231
10-19-2023
VICTOR BUENO JR., #NT2066, Plaintiff, v. TPR. RUSS ROTHERMEL, et al., Defendants.
MANNION, J
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR., UNITED STATES MAGISTRATE JUDGE
This is a federal civil rights action, which commenced on February 8, 2023, when the clerk received and lodged for filing a pro se complaint, signed and dated by the plaintiff, Victor Bueno Jr., on February 3, 2023. (Doc. 1.) The complaint was accompanied by a motion for leave to proceed in forma pauperis, which we have granted in a separate, contemporaneous order. (Doc. 2.)
I. Background
At the time this action commenced, Bueno was incarcerated at Schuylkill County Prison as a convicted inmate awaiting sentencing. On January 30, 2023, following a bench trial, Bueno was found guilty on five counts of possession with intent to deliver controlled substances, five counts of possession of controlled substances, and one count each of receiving stolen property, possession of a firearm by a convicted felon, and possession of drug paraphernalia. See Commonwealth v. Bueno, Docket No. CP-54-CR-0000297-2022 (Schuylkill Cnty. (Pa.) C.C.P.).After filing the complaint in this action, Bueno was sentenced on March 23, 2023, to serve an aggregate term of 150 to 300 months in prison. See id. Bueno has taken an appeal from this judgment of conviction and sentence, which remains pending before the Superior Court of Pennsylvania. See Commonwealth v. Bueno, Docket No. 484 MDA 2023 (Pa. Super. Ct.).
In addition to the allegations of the complaint and the exhibits attached thereto by the plaintiff, we have considered publicly available state court criminal docket records. A district court, of course, may properly take judicial notice of state court records, as well as its own. See Fed. R. Evid. 201; Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007); Ernst v Child & Youth Servs. of Chester Cty, 108 F.3d 486, 498-99 (3d Cir. 1997); Pennsylvania v. Brown, 373 F.2d 771, 778 (3d Cir. 1967).
In his pro se complaint, the plaintiff asserts Fourth Amendment unlawful arrest and malicious prosecution claims against five named defendants: (1) Russ Rothermel, a Pennsylvania state trooper who arrested Bueno and filed the underlying criminal complaint against him; (2) Michael O'Pake, the county district attorney who prosecuted the underlying criminal proceedings against Bueno; (3) the Pennsylvania State Police (“PSP”); (4) Schuylkill County (the “County”); and (5) the Commonwealth of Pennsylvania (the “Commonwealth”).
The complaint itself alleges few facts in support of these claims, but the plaintiff has attached documents from the state criminal proceedings that clarify the gist of his claims.
The exhibits to the complaint include: the first page of the underlying criminal complaint against Bueno; the first page of the application and search warrant that precipitated his arrest; a state court order denying a motion for judgment of acquittal on the receiving stolen property charge against him; the state court order finding him guilty of all charged offenses following a bench trial; the affidavit of probable cause submitted in support of the underlying criminal complaint against him; fragmentary excerpts from Bueno's omnibus pretrial motion in the underlying state criminal proceedings and the affidavit of probable cause submitted in support of the aforementioned application and search warrant; and excerpts from the state court docket record in the underlying criminal proceedings.
According to Rothermel's affidavit of probable cause in support of the criminal complaint, state police executed a search warrant for Bueno's residence on February 16, 2022, in connection with suspected drug sales taking place at that location. During the course of the search, state police found more than $5,000 in cash, 22 ounces of methamphetamine, 100 grams of marijuana, 65 grams of cocaine, 28 tablets of ecstasy, 64 grams of psilocybin mushrooms, 10 grams of crack cocaine, THC edibles, a scale, and packaging, plus 12 rifles and 7 handguns. After being advised of his Miranda rights, Bueno agreed to speak with Rothermel, both at the residence and again after being transported to a state police barracks. Bueno admitted that all of the narcotics and firearms belonged to him, and that he knew he was not legally permitted to possess a firearm. A review of Bueno's criminal history revealed prior felony convictions. A records search revealed that one of the rifles recovered from Bueno's residence had been reported stolen. Field testing of the suspected cocaine, methamphetamine, and marijuana returned positive results.
