UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSHUA LOOKINGBILL, : 4:13-CV-01636

:

Plaintiff : (Judge Brann)

 : 

v. : (Magistrate Judge Schwab)

 : 

ANTHONY FETROW, : 

 :

 Defendant :

REPORT AND RECOMMENDATION

I. Introduction.

In 2014, the plaintiff, Joshua Lookingbill, was convicted of murder and other 

charges in the Court of Common Pleas of York County, Pennsylvania, and he was 

sentenced to life imprisonment. Before his conviction, he filed this case claiming,

among other things, that he was arrested without probable cause and without a 

warrant. There is only one defendant remaining, and that defendant filed a motion 

to dismiss the amended complaint. Despite being repeatedly ordered to do so, 

Lookingbill has not filed a brief in opposition to the motion to dismiss. After 

analyzing the applicable factors, we conclude the case should be dismissed based on 

Lookingbill’s failure to prosecute this action. In the alternative, we recommend

that the defendant’s motion to dismiss the amended complaint be granted. 

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 1 of 20
2

II. Background and Procedural History.

Lookingbill is a prisoner, who filed a civil rights complaint under 42 U.S.C. 

§ 1983 along with an application to proceed in forma pauperis. We granted 

Lookingbill’s application to proceed in forma pauperis, but after screening the 

complaint, we determined that the complaint failed to state a claim upon which relief 

may be granted. We granted Lookingbill leave to file an amended complaint, 

which he did. The amended complaint named the following three defendants: 

(1) Anthony Fetrow, a detective with the York City Police Department; (2) Richard 

E. Martin II, a York County Magisterial District Judge; and (3) Bruce Blocher, the 

Chief Public Defender for York County. 

According to Lookingbill, on January 31, 2013, around 10:25 a.m., Detective 

Fetrow arrested him at his place of employment, in a private secured office, without 

a warrant and without probable cause. Lookingbill alleges that Fetrow then took 

his cell phone and personal possessions. Later that day, Lookingbill alleges, Judge 

Martin approved a criminal complaint and signed a search warrant for Lookingbill’s 

residence. According to Lookingbill, Judge Martin waited to arraign him until after 

the search warrant had been returned, which was several hours after it had been 

issued. Lookingbill complains that this unnecessarily delayed his arraignment. 

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 2 of 20
3

He alleges that a couple of weeks later, Blocher advised him to waive his 

preliminary hearing. He also alleges that Blocher violated the Rules of 

Professional Responsibility by giving confidential information to the prosecution. 

Lookingbill sought compensatory and punitive damages against all three defendants 

as well as injunctive relief against defendant Blocher. 

The Court dismissed all claims against Martin and Blocher. Thus, the only 

remaining defendant is Detective Fetrow, who, Lookingbill alleges, arrested him 

without probable cause and without a warrant. Lookingbill asserts claims against 

Fetrow under the Fourth Amendment, the Due Process Clause, and the Equal 

Protection Clause.

Fetrow filed a motion to dismiss the amended complaint, and we ordered 

Lookingbill to file a brief in opposition to that motion on or before December 29, 

2014. Lookingbill, however, did not file a brief in opposition. After denying 

Lookingbill’s motion for the appointment of counsel, we sua sponte granted 

Lookingbill an extension of time to January 13, 2015 to file a brief in opposition to 

the motion to dismiss. We also noted that if Lookingbill failed to file a brief in 

opposition, we may deem him to have abandoned this action. Lookingbill later 

requested and received an extension of time until February 27, 2015 to file his brief 

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 3 of 20
4

in opposition. Still, he did not file a brief in opposition. Rather, he filed a 

document requesting that this case be stayed until the conclusion of his criminal 

proceedings. We denied Lookingbill’s request for a stay because we thought we 

should determine whether the amended complaint states any claims upon with relief 

can be granted before considering whether to stay the case. We noted that it would 

be useless to stay a claim or claims that fail to state a claim upon which relief can be 

granted. Thus, we denied Lookingbill’s request for a stay without prejudice to the 

Court considering, after the motion to dismiss is decided, whether a stay is 

appropriate. We gave Lookingbill one final opportunity to file a brief in opposition 

to the defendant’s motion to dismiss the amended complaint. And we again warned 

him that if he failed to file a brief in opposition, we may deem him to have 

abandoned this action. Still, Lookingbill has not filed a brief opposition to the 

motion to dismiss.

