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Simone Brooks v. Central Dauphin School District


August 31, 2011


The opinion of the court was delivered by: Thomas M. Blewitt United States Magistrate Judge

(Judge Jones)

(Magistrate Judge Blewitt)


I. Background.

Plaintiff, Simone Brooks,*fn1 a resident of 4101 Linden Street, Harrisburg, Pennsylvania, filed the instant civil rights action, seemingly pursuant to 42 U.S.C. § 1983, on August 22, 2011.*fn2 Plaintiff is proceeding pro se. Plaintiff also filed a Motion for Leave to Proceed in forma pauperis. (Doc. 2). Plaintiff's claim was set forth on a form civil rights complaint provided by the Court. The Plaintiff's Statement of Claim consists of the following:

My mother Rita Brooks has brought (sic) and purchased the home located at 4101 Linden Street Hbg. Pa. 17109 for the soul (sic) reason for all grandchildren that has Brooks['] blood to never have to be subjected to un-proper (sic) education and/or harm.

My son Kahlil Brooks was harmed in Harrisburg School District. Therefore, my children will not/and cannot attend Hbg. Sch. Dist. Doc. 1, pp. 1-2, Statement of Claim, Section 3.

As relief in her Complaint, Plaintiff requests "an expedited order for my children to start school in Central Dauphin School District for as long as my mother, Rita Brooks, owns the land that my children are [heirs] too (sic). Central Dauphin is the appropriate school district at this time." (Id., p. 2).

Plaintiff names as the sole Defendant the Central Dauphin School District "(CDSD"). As noted, this is Plaintiff's second action against CDSD. In her 3-sentence handwritten attachment to her form Complaint, Plaintiff states that "[CDSD] falls with in the best interest of the children of the Brooks['] family due to the underlaying (sic) circumstances of the improper investigation concerning the child molestation [of her son] that all state agencies are aware of." (Id., p. 3).

Thus, Plaintiff seems to claim that, despite the fact that she lives with her children outside CDSD (i.e. in the Harrisburg School District), since her mother owns a house located in CDSD and since her son Kahlil Brooks was the victim of child molestation while attending school in the Harrisburg School District, her children are entitled to attend school in CDSD. Stated simply, Plaintiff sues Defendant CDSD claiming that her children are entitled to attend school in CDSD where her mother resides even though Plaintiff does not actually reside in that district with her children. Plaintiff appears to seek immediate injunctive relief for this Court to allow her children to enroll and start school for the upcoming 2011-2012 school year at CDSD and, to allow her children to remain at CDSD for as long as her mother owns a house in CDSD. Thus, we construe Plaintiff as requesting this Court to direct CDSD to accept her children into its schools since her mother owns a house in CDSD even though Plaintiff and her children do not actually live in CDSD.

Plaintiff contends that her children should be allowed into schools in CDSD since her son was subjected to molestation in their school district, i.e. Harrisburg School District, and since her children will someday inherit her mother's house located in CDSD. Plaintiff does not indicate if CDSD has a policy of not permitting the admission of nonresident students and if she has unsuccessfully attempted to enroll her children in CDSD. Further, Plaintiff does not state if she exhausted any state remedies which may be available to her.

II. Screening Plaintiff's Complaint.

As stated, Plaintiff filed an application to proceed in forma pauperis. (Doc. 2 ). Since Plaintiff filed a Motion to Proceed in forma pauperis showing that she is indigent, we will recommend that Plaintiff's Motion be granted. Thus, we are obliged to screen Plaintiff's pleading under 28 U.S.C. §1915(e). In O'Connell v. Sobina, 2008 WL 144199, *3 (W.D. Pa.), the Court stated, "Section 1915(e) (as amended) requires the federal courts to review complaints filed by persons that are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a Defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)."

In Palencar v. Cobler Realty Advisors, Civil No. 09-0325, M.D. Pa., 7-24-09 slip op. pp. 5-6, the Court stated:

Once it has been decided that a plaintiff should be accorded in forma pauperis status, the court then considers whether the complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B). Douris v. Huff, 2008 U.S. App. LEXIS 467, 469 (3d Cir. 2007); see also Douris v. Newtown Borough, Inc. 207 Fed.Appx. 242 (3d Cir. 2006). Section 1915(e)(2) provides:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that --

(A) the allegation of poverty is untrue; or

(B) the action or appeal - -(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2). This statute "is designed largely to discourage the filing of, and waste of, judicial and private resources upon baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11." Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (stating that "[dismissals on these grounds are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering [frivolous] complaints"). While the original statute permitted sua sponte dismissal only if an action was frivolous or malicious, Congress included failure to state a claim and seeking monetary relief from a defendant immune from suit as additional grounds for sua sponte dismissal of in forma pauperis cases. Jones v. Bock, 127 S.Ct. 910, 920, 166 L.Ed.2d 798 (2007); § 1915(e)(2)(B) (2000 ed.); 28 U.S.C. § 1915(d)( (1994 ed.).

