Opinion
5:18-CV-00607 (TJM/TWD)
07-02-2018
SAMUEL ALEXANDER, Plaintiff, v. THOMAS J. MURPHY, et al., Defendants.
APPEARANCES: SAMUEL ALEXANDER 24144-052 Plaintiff pro se Fort Dix Federal Correctional Institution P.O. Box 2000 Joint Base MDL, NJ 08640
APPEARANCES: SAMUEL ALEXANDER
24144-052
Plaintiff pro se
Fort Dix
Federal Correctional Institution
P.O. Box 2000
Joint Base MDL, NJ 08640 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
The Clerk has sent to the Court for initial review two complaints submitted by pro se Plaintiff Samuel Alexander in this 42 U.S.C. § 1983 civil rights action against Defendants attorney Thomas J. Murphy, Esq. ("Murphy"), and law firms Greene Hershdorfer & Sharpe ("Greene Hershdorfer"), and Pappas, Cox, Kimpel, Dodd & Levine, PC ("Pappas Cox"). (Dkt. Nos. 1 and 1-1.) Also before the Court is Plaintiff's application for leave to proceed in forma pauperis ("IFP Application"). (Dkt. No. 2.)
One of Plaintiff's complaints is captioned in the Northern District of New York. (Dkt. No. 1.) Named Defendants are Thomas J. Murphy, Esq., and law firm Greene Hershdorfer & Sharpe. Id. The other, in which the factual allegations are largely the same, is captioned in the Western District of New York and names Thomas J. Murphy, Esq., and law firms Greene Hershdorfer & Sharpe, and Pappas, Cox, Kimpel, Dodd & Levine, PC as Defendants. (Dkt. No. 1-1.) In light of Plaintiff's pro se status, the Court will consider the complaints together as a single pleading (referred to herein as "complaint") for purposes of initial review under 28 U.S.C. § 1915(e).
Docket references which do not reference a specific criminal case number refer to the docket in this action.
I. PLAINTIFF'S IFP APPLICATION
A court may grant in forma pauperis status if a party "is unable to pay" the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1) (2006). The Hon. Thomas J. McAvoy, Senior U.S. District Judge, initially denied Plaintiff's IFP Application as incomplete and ordered the action administratively closed in a Text Order entered on May 23, 2018. (Dkt. No. 3.) Plaintiff was allowed thirty days to submit an Inmate Authorization Form or pay the filing fee to commence the action. Id. Plaintiff thereafter submitted an Affidavit of Poverty and Certification (Dkt. No. 4) and the required Inmate Authorization Form. (Dkt. No. 6.)
The Affidavit of Poverty and Certification (habeas corpus) is a United States District Court, District of New Jersey form "for use by a prisoner applying to proceed in forma pauperis in a habeas corpus" proceeding. (Dkt. No. 4 at 1.)
In reviewing Plaintiff's IFP Application (Dkt. No. 2), the Court notes that Plaintiff checked the "yes" box in response to question 5, which asks whether he "own[s] any real estate, stocks, bonds, securities, other financial instruments, automobiles or any other assets." Id. at 2. However, Plaintiff failed to respond to the instruction in question 5 to "describe the property and state its value." Id. In the Affidavit of Poverty and Certification (habeas corpus) filed by Plaintiff, he checked the "no" boxes in response to question 6 asking whether he had a checking or savings account in his name and question 7 asking "[d]o you own any other assets or property." (Dkt. No. 4 at 2-3.)
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
Plaintiff's failure to respond fully as to assets he acknowledged having in his IFP Application (Dkt. No. 2), and his conflicting response as to assets in his Affidavit of Poverty and Certification (habeas corpus) (Dkt. No. 4), have left the Court uncertain as to whether Plaintiff is entitled to proceed in forma pauperis in this case. Nonetheless, the Court will grant Plaintiff's IFP Application for the sole purpose of initial review of his complaint under 28 U.S.C. § 1915(e), and recommends that should the District Court allow Plaintiff's action to proceed, he be required to submit a complete IFP Application for consideration by the Court in determining whether he may proceed in forma pauperis.