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 4 of 20
5

III. Discussion.

A. Under the Rules of this Court, Lookingbill Should Be Deemed Not to 

Oppose the Motion to Dismiss.

At the outset, under the Local Rules of this Court, Lookingbill should be 

deemed not to oppose the pending motion to dismiss since he has failed to timely 

oppose that motion. 

Local Rule 7.6 imposes an affirmative duty on a litigant to respond to motions 

and provides that “[a]ny party who fails to comply with this rule shall be deemed not 

to oppose such motion.” At the time that he filed his complaint, Lookingbill

received a copy of the Court’s Standing Practice Order, which set forth his 

obligations with respect to responding to a motion. Doc. 3-1 at 2. 

In this case, Lookingbill has not complied with Local Rule 7.6 or this Court’s 

orders to file a brief in opposition to the motion to dismiss. These procedural 

defaults compel us to consider:

[A] basic truth: we must remain mindful of the fact that “the 

Federal Rules are meant to be applied in such a way as to 

promote justice. See Fed.R.Civ.P. 1. Often that will mean that 

courts should strive to resolve cases on their merits whenever 

possible. However, justice also requires that the merits of a 

particular dispute be placed before the court in a timely fashion. . 

. .” 

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 5 of 20
6

Lease v. Fishel, 712 F.Supp.2d 359, 371 (M.D.Pa. 2010)(quoting McCurdy v. 

American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir. 1998)). With this 

basic truth in mind, we acknowledge a fundamental guiding tenet of our legal 

system. A failure on our part to enforce compliance with the rules, and impose the 

sanctions mandated by those rules when the rules are repeatedly breached, “would 

actually violate the dual mandate which guides this court and motivates our system 

of justice: ‘that courts should strive to resolve cases on their merits whenever 

possible [but that] justice also requires that the merits of a particular dispute be 

placed before the court in a timely fashion.’” Id. Therefore, we are obliged to 

ensure that one party’s refusal to comply with the rules does not lead to an 

unjustified prejudice to those parties who follow the rules.

Such basic principles of fairness apply here. In this case, Lookingbill failed 

to comply with Local Rule 7.6; he failed to file a brief in opposition to the pending 

motion to dismiss after being ordered to do so a number of times and after being 

warned that his failure to file a brief in opposition may be construed as his 

abandoning this case. These failures now compel us to deem Lookingbill to not 

oppose the pending motion to dismiss.

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 6 of 20
7

Nevertheless, Lookingbill’s failure to file a brief in opposition alone is not 

sufficient for the court to dismiss the case. In Stackhouse v. Mazurkiewicz, 951 

F.2d 29 (3d Cir. 1991), the Third Circuit reversed a district court’s dismissal based 

on the pro se plaintiff’s failure to file a brief in accordance with a local rule of court. 

The Third Circuit stated that failure to obey the local rule should not form the basis 

for dismissal without an analysis of the merits of the case. Id. at 30. It noted that 

dismissal was not to be ruled out if the party was represented by an attorney and in 

fact did not oppose the motion. Id. It also noted: “Nor do we suggest that if a party 

fails to comply with the rule after a specific direction to comply from the court, the 

rule cannot be invoked. Thus, our holding is not broad.” Id. at 30. 

Although this caveat from the Stackhouse case might suggest that we could 

grant the pending motion to dismiss based on Lookingbill’s failure to file a brief in 

opposition after being ordered to do so by the Court, the Third Circuit has 

subsequently declined “to adopt an interpretation of Stackhouse under which a 

district court may dismiss a case solely because a plaintiff misses a briefing deadline 

set forth in a local rule or court-ordered briefing schedule.” Hernandez v. 

