UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DANNY KEITH MERTSOCK, : CIVIL NO. 4:15-CV-2429 

:

Plaintiff, : (Chief Judge Conner)

:

v. : (Magistrate Judge Carlson)

 :

:

SHINGLEHOUSE BOROUGH, :

:

Defendant. :

REPORT AND RECOMMENDATION

I. Statement of Facts and of the Case

This is one of two closely related cases filed by the plaintiff, who is proceeding

pro se.1 On December 9, 2015, the plaintiff filed this federal civil rights action. (Doc.

1.) Liberally construed, in this complaint Mertsock alleges that he has been harassed

and stalked by a Shinglehouse Borough police officer, Bradley Buccholz, in retaliation

of Mertsock’s local political campaigning activity. (Id.) The factual narrative in

support of this claim, however, is sparse and largely consists of events which are

alleged to have occurred more than 2 years ago. Further, in this lawsuit, Mertsock

seeks to sue the borough itself. Such municipal liability claims typically require

pleading and proof that the action of the police officer was part of a custom or policy

1

See Mertsock v. Buccholz, Civil No. 4:15-CV-2363.

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of the municipality, allegations that are notably lacking in this complaint, as it is

presently drafted. On the basis of these allegations, Mertsock sues the defendant,

seeking unspecified damages, but observing that an unnamed lawyer has advised him

that his claim is worth millions of dollars. (Id.) 

Mertsock has not paid the filing fee, and in his companion case Mertsock filed

a motion seeking leave to proceed in forma pauperis, a request that we construe as

applying to both cases submitted by this Plaintiff. For the reasons set forth below, we

will grant the Plaintiff leave to proceed in forma pauperis, but as part of our legallymandated screening review we find that a number of the specific claims lodged by

Mertsock are barred by the two-year statute of limitations which applies to federal

civil rights claims. We further find that Mertsock has not pleaded sufficient facts to

allow a municipal liability claim to proceed forward at this time. Therefore, for the

reasons set forth below, we recommend that the court dismiss this complaint, without

prejudice to Mertsock attempting to address the issues identified in this Report and

Recommendation through the filing of an amended complaint.

II. Discussion

A. Screening of Pro Se Complaints–Standard of Review

This Court has a statutory obligation to conduct a preliminary review of pro se

complaints brought by plaintiffs given leave to proceed in forma pauperis in cases

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which seek redress against government officials. See 28 U.S.C. § 1915(e)(2)(B)(ii).

Specifically, when reviewing in forma pauperis complaints, 28 U.S.C. §

1915(e)(2)(B)(ii) specifically enjoins us to “dismiss the complaint at any time if the

court determines that . . . the action . . . fails 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 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

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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, “[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

complaint, the Supreme Court has advised trial courts that they must:

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[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. Rather, a complaint 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: 

[A]fter 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

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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, 182 L. Ed. 2d 644 (U.S.

2012).

In practice, consideration of the legal sufficiency of a complaint entails a threestep 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.’ Id.” Santiago v. Warminster Tp., 629

F.3d 121, 130 (3d Cir. 2010).

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

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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

which 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.

Applying these legal benchmarks, we conclude that this complaint in flawed in

the ways described below and should, therefore, be dismissed

B. Mertsock’s Current Complaint Fails to Meet the Pleading 

Standards Prescribed by Law Because Some of the Claims Set

Forth in the Complaint Are Barred by the Statute of

Limitations

At the outset, Mertsock’s current pro se complaint is flawed, in part, because

it asserts claims which fall beyond the period of the statute of limitations. In this

regard, when conducting a screening review of a pro se complaint under 28 U.S.C. §

1915, a court may consider whether the complaint is barred under the applicable

statute of limitations. As the United States Court of Appeals for the Third Circuit

recently explained when it affirmed the screening dismissal of a pro se complaint on

statute of limitations grounds:

Civil rights claims are subject to the statute of limitations for personal

injury actions of the pertinent state. Thus, Pennsylvania's two year

statutory period applies to [these] claims. See Lake v. Arnold, 232 F.3d

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360, 368 (3d Cir.2000). The limitations period begins when the

plaintiff knows or had reason to know of the injury forming the basis

for the federal civil rights action. Gera v. Commonwealth of

Pennsylvania, 256 Fed.Appx. 563, 564-65 (3d Cir.2007). Although we

have not addressed the issue in a precedential decision, other courts

have held that although the statute of limitations is an affirmative

defense, district court may sua sponte dismiss a complaint under §

1915(e) where the defense is obvious from the complaint and no

development of the factual record is required. See Fogle v. Pierson, 435

F.3d 1252, 1258 (10th Cir.2006); see also Eriline Co. S.A. v. Johnson,

440 F.3d 648, 656-57 (4th Cir.2006) (citation omitted)(finding that a

district court's screening authority under § 1915(e) “differentiates in

forma pauperis suits from ordinary civil suits and justifies an exception

to the general rule that a statute of limitations defense should not be

raised and considered sua sponte.”).