II. LEGAL STANDARD FOR INITIAL REVIEW OF COMPLAINT
Even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C. § 1915(e) directs that when a plaintiff proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . (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)(B)(i)-(iii).
In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). "An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Id. In determining whether a complaint states a claim upon which relief may be granted, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, 513 U.S. 836 (1994) (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
III. COMPLAINT
On May 1, 2016, Plaintiff Samuel Alexander retained Defendant attorney Thomas J. Murphy to represent him on criminal charges set forth in an April 27, 2016, criminal complaint charging Plaintiff with violating 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846, conspiracy to possess with the intent to distribute and to distribute 100 grams or more of heroin, a Schedule I controlled substance, and 500 grams or more of cocaine, a Schedule II controlled substance. (Dkt. No. 1-2 at 1); see also USA v. Samuel Alexander, Jr., No. 5:16-MJ-223 (ATB) (N.D.N.Y.), Dkt. Nos. 1 at 1; 4. Plaintiff was thereafter indicted on June 1, 2016, on charges of:
Plaintiff's May 1, 2016, retainer agreement with Murphy indicates that Murphy was with the Greene Hershdorfer Firm at the time he was retained by Plaintiff. (Dkt. No. 1-2 at 1.) Page 1 of the criminal docket for No. 5:16-cr-00179-GTS shows that Murphy became associated with the Pappas Cox Firm at some point during his representation of Plaintiff.
"[C]ourts routinely take judicial notice of documents filed in other courts . . . to establish the fact of such litigation and related filings." Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991).
Conspiracy to Possess with Intent to Distribute and to Distribute Heroin, 21 U.S.C. §§ 841(a)(1) and 846, USA v. Samuel Alexander, Jr., No. 5:16-cr-00179-GTS (N.D.N.Y.), Dkt. No. 1 at 1-2; and
Conspiracy to Possess with Intent to Distribute and to Distribute Cocaine and Cocaine Base, 21 U.S.C. §§ 841(a)(1) and 846, USA v. Samuel Alexander, Jr., No. 5:16-cr-00180-
GTS (N.D.N.Y.), Dkt. No. 10.
Plaintiff entered a guilty plea on August 31, 2016, to violation of 21 U.S.C. § 846 with regard to both the heroin and cocaine charges and was sentenced to a term of imprisonment of 63 months in both No. 5:16-cr-00179-GTS and No. 5:16-cr-00180-GTS, to run concurrently, a term of supervised release of 3 years in No. 5:16-cr-00179-GTS and 5 years in No. 5:16-cr-00180-GTS, to run concurrently with standard and special conditions. See No. 5:16-cr-00179-GTS, Dkt. No. 42. Judgment was imposed on November 17, 2017. Id. at 133.
Plaintiff alleges in his Northern District complaint that during the course of his representation in the criminal matter, Murphy conspired with Greene, Hershdorfer & Sharpe to "deprive Plaintiff's life, liberty, and due process of law by sharing confidential emails with a known informant Daniel Redeno." (Dkt. No. 1 at 4.) Plaintiff contends that the action was undertaken intentionally and caused Plaintiff "great harm, lots of stress, mental anguish, and inflicted physical and psychological injuries in of the Legal Malpractice that forced Plaintiff into signing a plea agreement after the Honorable 'Glenn T. Suddaby' stated in open Court and on the record that Thomas Murphy (Defendant) was going to be reprimand for his wrongdoings No actions has been taking." Id. (unaltered text).
In his Western District complaint, Plaintiff alleges that Murphy and both Defendant law firms violated his United States and New York Constitutional and civil rights by sharing confidential information and emails pertaining to his criminal case with another inmate. (Dkt. No. 1-1 at 6.) Plaintiff claims that there have been substantive errors, administrative errors, client relation errors, intentional malicious prosecution errors, violations of professional conduct, standards, and ethics, and violations of his First, Sixth, Eighth, and Fourteenth Amendments. Id.