Palakovich, 293 F.App’x 890, 895 (3d Cir. 2008). Rather, the Third Circuit has 

held that before dismissing a case as a sanction for failure to follow a court rule or 

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 7 of 20
8

court order, a court must consider the factors set forth in the seminal Poulis case. Id. 

at 894 (citing Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir. 

1984)); see also Shuey v. Schwab, 350 F.App’x 630, 633 (3d Cir. 2009)(“Poulis has 

been cited too often and is too deeply ingrained in the jurisprudence of this court and 

the district courts of this circuit for a court to assume that a party’s failure to respond 

to a motion to dismiss can be regarded as an abandonment of the claim. Poulis

governs the District Court’s decision to dismiss the Shuey’s claim, and it was error 

to dismiss without first considering the Poulis factors.”). Thus, we turn to a 

consideration of the Poulis factors.

B. Consideration of the Poulis Factors Warrants Dismissal of this Case

or in the Alternative, the Defendant’s Motion to Dismiss Should Be 

Granted.

If the plaintiff fails to prosecute a case or to comply with court rules or court 

orders, pursuant to Fed.R.Civ.P. 41(b), the Court may dismiss the action. Even 

though dismissal is an available sanction, it is a drastic sanction that “should be 

reserved for those cases where there is a clear record of delay or contumacious 

conduct by the plaintiff.” Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 

342 (3d Cir. 1982). Decisions regarding dismissal of actions for failure to 

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 8 of 20
9

prosecute rest in the sound discretion of the Court and will not be disturbed absent an 

abuse of that discretion. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002). 

But that discretion, while broad, is governed by the following factors, commonly 

referred to as Poulis factors, which the Court must balance in deciding whether to 

dismiss a case:

(1) the extent of the party’s personal responsibility; (2) the 

prejudice to the adversary caused by the failure to meet 

scheduling orders and respond to discovery; (3) a history of 

dilatoriness; (4) whether the conduct of the party or the attorney 

was willful or in bad faith; (5) the effectiveness of sanctions 

other than dismissal, which entails an analysis of alternative 

sanctions; and (6) the meritoriousness of the claim or defense.

Poulis, 747 F.2d at 868. No single factor is dispositive, Briscoe v. Klaus, 538 F.3d 

252, 263 (3d Cir. 2008), and each factor need not be satisfied for the court to dismiss 

an action, Ware v. Rodale Press, Inc., 322 F.3d 218, 221 (3d Cir. 2003). In this 

case, an assessment of the Poulis factors weighs in favor of dismissing this action. 

The first Poulis factor is the extent of the party’s personal responsibility. A 

pro se litigant is personally responsible for failure to comply with the Court’s rules 

and orders. In this case, Lookingbill is proceeding pro se, and so he is responsible 

for his failure to file a brief in opposition to the pending motion to dismiss, as 

required by the Local Rule and as ordered by the Court. In sum, Lookingbill is 

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 9 of 20
10

responsible for his failure to comply with the court rules and court orders, and he is 

also responsible for his failure to litigate this case.

The second Poulis factor is prejudice to the adversary. Examples of 

prejudice are “the irretrievable loss of evidence, the inevitable dimming of 

witnesses’ memories, or the excessive and possibly irremediable burdens or costs 

imposed on the opposing party.” Scarborough v. Eubanks, 747 F.2d 871, 876 (3d 

Cir. 1984). Prejudice for purposes of the Poulis analysis, however, does not mean 

irremediable harm. Ware, 322 F.3d at 222. “[T]he burden imposed by impeding a 

party’s ability to prepare effectively a full and complete trial strategy is sufficiently 

prejudicial.” Id. In this case, Lookingbill’s failure to litigate this case and comply 

with court rules and court orders frustrates and delays resolution of this action, and 

such failure to litigate can be seen to prejudice the defendant, who seeks a timely 

resolution of the case. 