Thus, § 1915(e) obligates the Court to engage in a screening process when a person wishes to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Despite the fact that Plaintiff is not an inmate and is not complaining about prison conditions, § 1915(e)(2) applies to all in forma pauperis complaints, and not just to prisoners. See Grayson v. Mayview State Hosp., 293 F3d 103, 110, n. 10 (3d Cir. 2002); Lopez v. Smith, 203 F. 3d 1122, 1129 (9th Cir. 2000); Williams v. Marino, Civil No. 03-0632, M.D. Pa. January 12, 2004, Memorandum and Order, p. 4.

III. Motion to Dismiss Standards.

1. Rule 12(b)(1) Standard

InJames S. Ex rel. Thelma S. v. Sch. Dist. of Phila., 559 F. Supp. 2d 600, 611 (E. D. Pa. 2008), the Court stated:

"A challenge to a complaint for failure to allege subject matter jurisdiction is known as a facial' challenge, and must not be confused with a 'factual' challenge contending that the court in fact lacks subject matter jurisdiction, no matter what the complaint alleges...." N.E. Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 341 n. 7 (3d Cir.2001) (citing Mortensen, 549 F.2d at 891; 5A Wright & Miller, Federal Practice & Procedure § 350, at 212-18 (West 1990)). Defendant District's Motion to Dismiss presents a factual challenge.

In assessing a Rule 12(b)(1) motion that presents a factual challenge to a court's jurisdiction, the court is "free to weigh the evidence and satisfy itself as to the existence of its power to hear the case .... [N]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Carpet Group Int'l, 227 F.3d at 69 (quoting Mortensen, 549 F.2d at 891).

In making this assessment, "the court [is] not confined to allegations in the plaintiff's complaint, but [may] consider affidavits, depositions, and testimony to resolve factual issues bearing on jurisdiction." Gotha v. United States, 115 F.3d 176, 179 (3d Cir.1997).

2. Rule 12(b)(6) Standard

In Reisinger v. Luzerne County, 2010 WL 1976821, *7 (M.D. Pa.), the Court stated:

The Third Circuit Court of Appeals recently set out the appropriate standard applicable to a motion to dismiss in light of the United States Supreme Court's decisions Bell Atlantic Corp. v. Twombly, 550 U.S. 433 (2007), and Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937 (2009). "[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to 'state a claim that relief is plausible on its face.' " Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). The Court emphasized that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. Moreover, it continued, "[d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (citation omitted). McTernan v. City of York, 577 F.3d 521, 530 (3d Cir.2009). The Circuit Court discussed the effects of Twombly and Iqbal in detail and provided a road map for district courts presented with a motion to dismiss for failure to state a claim in a case filed just a week before McTernan, Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir.2009).

[D]istrict 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. [ Iqbal, 129 S.Ct. at 1949.] 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." Id. at 1950. In other words, a complaint must do more than allege a plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts. See Philips [v. Co. of Allegheny], 515 F.3d [224,] 234-35 [ (3d Cir.2008) ]. As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.' " Iqbal, 129 S.Ct. at 1949. This "plausibility" determination will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. Fowler, 578 F.3d at 210-11.

The Circuit Court's guidance makes clear that legal conclusions are not entitled to the same deference as well-pled facts. In other words, "the court is 'not bound to accept as true a legal conclusion couched as a factual allegation.' " Guirguis v. Movers Specialty Services, Inc., No. 09-1104, 2009 WL 3041992, at *2 (3d Cir. Sept. 24, 2009) ( quoting Twombly, 550 U.S. at 555) (not precedential).

