Opinion
5:22-cv-582 (GTS/TWD)
06-29-2022
SAYVION D. BLOUNT, Plaintiff, v. WILLIAMS, et al., Defendants.
SAYVION D. BLOUNT PLAINTIFF, PRO SE
SAYVION D. BLOUNT
PLAINTIFF, PRO SE
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
Sayvion D. Blount (“Plaintiff”) initiated this action pro se on or about May 25, 2022, asserting claims under 42 U.S.C. § 1983 against various individuals employed by Onondaga County Sheriff's Office. (Dkt. No. 1.) On June 6, 2022, Chief Judge Glen T. Suddaby denied Plaintiff's in forma pauperis (“IFP”) application as incomplete, ordered the administrative closure of the matter, and permitted Plaintiff to reopen the matter by timely filing a complete inmate authorization form. (Dkt. No. 3.) Plaintiff subsequently filed a complete inmate authorization form, and the case was reopened. (Dkt. Nos. 4-5.) The Clerk sent Plaintiff's IFP application and Complaint to the undersigned for initial review. Plaintiff's IFP application is hereby GRANTED. (Dkt. No. 2.) The undersigned now considers the sufficiency of the allegations set forth in the Complaint under 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A.
The following recitation of facts is drawn from the Complaint, which the Court accepts as true for purposes of initial review. See, e.g., LaTouche v. Rockland County, No. 22-CV-1437 (LTS), 2022 WL 953111, at *1 (S.D.N.Y. Mar. 29, 2022); Walker v. City of New York, No. 20-CV-5240 (PKC) (LB), 2021 WL 1838277, at *1 n.1 (E.D.N.Y. May 7, 2021).
Plaintiff names the following individuals as defendants: Sergeant K. Williams, Deputy Campaneo, Deputy Sullivan, Deputy Daughton, Deputy Apples, Deputy Passino, Deputy McDonald, Deputy Arsenault, Deputy Dober, and Sergeant Peterson (collectively “Defendants”). (Dkt. No. 1 at 1-3.) This is Plaintiff's second suit against many of the same individuals. (See Case No. 5:22-cv-216, Dkt. No. 1 (hereinafter, “Blount I”); see generally Blount v. Apples, No. 5:22-CV-216 (GTS) (TWD), 2022 WL 1101547, at *1 (N.D.N.Y. Apr. 13, 2022), report and recommendation adopted, 2022 WL 2164771 (N.D.N.Y. June 13, 2022).) Because Plaintiff complains of much of the same conduct addressed in Blount I, the undersigned will focus on the claims not raised in Blount I-a grievance process claim and three retaliation claims. See generally Blount I, 2022 WL 1101547, at *1-4.
The undersigned does not address the following allegations, which Plaintiff asserted-and the undersigned addressed-in Blount I: (1) Plaintiff's grievance process claim against Deputies Campaneo and Sullivan stemming from a grievance that Plaintiff submitted on January 7, 2022; (2) Plaintiff's retaliation claim against Deputy Daughton as well as his grievance process claims against Deputies Apples and Daughton stemming from a grievance that Plaintiff submitted on January 17, 2022, and a conversation about that grievance on January 20, 2022; and (3) Plaintiff's grievance process claim against Deputy McDonald and Sergeant Peterson stemming from a grievance Plaintiff submitted on February 21, 2022. (See Dkt. No. 1 at 4-10; see also Blount I, 2022 WL 1101547, at *1-4.) On initial review in Blount I, the Court concluded Plaintiff's retaliation claim against Deputy Daughton survived initial review, but dismissed Plaintiff's grievance process claims against Deputy Campaneo, Deputy Sullivan, Deputy Apples, Deputy Daughton, Deputy McDonald and Sergeant Peterson. See Blount I, 2022 WL 1101547, at *7-10.
Through his first cause of action, Plaintiff claims Deputy Daughton violated his First Amendment right by retaliating against him for submitting grievances. (Dkt. No. 1 at 5.) On January 11, 2022, Deputy Daughton cancelled Plaintiff's recreation time following a verbal dispute between Plaintiff and another inmate. Id. Plaintiff claims Deputy Daughton allowed the other inmate to continue his scheduled recreation time “less than five minutes later” but kept Plaintiff locked in his cell. Id. When Plaintiff asked Deputy Daughton why he was not allowed to continue with his recreation time, Deputy Daughton answered, “why do you keep filing complaints against me . . . stop lying in your complaints.” Id. Plaintiff also claims Deputy Daughton filed a “false and fabricated report to justify his retaliation” which falsely stated Plaintiff was the initial aggressor of the verbal dispute. Id. at 6. Plaintiff claims this caused severe emotional distress and mental anguish. Id.