A preliminary arraignment was held on February 16, 2022, and bail was set at $50,000. Unable to post bail, Bueno remained in pretrial custody. Following a preliminary hearing on February 24, 2022, the charges were bound over to the court of common pleas. On January 30, 2023, following a bench trial, Bueno was found guilty on all charged offenses. On March 23, 2023, he was sentenced to a term of imprisonment. His criminal judgment remains pending on appeal.
Notwithstanding the foregoing, Bueno claims that he was arrested and prosecuted without probable cause, in violation of his Fourth Amendment rights, made actionable by 42 U.S.C. § 1983. See generally Mala v Crown Bay Marina, Inc., 704 F.3d 239, 244-46 (3d Cir. 2013) (discussing a court's obligation to liberally construe pro se pleadings and other submissions, particularly when dealing with imprisoned pro se litigants).
II. Legal Standards
A. Lack of Subject Matter Jurisdiction
The plaintiff bears the burden of establishing the existence of subject matter jurisdiction when challenged under Rule 12(b)(1). See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). A defendant may challenge the existence of subject matter jurisdiction in one of two fashions: it may attack the complaint on its face, or it may attack the existence of subject matter jurisdiction in fact, relying on evidence beyond the pleadings. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Where a defendant attacks a complaint as deficient on its face, “the court must consider the allegations of the complaint as true.” Mortensen, 549 F.2d at 891. “In deciding a Rule 12(b)(1) facial attack, the court may only consider the allegations contained in the complaint and the exhibits attached to the complaint; matters of public record such as court records, letter decisions of government agencies and published reports of administrative bodies; and ‘undisputably authentic' documents which the plaintiff has identified as a basis of his claims and which the defendant has attached as exhibits to his motion to dismiss.” Medici v. Pocono Mountain Sch. Dist., No. 09-CV-2344, 2010 WL 1006917, at *2 (M.D. Pa. Mar. 16, 2010). However, when a motion to dismiss attacks the existence of subject matter jurisdiction in fact, “no presumptive truthfulness attaches to plaintiff's allegations,” and “the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Mortensen, 549 F.2d at 891. Here, we have considered a facial challenge to the existence of subject matter jurisdiction on the court's own motion. See Liberty Mut. Ins. Co. v. Ward Trucking Corp., 48 F.3d 742, 750 (3d Cir. 1995) (“Federal courts have an ever-present obligation to satisfy themselves of their subject matter jurisdiction and to decide the issue sua sponte ....”); Johnson v. United States, Civil No. 1:CV-08-0816, 2009 WL 2762729, at *2 (M.D. Pa. Aug. 27, 2009).
B. Failure to State a Claim
Under 28 U.S.C. § 1915A, the court is obligated to screen a civil complaint in which a prisoner is seeking redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a); James v. Pa. Dep't of Corr., 230 Fed. App'x 195, 197 (3d Cir. 2007). The court must dismiss the complaint if it “fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(1). The Court has a similar obligation with respect to in forma pauperis actions. See 28 U.S.C. § 1915(e)(2)(B)(ii). See generally Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 587-89 (W.D. Pa. 2008) (summarizing prisoner litigation screening procedures and standards).
The legal standard for dismissing a complaint for failure to state a claim under § 1915A(b)(1) or § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Brodzki v. Tribune Co., 481 Fed. App'x 705, 706 (3d Cir. 2012) (per curiam); Mitchellv. Dodrill, 696 F.Supp.2d 454, 471 (M.D. Pa. 2010); Banks, 568 F.Supp.2d at 588. “Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the court must accept the fact allegations in the complaint as true, it is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed. App'x 88, 91 n.3 (3d Cir. Sept. 25, 2018); Sourovelis v. City of Philadelphia, 246 F.Supp.3d 1058, 1075 (E.D. Pa. 2017); Banks, 568 F.Supp.2d at 588-89.