Smith v. Delaware County Court 260 F. App’x. 454, 455 (3d Cir. 2008); see also

Jackson v. Fernandez, No. 08-5694, 2009 WL 233559 (D.N.J. Jan. 26, 2009);

Hurst v. City of Dover, No. 04-83, 2008 WL 2421468 (D. Del. June 16, 2008).

Applying these standards, we find that the allegations in this pro se complaint

which pre-date December 2013 are subject to dismissal on statute of limitations

grounds. It is well-settled that claims brought pursuant to 42 U.S.C. § 1983 are subject

to the state statute of limitations for personal injury actions. Wilson v. Garcia, 471

U.S. 261, 266-67 (1985). In Pennsylvania, the statute of limitations for a personal

injury action is two years. 42 Pa.C.S. § 5524. A cause of action accrues for statute of

limitations purposes when the plaintiff knows or has reason to know of the injury that

constitutes the basis of the cause of action. Sameric Corp. of Delaware, Inc. v. City

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of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998); see also, Nelson v. County of

Allegheny, 60 F.3d 1010 (3d Cir. 1995). 

While this two-year limitations period may be extended based upon a

continuing wrong theory, a plaintiff must make an exacting showing to avail himself

of this grounds for tolling the statute of limitations. For example, it is well settled that

the “continuing conduct of [a] defendant will not stop the ticking of the limitations

clock [once] plaintiff obtained requisite information [to state a cause of action]. On

discovering an injury and its cause, a claimant must choose to sue or forego that

remedy.” Barnes v. American Tobacco Co., 161 F.3d 127, 154 (3d Cir. 1998) (quoting

Kichline v. Consolidated Rail Corp., 800 F. 2d 356, 360 (3d Cir. 1986)). See also

Lake v. Arnold, 232 F.3d 360, 266-68 (3d Cir. 2000). Instead:

The continuing violations doctrine is an “equitable exception to the

timely filing requirement.” West v. Philadelphia Elec. Co., 45 F.3d 744,

754 (3d Cir.1995). Thus, “when a defendant's conduct is part of a

continuing practice, an action is timely so long as the last act evidencing

the continuing practice falls within the limitations period; in such an

instance, the court will grant relief for the earlier related acts that would

otherwise be time barred.” Brenner v. Local 514, United Bhd. of

Carpenters and Joiners of Am., 927 F.2d 1283, 1295 (3d Cir.1991).In

order to benefit from the doctrine, a plaintiff must establish that the

defendant's conduct is “more than the occurrence of isolated or sporadic

acts.” West, 45 F.3d at 755 (quotation omitted). Regarding this inquiry,

we have recognized that courts should consider at least three factors: (1)

subject matter-whether the violations constitute the same type of

discrimination, tending to connect them in a continuing violation; (2)

frequency-whether the acts are recurring or more in the nature of isolated

incidents; and (3) degree of permanence-whether the act had a degree of

permanence which should trigger the plaintiff's awareness of and duty to

assert his/her rights and whether the consequences of the act would

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continue even in the absence of a continuing intent to discriminate. See

id. at 755 n. 9 (citing Berry v. Board of Supervisors of Louisiana State

Univ., 715 F.2d 971, 981 (5th Cir.1983)). The consideration of “degree

of permanence” is the most important of the factors. See Berry, 715 F.2d

at 981.

Cowell v. Palmer Township. 263 F.3d 286, 292 (3d Cir. 2001)

In this case, Mertsock complains about an array of matters, many of which took

place between 2011 and 2013. As to these matters, Mertsock attached a high degree

of significance and permanence to the events set forth in this complaint when they

occurred. Thus, Mertsock recites well-pleaded facts in his complaint which clearly

reveal that, to the extent these events entailed violations of the plaintiff’s

constitutional rights, those violations were known and recognized by Mertsock when

they first occurred, many years ago. Thus, these events plainly had the degree of

significance and permanence which should have triggered the plaintiff's awareness of

his duty to assert his rights. Therefore, in this case a straightforward application of the

two-year statute of limitations also compels dismissal of these allegations of

misconduct pre-dating December 2013 from this action as untimely. 