Through his second cause of action, Plaintiff claims Deputy Dober violated his First Amendment rights by failing to properly address Plaintiff's referral forms after he presented “evidence of misconduct with [his] grievances” both in person and via grievance. Id. at 12. On April 28, 2022, Deputy Dober met with Plaintiff and told him she had already addressed his previous grievances. (Dkt. No 1 at 11; see also Blount I, 2022 WL 1101547, at *3.) Deputy Dober told Plaintiff to submit further grievances to her directly but “not to tell anyone that [he] had a direct line to her.” (Dkt. No. 1 at 12.) When Plaintiff continued to submit grievance forms directly to Deputy Dober, she denied them, “falsely stating that these issues were addressed.” Id. Plaintiff claims this caused severe emotional distress and mental anguish. Id. at 15.
Through his third cause of action, Plaintiff claims Sergeant Williams violated his First Amendment rights by retaliating against him for submitting grievances. Id. at 12-13. On May 18, 2022, Plaintiff asked Sergeant Williams to again review the issues with previous grievances and Sergeant Williams replied, “if you want a grievance, I'm locking you in.” Id. Sergeant Williams returned later in the day to ask if Plaintiff still wanted a grievance. Id. When Plaintiff replied that he did, Sergeant Williams said, “well, now you're locked in.” Id. at 13. Sergeant Williams also asked Plaintiff if he wanted to proceed with an informal complaint, and indicated that if he did, Sergeant Williams would “send [him] to the Box (Special Housing Unit).” Id. at 13-14. Plaintiff claims this caused severe mental anguish and emotional distress. Id. at 14.
Through his fourth cause of action, Plaintiff claims Deputy Arsenault violated his First Amendment rights by retaliating against him for submitting a formal complaint. Id. at 14. On May 18, 2022, following Plaintiff's conversation with Sergeant Williams (discussed above), Plaintiff asked Deputy Arsenault if he would “go to the Box” for submitting a grievance and she said “no [he] would not.” Id. at 14. Plaintiff submitted a formal inmate grievance to Deputy Arsenault which she then discarded. Id. Plaintiff claims this caused severe mental anguish and emotional distress. Id.
II. STANDARD OF REVIEW
This Court must conduct an initial review of complaints filed in forma pauperis, and “complaints in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915(e)(2)(B) (governing complaints filed in forma pauperis); 28 U.S.C. § 1915A (governing complaints filed by prisoners against the government). When reviewing these types of complaints, this Court must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2)(B); see also Allen v. Stringer, No. 20-3953, 2021 WL 4472667, at *1 (2d Cir. Sept. 30, 2021) (applying Section 1915(e)(2)(B)); Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (applying Section 1915A).
Plaintiff is a “prisoner” as that term is used in 28 U.S.C. § 1915A(a). (See Dkt. No. 2 at 1; see also 28 U.S.C. § 1915A(c) (defining “prisoner” as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.”).)
Unless otherwise indicated, in quoting cases, all alterations, internal quotation marks, emphases, footnotes, and citations are omitted. See, e.g., Sczepanski v. Saul, 946 F.3d 152, 157 n.4 (2d Cir. 2020).
This Court must exercise caution when determining whether to sua sponte dismiss a pro se complaint on the grounds that it is frivolous. See Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991); Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). “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). “A claim is based on an indisputably meritless legal theory when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Id.
When undertaking this initial review, the Court must construe pro se pleadings with the utmost leniency. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding that a pro se litigant's complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers”); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “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). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Iqbal, 556 U.S. at 678. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. 544, 555; see also Fed.R.Civ.P. 8(a)(2).
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. 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.