IV. Discussion.

We take judicial notice from Plaintiff's prior action filed with this Court, Civil No. 09-2482, that Plaintiff's son Kahlil Brooks is a student with a disability. In Plaintiff's prior case, she averred that since Plaintiff Kahlil was a student with a disability requiring special education needs, her claims were essentially presented under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400, et seq.*fn3 In her present case, Plaintiff indicates on her in forma pauperis motion that she receives Social Security disability benefits for her son Kahlil Brooks due to the child molestation he allegedly was victim to and due to his "PTSD" (post traumatic stress disorder). (Doc. 2).

In L.G. Wissahickon School Dist., 2011 WL 13572, *1, n. 1 (E.D. Pa. 1-4-11), the Court noted, "IDEA requires that a school district receiving federal education funding identify, locate, and evaluate all children with disabilities residing in their district, and develop and implement a practical method for providing a free and appropriate public education to such disabled children, including needed special education and related support services. 20 U.S.C. § 1412(a)." (Emphasis added).

1. Exhaustion of Administrative Procedures

The Court in Brett S. v. The West Chester Area School Dist., 2006 WL 680936, *1 (E.D. Pa.), stated:

In order to receive federal education funding under the IDEA, a state must provide disabled children [FN2] with a "free appropriate public education" ("FAPE"). 20 U.S.C. § 1412(a)(1). "Free and appropriate public education" means "special education and related services" that:

FN2. The IDEA defines "children with disabilities" as children who need special education because of "mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities." 20 U.S.C. § 1401(3)(A).

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school education in the state involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. § 1401(8). [FN3] The primary mechanism for delivering a FAPE is through an individualized education program ("IEP"), which tailors educational services to meet the child's specific needs. 20 U.S.C. § 1414(d); Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999).

FN3. "Special education" is defined as "specifically designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child." 20 U.S.C. § 1401(25). "Related services" are defined as "such developmental, corrective and other supportive services . . . as may be required to assist a child with a disability to benefit from special education." § 1401(22).

See James S. Ex rel. Thelma S. v. Sch. Dist. of Phila., 559 F. Supp. 2d 600, 621 (E. D. Pa. 2008).

To the extent Plaintiff's present claims are presented under the IDEA,*fn4 she does not indicate that she exhausted her administrative remedies. Plaintiff seems to aver that Kahlil was denied enrollment and educational benefits by Defendant CDSD.

The Court in James S., supra., stated:

To ensure that local educational agencies comply with the IDEA's substantive provisions, the statute requires states to guarantee certain procedural rights in order to qualify for funding. Under the IDEA, complaints are reviewed at an impartial due process hearing conducted by the state or local education agency. See 20 U.S.C. § 1415(f); 34 C.F.R. § 300.511. If a due process hearing is conducted at the local level, an appeal may be taken to a state agency which must render a final decision within thirty days. See 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.515(b). A party aggrieved by the state educational agency's decision may appeal to a federal or state court of competent jurisdiction. See 20 U.S.C. § 1415(i)(2); 34 C.F.R. § 300.516(a).

559 F. Supp. 2d at 612-13.

Further, "the provisions of the IDEA granting federal courts jurisdiction only permits suit by a 'party aggrieved by the findings and decisions made' in the administrative process. 20 U.S.C. §1415(i)(2)(A)." Id. at 613.

The James S. Court stated as follows with respect to the exhaustion requirement:

The IDEA requires that a party exhaust administrative procedures before seeking relief in federal court. See 20 U.S.C. § 1415(i)(2); Honig v. Doe, 484 U.S. 305, 326-27, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) ("[J]udicial review is normally not available under [§ 1415(i)(2) ] until all administrative proceedings are completed ...."). In Pennsylvania, exhausting administrative remedies consists of participating in a due process hearing and taking an appeal to the state appellate body. See 22 Pa.Code § 14.162; Blunt v. Lower Merion Sch. Dist., No. 07-3100, 2008 WL 442109, *5 (E.D.Pa. Feb. 15, 2008) (describing two-level review process in Pennsylvania); Kristi H. v. Tri-Valley Sch. Dist., 107 F.Supp.2d 628, 631 (M.D.Pa.2000) (same). Further, before bringing suit under Section 504 or the ADA "seeking relief that is also available under the IDEA," a party must exhaust administrative remedies to the same extent as required under the IDEA. See 20 U.S.C. § 1415(i);

34 C.F.R. § 300.516(e). The IDEA administrative exhaustion requirement "allows a school district to bring its expertise to bear and affords the state an opportunity to correct its own mistakes." McKellar v. Com. of Pennsylvania Dept. of Educ., No. 98-4161, 1999 WL 124381, *2 (E.D.Pa. Feb.23, 1999) (citing McKart v. United States, 395 U.S. 185, 193-95, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969).