The third Poulis factor is a history of dilatoriness. While “conduct that 

occurs one or two times is insufficient to demonstrate a ‘history of dilatoriness,’” 

Briscoe, 538 F.3d at 261, “[e]xtensive or repeated delay or delinquency constitutes a 

history of dilatoriness, such as consistent non-response to interrogatories, or 

consistent tardiness in complying with court orders.” Adams v. Trs. of N.J. Brewery 

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 10 of 20
11

Emps.’ Pension Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994). A “party’s 

problematic acts must be evaluated in light of [her] behavior over the life of the 

case.” Id. at 875. In this case, Lookingbill has a history of dilatoriness. He failed 

to file a brief in opposition to the pending motion to dismiss after being order to do 

so. He again failed to file a brief in opposition to the motion to dismiss after we sua 

sponte granted him an extension of time to do so and despite the fact that we warned 

him that if he failed to file a brief in opposition, we may deem him to have 

abandoned this action. Then, he again failed to file a brief in opposition after we 

gave him one final opportunity to file his brief opposition, and we again warned him 

that we may deem him to have abandoned this action if he failed to file a brief in 

opposition. In sum, Lookingbill was given opportunity after opportunity to file a 

brief in opposition, but he still failed to do so.

The fourth Poulis factor is whether the conduct was willful or in bad faith. 

“Willfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 875. 

Here, Lookingbill was repeatedly ordered to file a brief in opposition to the motion 

to dismiss, but he did not do so. Moreover, he was warned of the possible 

consequences of failing to file a brief in opposition. Lookingbill’s repeated failure 

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 11 of 20
12

to comply with the court’s orders leads to an inference that he has willfully 

abandoned this case.

The fifth Poulis factor is the effectiveness of alternate sanctions. Dismissal 

is a sanction of last resort, and it is incumbent upon a court to explore the 

effectiveness of lesser sanctions before ordering dismissal. Poulis, 747 F.2d at 868. 

Lookingbill is proceeding pro se and in forma pauperis, and there is no evidence to 

support a reasonable inference that he would be able to pay monetary sanctions. 

Therefore, monetary sanctions, including attorney’s fees and costs, would not be an 

effective sanction in this case. Moreover, Lookingbill’s failure to comply with the 

Court’s orders leads to an inference that further orders to him would not be effective. 

In this case, no sanction short of dismissal would be effective. 

The sixth Poulis factor is the meritoriousness of the claim. In this inquiry, a 

claim will be deemed meritorious when the allegations of the complaint, if 

established at trial, would support recovery. Poulis, 747 F.2d at 870. The defendant 

has presented strong arguments for why the Court should dismiss the amended 

complaint.

Lookingbill alleges that Fetrow arrested him without a warrant and without 

probable cause. But Lookingbill’s allegations in this regard are conclusory. As to 

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 12 of 20
13

the warrant requirement, Lookingbill alleges that Fetrow arrested him in an office at 

his place of employment, which is located on private property. But Lookingbill 

does not allege facts from which a reasonable inference can be drawn that he had a 

reasonable expectation of privacy in the office of his employer. Nor does he allege 

that his employer had not given consent for Fetrow to enter the property. 

As to the issue of probable cause, Lookingbill alleges the following:

Alleged offense occurred at 4:30 a.m the police 

questioned people concerning this offense my names was 

brought in to question but the information was not reliable do to 

the fact they stated they knew me but did not see anything 

making it a unclear suspicion.

No determination of probable cause detective spoke with my 

father roger lookingbill he talked to detective fetrow over the on 

pone giving him by ware about at 8:45 am.

A complaint nor was a affidavit of probable cause filed till later 

that day at 4:45 pm arrest took place at 10:25 am there was 

never a a determination made from a neutral and detached 

magistrate.

Doc. 11 at 5 (errors in original).1 Although Lookingbill refers to information that 

others gave to the police and he concludes that such information was insufficient to 

establish probable cause, he does not allege what information was given to the 

 

1

Lookingbill’s failure to adhere to basic rules of grammar, punctuation, and 

capitalization make his allegations difficult to follow.