III. Discussion
Bueno's federal civil rights claims are asserted under 42 U.S.C. § 1983. Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....42 U.S.C. § 1983. Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim, a plaintiff must establish that the defendants, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). To avoid dismissal for failure to state a claim, a civil rights complaint must state the conduct, time, place, and persons responsible for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).
A. The Commonwealth and the State Police
It is well settled that neither the Commonwealth nor the PSP, which is an agency of the Commonwealth, is a “person” amenable to suit under § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 64 (1989) (“[A] State is not a person within the meaning of § 1983”); Mitchell v. Miller, 884 F.Supp.2d 334, 355 n.6 (W.D. Pa. 2012) (“The PSP is not a ‘person' amenable to suit under § 1983.”).
Moreover, absent abrogation by Congress or waiver by the state, the Eleventh Amendment to the United States Constitution provides that states, and their constituent agencies or departments, are immune from suit in federal court. Pennhurst State. Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984); Nails v Pa. Dept of Transp., 414 Fed. App'x 452, 455 (3d Cir. 2011) (per curiam); Nat'l Indem. Co. v. Grimm, 760 F.Supp. 489, 494 (W.D. Pa. 1991). The PSP is one such state agency entitled to Eleventh Amendment immunity from suit. Atkin v. Johnson, 432 Fed. App'x 47, 48 (3d Cir. 2011) (per curiam) (“[T]he Eleventh Amendment bars claims for damages against the PSP, a state agency that did not waive its sovereign immunity.”); Kintzel v. Kleeman, 965 F.Supp.2d 601, 606 (M.D. Pa. 2013) (“Eleventh Amendment . . . protection extends to state agencies and departments, such as the Pennsylvania State Police.”). The Commonwealth of Pennsylvania has expressly declined to waive its sovereign immunity in federal court. See 42 Pa. Cons. Stat. Ann. § 8521(b); Nails, 414 Fed. App'x at 455; Grimm, 760 F.Supp. at 494.
Accordingly, we recommend that the plaintiff's claims against the Commonwealth and the PSP be dismissed for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, or, in the alternative, for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. §1915(e)(2)(B)(ii).
A Rule 12(b)(1) motion is the proper mechanism for raising the issue of whether Eleventh Amendment immunity bars the exercise of federal jurisdiction. Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 n.2 (3d Cir. 1996) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984)). Although it is not required to do so, a court may raise an Eleventh Amendment issue sua sponte. Bowers v. Nat'l Collegiate Athletic Ass'n, 346 F.3d 402, 417 (3d Cir. 2003); Richard E. Pierson Constr. Co. v. Philadelphia Reg'l Port Auth., 348 F.Supp.3d 410, 413 (E.D. Pa. 2018).
B. The District Attorney
The plaintiff has asserted § 1983 claims against defendant O'Pake, the county district attorney who prosecuted or supervised the prosecution of state criminal charges against him.
The plaintiff's claims against O'Pake are based solely on his conduct as an advocate in the judicial phase of the criminal process-that is, initiating a prosecution and presenting the state's case-and thus the plaintiff's § 1983 claim are barred by the doctrine of absolute prosecutorial immunity. See Imbler v Pachtman, 424 U.S. 409, 430-31 (1976); Walker v. City of Philadelphia, 436 Fed. App'x 61, 62 (3d Cir. 2011) (per curiam); see also Van de Kamp v. Goldstein, 555 U.S. 335, 345 (2009) (supervisory prosecutors also receive absolute immunity for conduct implicating their advocacy function); Kulwicki v. Dawson, 969 F.2d 1454, 1465 (3d Cir. 1992) (noting that this absolute immunity “extends to ‘the preparation necessary to present a case,' and this includes the ‘obtaining, reviewing, and evaluation of evidence'”).