Id. at 615-16.

In D.E. v. CDSD, supra, the Court stated:

The IDEA is a complex legislative scheme that requires an aggrieved party to exhaust all administrative remedies before seeking relief from federal court. Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775 (3d Cir.1994). The Third Circuit has recognized four situations where exhaustion is not required: 1) futility, 2) the question is a purely legal one, 3) the hearing officer lacks authority to provide a remedy, and 4) exhaustion would cause irreparable harm. Id. at 778-79. Further, a district court has jurisdiction to hear a civil action under the IDEA only in certain situations:

[A]ny party aggrieved by the findings and decision [of the hearing officer at an administrative hearing or after an appeal] ... shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought ... in a district court in the United States, without regard to the amount in controversy.

20 U.S.C. § 1415(i)(2)(A). Thus, the plain language of the statute grants federal jurisdiction over parties "aggrieved by the findings and decision" of the hearing officer.

2009 WL 904960, *4.

"The Third Circuit has recognized exceptions to the IDEA's exhaustion requirement." James S., supra, at 616. With respect to the exceptions, the James S. Court stated:

"Specifically, the Third Circuit has held that exhaustion may be excused where: (1) it "would be futile or inadequate"; (2) the "issue presented is purely a legal question"; (3) "the administrative agency cannot grant relief (e.g., hearing officer lacks authority to provide a remedy)" or (4) "exhaustion would work severe or irreparable harm upon a litigant." Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775, 778 (3d Cir.1994) (quotation marks and citations omitted)."

Id.; D.E. v. CDSD, 2009 WL 904960, *4.

The IDEA exhaustion requirement is jurisdictional. Id. (citation omitted); Blunt v. Lower Marion School Dist., 559 F. Supp. 2d 548 (E.D. Pa. 2008)(dismissing unexhausted claims for lack of jurisdiction under Rule 12(b)(1)).

Exhaustion of administrative remedies is generally required prior to a federal action being filed such as the proceeding before the State via the Special Education Due Process Hearing. It appears that Plaintiff has not exhausted her administrative remedies with respect to her claims that Defendant CDSD improperly denied Kahlil enrollment and educational benefits by not allowing him to start school in CDSD. As the Court stated in D.E. v. CDSD, 2009 WL 904960, *4, "the administrative process in Pennsylvania, required two steps: a due process hearing before the hearing officer and an appeal to the Special Education Due Process Review Panel." (citation omitted). Plaintiff does not indicate if she completes either step in the Pennsylvania administrative process. Thus, it appears that Plaintiff has once again failed to exhaust her claims to the extent they are brought under the IDEA against Defendant CDSD by completing the special education due process administrative litigation which Pennsylvania provides. See Kristi H. v. Tri-Valley School District, 107 F.Supp.2d 628');">107 F. Supp. 2d 628 (M.D. Pa. 2000).*fn5 Further, Plaintiff has not alleged in her Complaint that she is excused from exhaustion in this case under the stated exceptions to exhaustion. See James S., supra.*fn6 Additionally, while exhaustion is not required if Plaintiff seeks compensatory damages, Plaintiff does not seek such damages in her present Complaint. (Doc. 1, p. 2). In Colon v. Colonial Inter, Unit 20, 443 F. Supp. 2d 659, 668, the court stated that "[g]enerally, exhaustion is, in fact, necessary for an IDEA claim. See 20 U.S.C. §1414(f). The Third Circuit Court of Appeals has held, however, that exhaustion is not necessary where the Plaintiffs seek compensatory damages."(citation omitted); D.E. v. CDSD, 2009 WL 904960, *4("compensatory damages are not available at the administrative level").

Thus, insofar as Plaintiff seeks relief available in IDEA administrative proceedings, we will recommend that her action be dismissed without prejudice since she has not exhausted the IDEA administrative procedures. See D.E. v. CDSD, 2009 WL 904960, *6. Since it appears that Plaintiff failed to exhaust her claims to the extent they are cognizable under the IDEA, § 1415(i) prohibits Plaintiffs "from seeking IDEA relief through the guise of related statutes." James S., 559 F. Supp. 2d at 619. As the James S. Court stated, "[t]he Third Circuit has held that § 1415(i) bars Plaintiffs from 'circumventing IDEA's exhaustion requirement by taking claims that could have been brought under IDEA and repackaging them as claims under some other statute - e.g., section 1983, section 504 of the Rehabilitation Act, or the ADA.'" Id. (citation omitted); A.W. v. Jersey City Public Schools, 486 F.3d 791, 803 (3d Cir. 2007) ("Congress did not intend § 1983 to be available to remedy violations of the IDEA").