In a November 13, 2017, grievance filed against Murphy by Plaintiff on a New York Commission of Correction Form, submitted as an exhibit with his complaint, Plaintiff accuses Murphy of violating Plaintiff's Fourteenth Amendment right to due process in violation of 42 U.S.C. § 1983, legal malpractice, violation of Plaintiff's right to privacy, negligent infliction of emotional distress, and mental anguish. (Dkt. 1-2 at 2-3.) In an undated letter to Murphy and the two law firms, Plaintiff claimed Defendants were guilty of legal malpractice by breaching the duty of undivided loyalty and confidentiality in connection with the alleged sharing of emails with another inmate. Id. at 5.
Plaintiff has also submitted as an exhibit to his complaint a November 13, 2017, letter to the Hon. Glenn T. Suddaby, Chief U.S. District Judge, requesting a copy of the Court's reprimand of Murphy for violating the rules of professional conduct and Plaintiff's right to privacy, and claiming that the violations of his Constitutional rights and federal and state laws tainted the entire federal court process with regard to his criminal prosecution. Id. at 6-8.
IV. FEDERAL COURT SUBJECT MATTER JURISDICTION
Federal courts are courts of limited jurisdiction and federal subject matter jurisdiction is available only when a "federal question" is presented (28 U.S.C. § 1331), or when the plaintiff and defendants are of diverse citizenship and the amount in controversy exceeds $75,000 (28 U.S.C. §1332). See Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 136 (2d Cir. 2002). When a court lacks subject matter jurisdiction, dismissal is mandatory. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). Federal courts "have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party." Id.
A plaintiff's claims must arise "under the Constitution, laws, or treaties of the United States" in order to invoke federal question jurisdiction. 28 U.S.C. § 1331. "Federal question jurisdiction exists where a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Greenberg, Bear, Sterns & Co., 220 F.3d 22, 25 (2d Cir. 2000) (internal quotation marks omitted), overruled on other grounds by Doscher v. Sea Prot Grp. Securities, LLP, 832 F.3d 372 (2d Cir. 2016); see also Arbaugh, 546 U.S. at 513 n.10 ("A claim invoking federal-question jurisdiction . . . may be dismissed for want of subject-matter jurisdiction if it is not colorable, i.e., if it is immaterial and made solely for the purpose of obtaining jurisdiction or is wholly insubstantial and frivolous.")
V. ANALYSIS
Section 1983 provides in relevant part:
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . .42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff must allege that the challenged conduct (1) was "committed by a person acting under color of state law," and (2) "deprived [the plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of the United States." Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)). "The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161 (1992).
It is well settled that "the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and internal quotation marks omitted). A plaintiff must therefore allege facts showing that a defendant was either a state actor or a private party acting under color of state law. Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002); see also United States v. Int'l Broth. of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 941 F.2d 1292, 1295-96 (2d Cir. 1991) ("Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes 'state action.'"). Private actors have been found to engage in "state action" when they are "willful participant[s] in joint activity with the State or its agents." Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970) (citing United States v. Price, 383 U.S. 787, 794 (1966)).
A plaintiff is required to allege state action on the part of the defendants in his complaint; and where he fails to do so, a court may dismiss an action under § 1915(e). See O'Neil v. Bebee, No. 5:09-CV-1133 (GTS/DEP), 2010 WL 502948, at *5 (N.D.N.Y. Feb. 10, 2010).
The Supreme Court has identified other instances where a private party's actions may be fairly attributed to state action, including: (1) where the challenged action results from the State's exercise of coercive power; (2) when the State provides significant encouragement, either overt or covert; (3) when a nominally private entity is controlled by an agency of the State; (4) when a private entity has been delegated a public function by the State; and (5) when the private entity is entwined with governmental policies, or the government is entwined in its management or control. See Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288, 295 (2001). The allegations in Plaintiff's complaint do not fall within any of these other instances.