Accordingly, we recommend that the plaintiff's § 1983 claims against O'Pake be dismissed for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1).
C. The County
The pro se complaint seeks to hold the County liable for the allegedly unconstitutional conduct of its district attorney, O'Pake.
“On its face, § 1983 makes liable ‘every person' who deprives another of civil rights under color of state law.” Burns v. Reid, 500 U.S. 478, 497 (1991) (Scalia, J., concurring in part and dissenting in part). In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court of the United States established that municipalities and other local governmental units are included among those “persons” subject to liability under § 1983. Id. at 690. Schuylkill County is such a municipality subject to liability as a “person” under § 1983. See id. at 694; Mulholland v. Gov't Cty. of Berks, 706 F.3d 227, 237 (3d Cir. 2013).
But it is well established that a municipality may not be held liable under Monell for the actions of its district attorney undertaken in his or her role as a prosecutor. Whitfield v. City of Philadelphia, 587 F.Supp.2d 657, 672 (E.D. Pa. 2008). As our sister court explained:
[W]hen prosecuting crimes or otherwise carrying out policies established by the State, prosecutors are in fact acting as state officials. It is only when making administrative decisions that a prosecutor is acting as a county official. Thus, a municipality can only be held liable for the acts of its officials undertaken in an administrative capacity.Id. at 671 (citations, internal quotation marks, and brackets omitted).
Other than the fact of Bueno's criminal prosecution, the pro se complaint itself alleges no facts whatsoever regarding any acts by the county district attorney. Accordingly, we recommend that the plaintiff's § 1983 claims against the County be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1).
D. The State Trooper
The plaintiff has asserted § 1983 claims for unlawful arrest and malicious prosecution against Rothermel, arising out of his February 16, 2022, arrest and subsequent prosecution. But these claims are barred by the favorable termination rule articulated by the Supreme Court of the United States in Heck v. Humphrey, 512 U.S. 477 (1994). See Bucano v. Sibum, Civil Action No. 3:12-CV-606, 2012 WL 2395262, at *7 (M.D. Pa. June 12, 2012) (Heck's favorable termination rule applies to plaintiff who has been convicted but is still awaiting sentencing).
In Heck, the Supreme Court held that, where judgment in favor of a plaintiff in a § 1983 action for damages would necessarily imply the invalidity of the plaintiff's criminal conviction or sentence, the plaintiff must first demonstrate that “the criminal proceedings have terminated in the plaintiff's favor.” Id. at 489. “[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus [under] 28 U.S.C. § 2254.” Id. at 486-87 (footnote omitted). In Wilkinson v. Dotson, 544 U.S. 74 (2005), the Supreme Court reaffirmed the favorable termination rule and broadened it to encompass equitable remedies as well, holding that “a state prisoner's § 1983 action is barred (absent prior invalidation)-no matter what the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)-if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson, 544 U.S. at 81-82.
Here, Bueno's malicious prosecution claims are clearly barred by Heck because favorable termination is a necessary element of the claim itself. See Massey v. Pfeifer, 804 Fed. App'x 113, 115 (3d Cir. 2020) (per curiam); Olickv. Pennsylvania, 739 Fed. App'x 722, 725-26 (3d Cir. 2018) (per curiam); see also Heck, 512 U.S. at 484 (“One element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused.”).