Mertsock cannot save these time-barred claims by resort to the continuing

violation theory since that tolling doctrine “will not stop the ticking of the limitations

clock [once] plaintiff obtained requisite information [to state a cause of action]. On

discovering an injury and its cause, a claimant must choose to sue or forego that

remedy.” Barnes v. American Tobacco Co., 161 F.3d 127, 154 (3d Cir. 1998). Indeed,

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with respect to the controlling consideration relating to this equitable tolling doctrine,

“the degree of permanence [of the injury, i.e.]-whether the act had a degree of

permanence which should trigger the plaintiff's awareness of and duty to assert his

rights,” Cowell v. Palmer Township. 263 F.3d 286, 292 (3d Cir. 2001), it is apparent

that Mertsock subjectively identified the gravity and permanence of these events when

they occurred beginning in 2011. With respect to these matters described by Mertsock

which took place between 2011 and December 2013, more than two years then

elapsed before Mertsock filed the instant complaint. On these facts, Mertsock simply

cannot evade the bar of the statute of limitations on some continuing wrongs theory,

since the wrongs, if any, committed here were fully known by Mertsock more than

two years ago. Therefore, on the face of the complaint, these claims are all timebarred.

C. Mertsock Has Failed to State a Claim Against the Borough

 Further, to the extent that Mertsock seeks to hold Shinglehouse Borough liable

for alleged civil rights violations, he must meet an exacting burden of pleading and

proof. It is well-settled that local governmental entities may not be held liable under

§ 1983 for the acts of others under a theory of respondeat superior or vicarious

liability. Ashcroft v. Iqbal, 556 U.S. 662 (2009); see also Colburn v. Upper Darby

Twp., 946 F.2d 1017, 1027 (3d Cir. 1991). Instead, such an agency may only be held

liable “when execution of a government's policy or custom, whether made by its

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lawmakers or by those whose edicts or acts may fairly be said to represent official

policy, inflicts the injury that the government as an entity is responsible under §

1983.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). 

Thus, to sustain a claim against this institutional defendant, a plaintiff must

“identify a . . . ‘policy’ or ‘custom’ that caused the plaintiff's injury.” Bd. of County

Comm’rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997). This custom must be

“so widespread as to have the force of law.” Id. at 404; see also Beck v. City of

Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (a policy is an official proclamation or

edict of a municipality, while a custom is a practice that is “so permanent and well

settled as to virtually constitute law”) (quoting Andrews v. City of Phila., 895 F.2d

1469, 1480 (3d Cir. 1990) (citations omitted). The plaintiff must further “allege that

a ‘policy or custom’ of [the defendants] was the ‘moving force’ behind the

[constitutional] violation.” Grayson v. Mayview State Hosp., 293 F.3d 103, 107 (3d

Cir. 2002) (citing Brown, 520 U.S. at 404). A municipality can be held liable on the

basis of failure to train when “that failure amounts to ‘deliberate indifference . . . [of

the constitutional] rights of persons. . . .’” Woloszyn v. County of Lawrence, 396

F.3d 314, 324 (3d Cir. 2005) (citations omitted). There must also be a causal nexus,

in that the “‘identified deficiency in [the] training program must be closely related to

the ultimate [constitutional] injury.’” Id. at 325 (citations omitted). Therefore,

analysis of a claim under Monell requires separate analysis of two distinct issues: “(1)

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whether plaintiff’s harm was caused by a constitutional violation, and (2) if so

whether the [municipality] is responsible for that violation.” Collins v. City of Harker

Heights, Texas, 503 U.S. 115, 120 (1992).

An institutional defendant may also be liable for constitutional violations

resulting from inadequate training or supervision of its employees if the failure to train

amounts to a custom of the municipality. However, failure-to-train claims must meet

precise and demanding legal criteria. Such a failure must “amount[] to deliberate

indifference to the constitutional rights of persons with whom the police come in

contact.” Colburn, 946 F.2d at 1028 (citing City of Canton v. Harris, 489 U.S. 378,

388 (1989)). Proving agency liability on a theory of deliberate indifference is an

especially difficult showing for a plaintiff to satisfy where the plaintiff has alleged that

insufficient training or supervision has caused constitutional violations. Reitz v.

County of Bucks, 125 F.3d 139, 145 (3d Cir. 1997). Such a showing requires that “(1)

. . . lawmakers know that employees will confront a similar situation; (2) the situation

involves a difficult choice or a history of employees mishandling; and (3) the wrong

choice by an employee will frequently cause deprivation of constitutional rights.” 

Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999). Moreover, the plaintiff

proceeding on such a theory must establish that the agency’s “deliberate conduct . .

. was the ‘moving force’ behind the injury alleged.” Reitz, 125 F.3d at 145 (quoting

Brown, 520 U.S. at 404). Therefore, the need for training, supervision, or other

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corrective action to avoid imminent deprivations of a constitutional right “must be so

apparent that any reasonable policymaker or supervisor would have taken appropriate

preventive measures.” Horton v. City of Harrisburg, No. 06-2338, 2009 U.S. Dist.