III. DISCUSSION
A. Grievance Procedure Claim
Through his second cause of action, Plaintiff claims Deputy Dober violated his First Amendment rights by failing to properly address his grievances. (See Dkt. No. 1 at 12.) This alleged grievance procedure violation does not give rise to an actionable claim under 42 U.S.C. § 1983. Blount I, 2022 WL 1101547, at *7 (collecting cases); see also Shell v. Brzezniak, 365 F.Supp.2d 362, 369-70 (W.D.N.Y. Apr. 21, 2005). “[I]nmate grievance programs created by state law are not required by the Constitution and consequently allegations that prison officials violated those procedures does not give rise to a cognizable § 1983 claim.” Shell, 365 F.Supp.2d at 370. “In the event that prison officials ignore a grievance that raises constitutional claims, the proper avenue to seek relief is . . . directly petitioning the government for redress of his claims.” Williams v. City of New York, No. 19-CV-3347 (LJL) (JLC), 2022 WL 130409, at *21 (S.D.N.Y. Jan. 14, 2022), report and recommendation adopted, 2022 WL 446041 (S.D.N.Y. Feb. 14, 2022). Plaintiff has petitioned the government for redress of his claims in the Court by filing a Complaint. (See generally Dkt. No. 1.) The assertion that Plaintiff was denied his First Amendment right to petition the government for redress is accordingly “belied by the fact of his bringing this lawsuit.” Williams, 2022 WL 130409, at *21. The undersigned therefore recommends dismissing Plaintiff's grievance procedure claim against Deputy Dober. See Blount I, 2022 WL 1101547, at *7-8.
B. Retaliation Claims
Plaintiff claims Deputy Daughton, Sergeant Williams, and Deputy Arsenault retaliated against him in violation of his First Amendment rights. (See Dkt. No. 1.) Through his first cause of action, Plaintiff claims Deputy Daughton retaliated against him by keeping him locked in his cell after Plaintiff filed grievances about Deputy Daughton. Id. at 5-6. Through his third cause of action, Plaintiff claims Sergeant Williams retaliated against him for submitting grievances by keeping him locked in his cell and threatening to send him to the Special Housing Unit (“SHU”) if he moved forward with an informal complaint. Id. at 13-14. Through his fourth cause of action, Plaintiff claims Deputy Arsenault retaliated against him for submitting a formal grievance by discarding the grievance. Id. at 14.
To prevail on a First Amendment claim for retaliatory conduct under 42 U.S.C. § 1983, a plaintiff must advance non-conclusory allegations demonstrating: “(1) the conduct at issue was protected, (2) the defendants took adverse action against the plaintiff, and (3) there was a causal connection between the protected activity and the adverse action.” See Hendricks v. Mallozzi, No. 9:20-CV-1035 (MAD) (ML), 2022 WL 1129887, at *4 (N.D.N.Y. Jan. 14, 2022), report and recommendation adopted, 2022 WL 856885 (N.D.N.Y. Mar. 23, 2022); see also Lewis v. Hanson, No. 9:18-CV-0012 (LEK) (DJS), 2022 WL 991729, at *11 (N.D.N.Y. Mar. 31, 2022); Vidal v. Valentin, No. 16-CV-5745 (CS), 2019 WL 3219442, at *6 (S.D.N.Y. Jul. 17, 2019). A plaintiff meets the first element by demonstrating that he filed a grievance which is a form of constitutionally protected speech. Vidal, 2019 WL 3219442, at *7 (explaining it is “well supported by case law” that submitting a grievance is a “constitutionally protected activity”). An action is considered adverse if it “would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights.” Chavis v. Struebel, 317 F.Supp.2d 232, 238 (W.D.N.Y Mar. 29, 2004); see also Lewis, 2022 WL 991729, at *11. This objective test applies “even where a particular plaintiff was not himself subjectively deterred; that is, where he continued to file grievances and lawsuits.” Keyes v. Venettozzi, No. 9:18-CV-0372 (GTS) (DJS), 2022 WL 991402, at *5 (N.D.N.Y. Mar. 31, 2022). “[I]n considering whether there is a causal connection between the protected speech and the adverse action, a court may consider a number of factors, including any statements made by the defendant concerning his motivation and the temporal proximity between the protected activity and the defendant's adverse action.” Hendricks, 2022 WL 1129887, at *5; Lewis, 2022 WL 991729, at *11; see also Williams, 2022 WL 130409, at *24 (“In considering whether a causal connection exists, a court may infer an improper or retaliatory motive in the adverse action from: (1) the temporal proximity of the filing to the grievance and the disciplinary action; (2) the inmate's prior good disciplinary record; (3) vindication at a hearing on the matter; and (4) statements by the defendant regarding his motive for disciplining the plaintiff.”).