Although “Heck does not automatically bar [Bueno's] claims of false arrest[,] . . . there are circumstances in which Heck may bar such claims.” Olick, 739 Fed. App'x at 726; see also Montgomery v. De Simone, 159 F.3d 120, 126 n.5 (3d Cir. 1998) (recognizing that, “[b]ecause a conviction and sentence may be upheld even in the absence of probable cause for the initial stop and arrest,” claims of false arrest and false imprisonment do not necessarily implicate the validity of a conviction or sentence). Here, Bueno's arrest was based on the very same conduct for which he was ultimately convicted-his possession of stolen property, firearms, controlled substances, and drug paraphernalia recovered from his residence pursuant to a facially valid search warrant-and thus success on his unlawful arrest claims in this case would necessarily imply the invalidity of his state court conviction. See Olick, 739 Fed. App'x at 726 (“If we were to accept Olick's contentions, and he were to prevail on his false arrest and false imprisonment claims, it would therefore necessarily imply the invalidity of the state court fact finding and, under the circumstances of this case, his harassment conviction.”); Fields v. City of Pittsburgh, 714 Fed. App'x 137, 140-41 (3d Cir. 2017) (“Fields' success on his false arrest claim depends on a finding that the officers lacked probable cause to arrest him, which would directly impugn the validity of his resulting guilty plea.”) (internal quotation marks and brackets omitted); Yoast v. Pottstown Borough, 437 F.Supp.3d 403, 426 n.80 (E.D. Pa. 2020) (“Because Yoast's imprisonment was based on the same conduct that he was convicted for, if his imprisonment was not lawful then conviction was not either valid.”).
Even if the Heck doctrine did not bar Bueno's Fourth Amendment claims, Rothermel would be entitled to dismissal on the facts alleged in the complaint. The plaintiff's Fourth Amendment claims-unlawful arrest and malicious prosecution-require a plaintiff to plead or prove that the arrest or prosecution occurred without the existence of probable cause. See Murphy v. Bendig, 232 Fed. App'x 150, 153 (3d Cir. 2007) (per curiam); Sheedy v. City of Philadelphia, 184 Fed. App'x 282, 284 (3d Cir. 2006) (per curiam). “Probable cause exists where the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested.” United States v. Cruz, 910 F.2d 1072, 1076 (3d Cir. 1990); see also Andrews v. Scuilli, 853 F.3d 690, 697 (3d Cir. 2017) (recognizing that the very same probable cause analysis applies whether considering false arrest or malicious prosecution claims). “Courts determine the existence of probable cause by using an objective standard.” Wychunas v. O'Toole, 252 F.Supp.2d 135, 142 (M.D. Pa. 2003). “Thus, a police officer will be liable for civil damages for an arrest if ‘no reasonably competent officer' would conclude that probable cause existed.” Id.
Here, the affidavit of probable cause prepared by Rothermel in support of the criminal complaint more than sufficiently establishes the existence of probable cause. State police conducted a search of Bueno's residence pursuant to a facially valid search warrant, approved by a neutral magistrate. As a result of their search, they found substantial quantities of several different types of controlled substances, scales and glassine packets commonly associated with the distribution of illicit drugs, and numerous firearms (the possession of which by Bueno was prohibited as a convicted felon). After being advised of his Miranda rights, Bueno admitted to investigating officers that the drugs and guns all belonged to him. Based on the foregoing, there was a clear basis for a reasonable officer to believe that the charged offenses had been committed by Bueno.
Accordingly, we recommend that the plaintiff's § 1983 unlawful arrest and malicious prosecution claims against Trooper Rothermel be dismissed for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1).
E. Leave to Amend
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). This instruction applies equally to pro se plaintiffs and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, based on the facts alleged in the complaint, the documentary exhibits attached thereto, and state court records of which we may properly take judicial notice, it is clear that any amendment would be futile. Therefore, we recommend that the plaintiff's claims be dismissed without leave to amend.
IV. Recommendation
For the foregoing reasons, it is recommended that:
1. The plaintiff's § 1983 claims against the Commonwealth of Pennsylvania and the Pennsylvania State Police be DISMISSED for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, or, in the alternative, for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1);
2. The plaintiff's § 1983 claims against Schuylkill County, Michael O'Pake, and Russ Rothermel be DISMISSED for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1); and
3. The clerk be directed to mark this case as CLOSED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated October 19, 2023. 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.