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 13 of 20
14

police. That information, however, is contained in Fetrow’s affidavit of probable 

cause attached to the criminal complaint:

1/31/13 at 4:21AM, Olga Cuadra of 412 S. Pershing Ave., 2nd 

flr., called 911 when she awoke because her boyfriend Nakia 

Williams was moving around in their bed. Williams sat up and

told her to call the cops and an ambulance and then fell back in 

bed. She noticed that the victim’s body was all bloody. Police 

and EMS personnel responded and Williams was pronounced 

dead from multiple stab wounds. Olga’s 7-yr. old son 

immediately came to her and advised that he had just seen the 

def. Joshua Lookingbill run downstairs from the area of the 2nd 

flr. Lookingbill is the father of three of Olga’s children. Olga 

stated that Lookingbill had made prior threats to kill the victim.

I later spoke with Roger Lookingbill, the def.’s father, 

who stated that he picked the def. up at his residence at about 

6:15 AM and took him to work. The def. told his father that he 

was in a fight with a male. He then called his father around 

8AM from work asking if the police had called for him or if they 

were coming to his work to get him. Roger told him no.

Doc. 28-3 at 5.2

 

2 When deciding a motion to dismiss, courts generally consider only the allegations 

contained in the complaint, exhibits attached to the complaint, and matters of public 

record. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 

(3d Cir. 1993). The Court may, however, also consider an undisputedly authentic 

document that a defendant attaches as an exhibit to a motion to dismiss if the 

plaintiff’s claims are based on that document. Id. “A document forms the basis of a 

claim if the document is ‘integral to or explicitly relied upon in the complaint.’” Lum 

v. Bank of America, 361 F.3d 217, 222 n.3 (3d Cir. 2004)(quoting In re Burlington 

Coat Factory Sec. Litigation, 114 F.3d 1410, 1426 (3d Cir. 1997)). Here, Fetrow 

attached the criminal complaint to his motion to dismiss, and Lookingbill refers to 

the criminal complaint and affidavit of probable cause in his amended complaint. 

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 14 of 20
15

The Fourth Amendment states, in pertinent part, that “[t]he right of the people 

to be secure in their persons ... against unreasonable searches and seizures, shall not 

be violated, and no Warrants shall issue, but upon probable cause....” U.S. CONST. 

Amend. IV. “To state a claim for false arrest under the Fourth Amendment, a 

plaintiff must establish: (1) that there was an arrest; and (2) that the arrest was made 

without probable cause.” James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 

2012). “The probable-cause standard is incapable of precise definition or 

quantification into percentages because it deals with probabilities and depends on 

the totality of the circumstances.” Maryland v. Pringle, 540 U.S. 366, 371 (2003). 

“Probable cause to arrest exists when 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.” Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 1995). An 

 

Moreover, Lookingbill alleges that there was information given to the police about 

him before his arrest. Under these circumstances, it is appropriate to consider the 

affidavit of probable cause to determine what information Fetrow had before the 

arrest. In this regard, we note that Lookingbill does not allege that Fetrow lied in 

the affidavit of probable cause. Rather, he merely alleges that the information 

available to Fetrow at the time did not establish probable cause for his arrest.

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 15 of 20
16

“officer may draw inferences based on his own experience in deciding whether 

probable cause exists.” Ornelas v. United States, 517 U.S. 690, 700 (1996).

Here despite Lookingbill’s suggestion otherwise, Fetrow had probable cause 

to arrest. The information available to Fetrow included a statement from the 

mother of Lookingbill’s children that Lookingbill had threatened to kill the victim 

and that her son had told her immediately after the victim was stabbed that he saw 

Lookingbill run from the scene. This information is sufficient to provide Fetrow 

with probable cause to arrest Lookingbill. Thus, the amended complaint fails to 

state a false arrest claim upon which relief can be granted.