Thus, we will also recommend that insofar as Plaintiff is deemed as rasing a Fourteenth Amendment due process claim under § 1983, that this claim also be dismissed.

Therefore, to the extent that the relief which our Plaintiff seeks in her Complaint is available under the IDEA, we will recommend that her case be dismissed without prejudice pursuant to § 1415(i). James S., 559 F. Supp. 2d at 619.

2. Failure to State a Claim

Moreover, we do not find that this Court has any basis to direct Defendant CDSD to enroll Plaintiff's children as students who do not appear to reside in CDSD. Defendant CDSD is not required to educate Plaintiff's children and it does not receive any funding from either the federal or state government to educate student living outside of its boundaries. See R.T. ex rel. J.S. v. Southeastern York County School Dist., 2007 WL 626056, *4 (M.D. Pa. 2-23-07). The law is clear as the Court stated in R.T. ex rel. J.S. v. Southeastern York County School Dist., 2007 WL 626056, *4:

State law and regulations are quite clear that a school district must educate residents residing within its boundaries. 24 Pa. Con. Stat. Ann. § 5-501 ("The board of school directors in every school district shall establish ... and maintain a sufficient number of ... public schools.. to educate every [eligible school-age person] residing in such district."); S.E. School Dist. Policy 202 ("The Board shall operate district schools for the benefit of students residing in this district who are eligible for attendance.") "A child shall be considered a resident of the school district in which his parents or the guardian of his person resides." 24 Pa. Con. Stat. Ann. § 13-1302; accord S.E. School Dist. Policy 200 ("District of residence shall be defined as the school district in which a student's parents/guardians reside."). No district is required to accept non-residents in its public schools. See 24 Pa. Cons.Stat. Ann. §§ 5-501, 13-1301.

Further, the IDEA only requires a school district to make a FAPE available to a child residing within its district. See L.G. Wissahickon School Dist., 2011 WL 13572, *11.

In Bell v. Pennsbury School Dist., 2011 WL 292241, *5 (E.D. Pa. 1-31-11), the Court stated:

Pennsylvania law provides that "[a] child shall be considered a resident of the school district in which his parents or the guardian of his person resides." 24 Pa. Stat. Ann.. § 13--1302(a). It further provides that "[w]hen the parents reside in different school districts due to separation, divorce or other reason, the child may attend school in the district of residence of the parent with whom the child lives for a majority of the time[.]" 22 Pa.Code § 11.11(a)(1) (emphasis added). Pennsylvania courts have construed relevant law to mean that, for schooling purposes, a student simply cannot have two residences. See Lushen v. Peters Twp. Sch. Dist., 65 Pa. D. & C.2d 712, 714, 1974 WL 15505 (Wash.Co. Mar. 4, 1974) (finding that interpreting Section 13--1302 to allow a student to have two residences would "cause so many undesirable consequences as to render such an interpretation absurd.");

In re Huck/Fossleitner Appeal, 435 Pa. 325, 334, 257 A.2d 522 (Pa.1969) cert. denied 397 U.S. 1040, 90 S.Ct. 1360, 25 L.Ed.2d 651 (1970)); Mathias v. Richland Sch. Dist., 140 Pa.Cmwlth. 298, 301, 592 A.2d 811 (Pa.Cmwlth.1991).

Since it appears that Plaintiff's children live with her outside of CDSD and not with Plaintiff's mother in CDSD, any claim of Plaintiff seeking to force CDSD to enroll her children fails as a matter of law. Id.

V. Recommendation.

Based on the foregoing, it is respectfully recommended that Plaintiff's Complaint be dismissed without prejudice. It is further recommended that Plaintiff's Motion for Leave to Proceed in forma pauperis (Doc. 2) be granted solely for the purpose of filing this action.

Thomas M. Blewitt




(Judge Jones)

(Magistrate Judge Blewitt)


NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 31, 2011. Any party may obtain a review of the Report and Recommendation pursuant to 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.

THOMAS M. BLEWITT United States Magistrate Judge

Dated: August 31, 2011

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