Reading Plaintiff's pro se complaint liberally, Sealed Plaintiff, 537 F.3d at 191, the undersigned concludes Plaintiff alleged sufficient facts in support of his first, third, and fourth claims of retaliation. (See Dkt. No. 1 at 5-6, 13-14.) The first element of each retaliation claim is satisfied because Plaintiff engaged in constitutionally protected speech by filing grievances. See Davis v. Goord, 320 F.3d 346, 352-53 (2d Cir. 2003); Vidal, 2019 WL 3219442, at *7 (collecting cases). After Plaintiff filed grievances about Deputy Daughton, Deputy Daughton locked him in his cell, stating “why do you keep filing complaints against me . . . stop lying in your complaints.” Id. at 5. This allegation supports the inference of causation because Deputy Daughton specifically referenced Plaintiff's grievances about him when he locked Plaintiff in his cell during free time. Id. at 5-6.
Similarly, after Plaintiff submitted grievances about Sergeant Williams' alleged mishandling of prior grievances, Sergeant Williams kept Plaintiff locked in his cell and told Plaintiff he would “send him to the Box (Special Housing Unit)” if he moved forward with an informal complaint. Id. at 13-14. It is reasonable to conclude the threat of confinement in the SHU would “deter a similarly situated individual of ordinary firmness” from submitting additional grievances or complaints. See Blount I, 2022 WL 1101547, at *3; Chavis, 317 F.Supp.2d at 238. Additionally, Sergeant Williams locked Plaintiff in his cell and threatened to send him to the SHU immediately after he requested a grievance form. (Dkt. No. 1 at 13-14.) This sequence and timing of events gives rise to a reasonable inference of causation-namely, that Sergeant Williams acted with a retaliatory motivation. See Hendricks, 2022 WL 1129887, at *5 (“[T]he Second Circuit has made clear that “temporal proximity of an allegedly retaliatory action to a grievance may serve as circumstantial evidence of retaliation.”) (collecting cases).
Additionally, the undersigned concludes Plaintiff's retaliation claim against Deputy Arsenault survives initial review and requires a response. (Dkt. No. 1 at 14.) Plaintiff claims Deputy Arsenault retaliated against him for submitting a formal grievance by discarding it. Id. “[T]he intentional destruction of grievances is sufficient to allege a claim of retaliation.” Hayes v. Dahkle, No. 9:16-CV-1368 (TJM) (CFH), 2017 WL 384066, at *8 (N.D.N.Y. Jan. 27, 2017) (quoting Brown v. Bascomb, No. 9:05-CV-1466 (NAM), 2008 WL 4283367, at *6 n.11 (N.D.N.Y. Sept. 16, 2008)). Plaintiff's allegation that Deputy Arsenault discarded his grievance demonstrates “temporal proximity between the protected activity and the defendant's adverse action,” allowing the Court to infer sufficient causation. See Hendricks, 2022 WL 1129887, at *5.
Based on the foregoing, the undersigned recommends the District Court conclude Plaintiff's retaliation claims against Deputy Daughton, Sergeant Williams, and Deputy Arsenault survive initial review and require a response under 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A(b)(1). In so recommending, the undersigned expresses no opinion regarding whether the claims could survive a properly filed motion to dismiss or motion for summary judgment.
C. The Remaining Defendants
Through his Complaint, Plaintiff advances claims against Deputy Daughton (the first cause of action), Deputy Dober (the second cause of action), Sergeant Williams (the third cause of action), and Deputy Arsenault (the fourth cause of action). (See Dkt. No. 1.) However, the allegations Plaintiff advances against several of the Defendants (i.e., Deputy Campaneo, Deputy Sullivan, Deputy Daughton, Deputy Apples, Deputy McDonald, and Sergeant Peterson) are duplicative of the allegations he advanced in Blount I. See Blount I, 2022 WL 1101547, at *1-4; see also infra, note 2. Stated differently, the claims Plaintiff asserted against Deputy Campaneo, Deputy Sullivan, Deputy Daughton, Deputy Apples, Deputy McDonald, and Sergeant Peterson in this case were also asserted against the same individuals in Blount I. Compare Blount I, 2022 WL 1101547, at *1-4, with Dkt. No. 1. The undersigned accordingly recommends dismissing those claims. See Kairam v. W. Side GI, LLC, No. 19 CIV. 953 (AT), 2020 WL 4194821, at *3 (S.D.N.Y. July 20, 2020) (“Courts in this circuit routinely dismiss cases that are duplicative of pending actions.”) (collecting cases); see generally Sacerdote v. Cammack Larhette Advisors, LLC, 939 F.3d 498, 504 (2d Cir. 2019) (“As part of its general power to administer its docket, a district court may stay or dismiss a suit that is duplicative of another federal court suit.”).