LEXIS 63428, *13 (M.D. Pa. July 23, 2009) (quoting Strauss v. Walsh, No. Civ. A.

01-3625, 2002 U.S. Dist. LEXIS 24717, 2002 WL 32341791, at *3 (E.D. Pa. Dec. 17,

2002)). Additionally, in order to recover for municipal liability on a failure-to-train

theory, the alleged failure must be “closely related to the ultimate (constitutional)

injury.” Woloszyn, 396 F.3d at 325.

The Supreme Court has reaffirmed the exacting guiding principles which define

institutional civil rights liability based upon a failure to train or oversee law

enforcement officers. In Connick v. Thompson, – U.S.– , 131 S.Ct. 1350, 1359

(2011), the Court described the parameters of agency liability in the following terms:

A municipality or other local government may be liable . . .if the

governmental body itself “subjects” a person to a deprivation of rights

or “causes” a person “to be subjected” to such deprivation. See Monell

v. New York City Dept. of Social Servs., 436 U.S. 658, 692 (1978). But,

under § 1983, local governments are responsible only for “their own

illegal acts.” Pembaur v. Cincinnati, 475 U.S. 469, 479(1986) . . . . They

are not vicariously liable under § 1983 for their employees' actions. . . . 

Plaintiffs who seek to impose liability on local governments under §

1983 must prove that “action pursuant to official municipal policy”

caused their injury. Monell, 436 U.S., at 691. Official municipal policy

includes the decisions of a government's lawmakers, the acts of its

policymaking officials, and practices so persistent and widespread as to

practically have the force of law. . . . . These are “action[s] for which the

municipality is actually responsible.” Pembaur, supra, at 479–480. In

limited circumstances, a local government's decision not to train certain

employees about their legal duty to avoid violating citizens' rights may

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rise to the level of an official government policy for purposes of § 1983.

A municipality's culpability for a deprivation of rights is at its most

tenuous where a claim turns on a failure to train. See Oklahoma City v.

Tuttle, 471 U.S. 808, 822–823 (1985) (plurality opinion) (“[A] ‘policy’

of ‘inadequate training’ ” is “far more nebulous, and a good deal further

removed from the constitutional violation, than was the policy in Monell

”). To satisfy the statute, a municipality's failure to train its employees

in a relevant respect must amount to “deliberate indifference to the rights

of persons with whom the [untrained employees] come into contact.” .

. . . Only then “can such a shortcoming be properly thought of as a city

‘policy or custom’ that is actionable under § 1983. . . . “ ‘[D]eliberate

indifference’ is a stringent standard of fault, requiring proof that a

municipal actor disregarded a known or obvious consequence of his

action.” . . . . Thus, when city policymakers are on actual or constructive

notice that a particular omission in their training program causes city

employees to violate citizens' constitutional rights, the city may be

deemed deliberately indifferent if the policymakers choose to retain that

program.

Id. (some citations deleted).

Here, this complaint simply does not make sufficient allegations which would

permit a finding of institutional liability against the borough. With respect to these

institutional liability claims, 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.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) Id. at 555. “Factual

allegations must be enough to raise a right to relief above the speculative level.” Id.

Fairly construed, these pleadings amount to little more than a formulaic recitation of

the elements of a cause of action, a form of pleading that will not do. Therefore,

Mertsock’s claims against this institutional defendant also fail as a matter of law.

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While this screening merits analysis calls for dismissal of this action, we

recommend that the Plaintiff be given another, final opportunity to further litigate this

matter by endeavoring to promptly file an amended complaint setting forth claims

within the period of the statute of limitations. We recommend this course mindful of

the fact 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). Accordingly, it is recommended that the Court provide the

plaintiff with an opportunity to correct these deficiencies in the pro se complaint, by

dismissing this complaint without prejudice to one final effort by the Plaintiff to

comply with the rules governing civil actions in federal court, by filing an amended

complaint containing any timely and proper claims which he may have

III. Recommendation

Accordingly, for the foregoing reasons, the Plaintiff’s motion for leave to

proceed in forma pauperis is GRANTED, but IT IS RECOMMENDED that the

Plaintiff’s complaint be dismissed without prejudice to the plaintiff endeavoring to

correct the defects cited in this report, provided that the plaintiff acts within 20 days

of any dismissal order.

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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 further evidence, recall witnesses

or recommit the matter to the magistrate judge with instructions.

Submitted this 18th day of December, 2015.

S/Martin C. Carlson 

Martin C. Carlson

 United States Magistrate Judge

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