B. Subject Matter Jurisdiction as to Plaintiff's § 1983 Claim Against Defendants
Plaintiff has brought this civil rights action under 42 U.S.C. § 1983 and claims that Defendants violated his rights under the First, Sixth, Eighth, and Fourteenth Amendments, along with his right to privacy, by sharing his emails with a known informant. (Dkt. Nos. 1 at 4; 1-1 at 6; 1-2 at 2-3, 6-8.) Defendant Murphy, a private attorney, was retained to represent Plaintiff in connection with the criminal charges against him. (Dkt. No. 1-2 at 1.) During the period of time he represented Plaintiff, Murphy was associated with the two law firms which have been named as Defendants solely by virtue of Murphy's association with the firms.
See https://www.martindale.com/organization/greene-hershdorfer-sharpe-47184/ and https://www.martindale.com/organization/pappas-cox-kimpel-dodd-levine-157694409 (last visited on July 2, 2018).
1. Federal Question Jurisdiction
Private attorneys and law firms, absent joint activity with the State or its agents, are not state actors. See Fine v. City of New York, 529 F.2d 70, 74 (2d Cir. 1975); Polk County v. Dodson, 454 U.S. 312, 318 (1981) ("[A] lawyer representing a client is not, by virtue of being an officer of the court, a state actor 'under color of state law' within the meaning of § 1983"); Pierre v. Ingber Law Firm, PLLC, No. 16-CV-5974 (MKB), 2017 WL 384322, at *2 (E.D.N.Y. Jan. 25, 2017) ("It is well-settled that private attorneys and law firms . . . do not act under color of state law and are not state actors for purposes of Section 1983 simply by virtue of their state-issued licenses to practice law.") (quoting Manko v. Steinhardt, No. 11-CV-5430 (KAM) (LB), 2012 WL 213715, st *4 (E.D.N.Y. Jan. 24, 2012)); Rouse v. DeLorenzo, No. 1:11-CV-1466 TJM/DRH, 2011 WL 9535875, at *2 (N.D.N.Y. Dec. 20, 2011) (private attorneys "do not act under color of state law and are not state actors simply by virtue of their state-issued licenses to practice law"); Agron v. Douglas W. Dunham, Esq. & Assocs., No. 02 Civ. 10071(LAP), 2004 WL 691682, at *3 (S.D.N.Y. Mar. 31, 2004) ("It is well established that as a matter of law a private attorney is not a state actor.").
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Plaintiff's complaint and exhibits, along with filings from the record in the criminal proceeding in which he was represented by Murphy, all discussed above, establish that Murphy was a private attorney representing Plaintiff in a criminal matter and associated with the two Defendant law firms during the period of representation. Moreover, Plaintiff has failed to allege facts suggesting that Murphy or the other Defendants conspired with any state actor to violate Plaintiff's constitutional rights. The Court therefore finds that Plaintiff has failed to allege a cause of action against Defendants under § 1983 that provides the Court with subject matter jurisdiction under 28 U.S.C. § 1331.
2. Diversity Jurisdiction
"For a case to be diverse, there must be complete diversity of parties; [d]iversity is not complete if any plaintiff is a citizen of the same state as any defendant." St. Paul Fire & Marine Ins. Co. v. Universal Builders Supply, 409 F.3d 73, 80 (2d Cir. 2005). The Plea Agreement executed by Plaintiff in No. 5:16-cr-00179, Dkt. No. 42 at 4, states that Plaintiff's home is in Brewerton, New York. A prisoner is presumed to be domiciled in his state of origin, not his state of incarceration. See Scott v. Sonnet, Sale & Kuehne, P.A., 989 F.Supp. 542, 543 n.1 (S.D.N.Y. 1998) ("[p]risoners are presumed to retain the domicile they had at the time of incarceration for diversity purposes, although they can attempt to show that they have established domicile in the state of incarceration"). A party alleging a change of domicile for diversity jurisdiction purposes has the burden of proving the "require[d] . . . intent to give up the old and take up the new [domicile], coupled with actual acquisition of a residence in the new locality, and must prove those facts by clear and convincing evidence." Palazzo ex. rel Delmage v. Corio, 232 F.3d 38, 42 (2d Cir 2000) (citation and internal quotation marks omitted). Plaintiff has included no allegations in his complaint suggesting that New Jersey, where he is presently incarcerated, has become his domicile.