Moreover, Plaintiff failed to advance any allegations against Deputy Passino. (See Dkt. No. 1.) The undersigned accordingly recommends the Court dismiss Deputy Passino from this action. See Dove v. Fordham Univ., 56 F.Supp.2d 330, 335 (S.D.N.Y. 1999), aff'd, 210 F.3d 354 (2d Cir. 2000) (“It is well-settled that where the complaint names a defendant in the caption but contains no allegations indicating how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted.”); see, e.g., McKinney v. New York, No. 19-CV-3920 (NSR), 2022 WL 602970, at *3 (S.D.N.Y. Mar. 1, 2022); Johnson v. Gonzalez, No. 9:14-CV-0745 (LEK) (CFH), 2015 WL 1179384, at *6 (N.D.N.Y. Mar. 13, 2015).
IV. CONCLUSION
For the foregoing reasons, the undersigned recommends the Court conclude the following claims survive sue sponte review: (i) the first cause of action, asserting a First Amendment retaliation claim against Deputy Daughton; (ii) the third cause of action, asserting a First Amendment retaliation claim against Sergeant Williams; and (iii) the fourth cause of action, asserting a First Amendment retaliation claim against Deputy Arsenault. (See generally Dkt. No. 1.)
The undersigned further recommends the Court dismiss all remaining claims against all other Defendants. See generally 28 U.S.C. § 1915(e)(2)(b); 28 U.S.C. § 1915A(b) . This would result in the dismissal of Plaintiff's second cause of action, a grievance procedure claim against Deputy Dober, as well as the claims Plaintiff asserted in Blount I and re-asserted here. (See Dkt. No. 1 at 11-12; see also Blount I, 2022 WL 1101547, at *1-4; see generally supra, note 2.) The undersigned accordingly recommends dismissing the following individuals from this action: Deputy Dober, Deputy Campaneo, Deputy Sullivan, Deputy Apples, Deputy Passino, Deputy McDonald, and Sergeant Peterson.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 2) is GRANTED; and it is further
Plaintiff should note that although his IFP Application has been granted, he will still be required to pay fees that he may incur in this action, including copying and/or witness fees.
RECOMMENDED that Plaintiff's First Amendment retaliation claims against Deputy Daughton (the first cause of action), Sergeant Williams (the third cause of action), and Deputy Arsenault (the fourth cause of action) survive sua sponte review; and it is further
RECOMMENDED that pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), Plaintiff's grievance procedure claim against Deputy Dober (the second cause of action) be DISMISSED; and it is further
RECOMMENDED that pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), Deputy Campaneo, Deputy Sullivan, Deputy Apples, Deputy Passino, Deputy McDonald, and Sergeant Peterson be DISMISSED; and it is further
RECOMMENDED that if the District Court adopts this Report-Recommendation, the Clerk be directed to issue summonses and forward them, along with a copy of the Complaint (Dkt. No. 1), to the United States Marshal for service upon Deputy Daughton, Sergeant Williams, and Deputy Arsenault; and it is further
RECOMMENDED that Deputy Daughton, Sergeant Williams, and Deputy Arsenault be ORDERED to file a formal response to the remaining first, third, and fourth causes of action in Plaintiff's Complaint (Dkt. No. 1) as provided for in the Federal Rules of Civil Procedure subsequent to service of process; and it is further
ORDERED that all pleadings, motions, and other documents relating to this action must bear the case number assigned to this action and be filed with the Clerk of the United States District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St., Syracuse, New York 13261-7367. Any paper sent by a party to the Court or the Clerk must be accompanied by a certificate showing that a true and correct copy of same was served on all opposing parties or their counsel. Any document received by the Clerk or the Court which does not include a proper certificate of service will be stricken from the docket. Plaintiff must comply with all requests by the Clerk's Office for any documents that are necessary to maintain this action. All parties must comply with Local Rule 7.1 of the Northern District of New York in filing motions. Plaintiff is also required to promptly notify the Clerk's Office and all parties or their counsel, in writing, of any change in his address; his failure to do so will result in the dismissal of this action; and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, along with a copy of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. 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).
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.P. 6(a)(1)(C).