The amended complaint also fails to state an equal protection claim upon 

which relief can be granted since Lookingbill does not allege facts from which it can 

reasonably be inferred that he was treated differently than other similarly situated 

individuals, a necessary element of an equal protection claim. See Hill v. Borough of 

Kutztown, 455 F.3d 225, 239 (3d Cir. 2006); Oliveira v. Twp. of Irvington, 41 F. 

App’x 555, 559 (3d Cir. 2005). 

Further, the amended complaint fails to state a due process claim upon which 

relief can be granted. To the extent the due process claim is based on Lookingbill’s 

arrest, it is duplicative of his Fourth Amendment claim. And to the extent that the 

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 16 of 20
17

due process claim is based on based on the confiscation of Lookingbill’s property 

after his arrest, it fails because Lookingbill had an adequate post-deprivation remedy 

for the return of his property. More specifically, Pa.R.Crim.P. 588 provides a 

procedure for the return of property seized during a criminal investigation, and 

courts “have consistently held” that the Rule “provides an adequate post-deprivation 

remedy.” Guarrasi v. Cnty. of Bucks, No. CIV.A. 10-1879, 2011 WL 1226118, at *9 

(E.D. Pa. Mar. 29, 2011); see also McKenna v. Portman, 538 F. App’x 221, 225 (3d 

Cir. 2013)(“Pennsylvania Rule of Criminal Procedure 588 provides an adequate 

post-deprivation remedy when police seize property pursuant to an investigation.”). 

Courts have also recognized that a state-law conversion or replevin case provides an 

adequate post-deprivation remedy in situations of seized property. Stasko v. 

Lebanon Cnty. Drug Task Force, No. 1:12-CV-1156, 2012 WL 6561726, at *9-10 

(M.D. Pa. Dec. 17, 2012)(“In short, if Plaintiff believes his vehicle is being 

improperly withheld pursuant to a seizure in connection with criminal proceedings, 

a motion for return of property pursuant to Rule 588 is adequate to cause the 

property to be returned. Insofar as Plaintiff claims that Defendants’ retention of his 

property is a “random and unauthorized act” separate and apart from the criminal 

investigation, Plaintiff is capable of filing a state law tort action in state court 

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 17 of 20
18

seeking the return of his property.”); Olarte v. Cywinski, No. 3:12-CV-632, 2012 

WL 3757649, at *6 (M.D. Pa. Aug. 28, 2012)(“We agree with defendant that 

Pennsylvania law provided plaintiff with adequate post-deprivation remedies. 

Courts have found that Pennsylvania law provides for such adequate remedies 

through replevin and conversion claims.”). Given the availability of an adequate 

post-deprivation remedy in the form of either a Rule 588 motion or a 

replevin/conversion claim, Lookingbill’s Fourteenth Amendment due process claim

fails.3

In sum, the Poulis factors weigh in favor of dismissal. Lookingbill has 

repeatedly failed to comply with Court orders even after being warned of the 

possible consequences of doing so. Thus, we will recommend that the Court

dismiss the case pursuant to Fed.R.Civ.P. 41(b) and the Poulis factors. In the 

alternative, for the reasons set forth above, it is recommend that the Court grant the 

pending motion to dismiss the amended complaint.

 

3

Fetrow asserts additional reasons for dismissal of the amended complaint, but 

since we determine that the amended complaint fails to state a claim upon which 

relief can be granted for the above reasons, we need not address those arguments.

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 18 of 20
19

IV. Recommendations.

Accordingly, for the foregoing reasons, it is recommended that the Court 

dismiss this action in accordance with Fed.R.Civ.P. 41(b) or, in the alternative, grant 

the motion (doc. 27) to dismiss the amended complaint.

The Parties are 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

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 19 of 20
20

further evidence, recall witnesses or recommit the matter to the 

magistrate judge with instructions.

Submitted this 2nd day of June, 2015.

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge

Case 4:13-cv-01636-MWB Document 38 Filed 06/02/15 Page 20 of 20