Plaintiff has given Syracuse, New York addresses for all three Defendants in his complaint and included no allegations suggesting that any one of the Defendants is a citizen of any state other than New York. Public records provide Syracuse addresses for both Murphy and Pappas, Cox, Kimpel, Dodd & Levine, P.C. (See Dkt. Nos. 1 and 1-1.) Furthermore, Martindale-Hubbell identifies Greene, Hershdorfer & Sharpe as having been a Syracuse, New York law firm (See https://www. martindale.com/organization/greene-hershdorfer-sharpe-47184/ (last visited on July 2, 2018)).
Defendant Murphy's attorney registration information with the New York State Unified Court System includes a Syracuse, New York address. See iapps.courts.state.ny.us/attorney/ (last visited on July 2, 2018). The New York Department of State Division of Corporations Entity Information gives a Syracuse, New York address for Pappas, Cox, Kimpel, Dodd & Levine, P.C. See https://appext20.dos.ny.gov/corp_public/CORPORATE.SEARCHENTITY (last visited June 28, 2018).
In light of the allegations in Plaintiff's complaint, criminal court filings, and information on official New York State and Martindale-Hubbell web sites identified above, the Court concludes that Plaintiff has failed to establish a basis for diversity jurisdiction under 28 U.S.C. § 1332.
3. Opportunity to Amend
While mindful that pro se plaintiffs should generally be given an opportunity to amend their complaints, Gomez, 171 F.3d at 795, the Court finds that a "better pleading will not cure" the lack of subject matter jurisdiction over Plaintiff's § 1983 claims against Defendants and recommends dismissal of those claims without leave to amend. Cuoco, 222 F.3d at 112.
C. Plaintiff's State Law Claims
Plaintiff has also attempted to allege state law claims for legal malpractice, ethical violations breaching a fiduciary duty, negligent infliction of emotional distress, malicious prosecution, and violation of the New York State Constitution against Defendants. (Dkt. Nos. 1 at 4; 1-1 at 6; 1-2 at 2-3, 6-8.) Inasmuch as the Court is recommending that Plaintiff's federal claims against Defendants be dismissed for lack of subject matter jurisdiction, it further recommends that the District Court decline to exercise supplemental jurisdiction over Plaintiff's state law claims under 28 U.S.C. § 1367, without prejudice and subject to refiling in state court and to reconsideration in the event the District Court does not accept this Court's recommendation for dismissal of Plaintiff's § 1983 claim on subject matter grounds. See Kolari v. New York Presbyterian Hosp., 445 F.3d 118, 120 (2d Cir. 2006).
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. Nos. 2, 4, 6) is GRANTED solely for the purpose of this initial review; and it is further
RECOMMENDED that Plaintiff's complaint (Dkt. Nos. 1 and 1-1) be DISMISSED IN ITS ENTIRETY on initial review pursuant to 28 U.S.C. § 1915(3)(2)(B) as follows:
(1) DISMISSAL of Plaintiff's § 1983 claims against Defendants for lack of subject matter jurisdiction be WITHOUT LEAVE TO AMEND; and
(2) the District Court decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367 over Plaintiff's state law claims, without prejudice and subject to refiling of those claims in state court; and it is hereby
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam) on Plaintiff.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report-recommendation. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a). Dated: July 2, 2018
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge