Opinion
5:23-cv-00460-DNH-TWD
07-12-2023
LEROY K. HOLLEY, Plaintiff, v. POLICE OFFICER KENNY NOONE, et al. Defendants.
Leroy K. Holley 19-B-0428 Five Points Correctional Facility Caller Box 119 Romulus, NY 14541 Plaintiff, Pro Se
Leroy K. Holley 19-B-0428 Five Points Correctional Facility Caller Box 119 Romulus, NY 14541 Plaintiff, Pro Se
REPORT-RECOMMENDATION AND ORDER
Therese Wiley Dancks United States Magistrate Judge
The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff Leroy K. Holley (“Plaintiff”) alleging defendants Police Officer Kenny Noone; Scott J. Freeman; The People of the State of New York, Jefferson County District Attorney; and Kim Martusewicz, (together “Defendants”) violated his civil rights. (Dkt. No. 1.) Plaintiff, who is currently in the custody of New York State Department of Corrections and Community Supervision (“DOCCS”) at the Five Points Correctional Facility in Romulus, New York, has not paid the filing fee for this action and seeks leave to proceed in forma pauperis (“IFP application”). (Dkt. No. 7.)
By Order entered April 17, 2023, this case was administratively closed with an opportunity to comply with the filing fee requirement. (Dkt. No. 4.) Thereafter, Plaintiff filed his IFP application and the inmate authorization form required in this District, and the Clerk reopened the matter and restored it to the Court's active docket. (Dkt. Nos. 7, 8, 9.) Plaintiff then rescinded the inmate authorization forms (Dkt. Nos. 10, 11) and the case was again administratively closed without prejudice to reopening upon compliance with the filing fee requirement or by submitting another inmate authorization form. (Dkt. No. 12.) Plaintiff has now filed another inmate authorization form (Dkt. No. 13) and the case has been reopened by the Clerk and restored to the Court's active docket again. (Dkt. No. 14.)
I. IFP APPLICATION
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010).[1] “Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Id. (citing 28 U.S.C. § 1915(b) and Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
Upon review, Plaintiff's IFP application demonstrates economic need. (Dkt. No. 7.) He also re-filed the inmate authorization form required in this District. (Dkt. No. 13.) Because Plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a), and has filed the inmate authorization form required in this District, he is granted permission to proceed IFP. (Dkt. Nos. 7, 13.) Having found Plaintiff meets the financial criteria for commencing this action IFP, and because he seeks relief from an officer or employee of a governmental entity, the Court must consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. §§ 1915(e) and 1915A.
II. STANDARD OF REVIEW
Sections 1915 and 1915A “provide an efficient means by which a court can screen for and dismiss legally insufficient claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citing Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). The Court shall dismiss a complaint in a civil action if the Court determines it is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); 28 U.S.C. § 1915A(b)(1)-(2).
To determine whether an action is frivolous, a 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). 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-unlawfully-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. 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.
A pro se litigant's pleadings are held to a less strict standard than attorney drafted pleadings. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (“Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties.”). Where a plaintiff is proceeding pro se, the court construes his pleadings “to raise the strongest arguments that they suggest.” See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (per curiam) (internal quotation marks omitted). However, this “does not exempt a [pro se litigant] from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).
Moreover, federal courts have an “independent obligation” to consider the presence or absence of subject matter jurisdiction sua sponte. Leopard Marine & Trading, Ltd. v. Easy Street, Ltd., 896 F.3d 174, 181 (2d Cir. 2018) (quoting In re Quigley Co., Inc., 676 F.3d 45, 50 (2d Cir. 2012)). “If subject matter jurisdiction is lacking, the action must be dismissed.” Id.; see also Fed.R.Civ.P. 12(h)(3).
Moreover, a court should not dismiss a pro se complaint “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). However, 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. ANALYSIS
A. Failure to Comply with Rules 8 and 10 of the Federal Rules of Civil Procedure
The Court recommends dismissal because Plaintiff's complaint fails to provide sufficient information for the Court to review or for Defendants to have notice of the claims against them. (See generally Dkt. No. 1.) In his complaint form, Plaintiff contends his Fourth, Fifth, and Fourteenth Amendment rights have been violated as well as his rights under “N.Y. CONST. AMENDS. Art. 1, 5, 6, 12, 13” and “N.Y.C.P.L. §§ 40.20 AND 200.70.” Id. at 3. Although Plaintiff lists four defendants in his complaint, he only addresses how Officer K. Noone and Scott J. Freeman acted under the color of state law as required under Section 1983. Id. at 4. The complaint form provides sections where a plaintiff can explain the facts underlying his claims and his injuries. Id. at 5. However, Plaintiff only remarks “See Attached” with page numbers in these sections. Id. Plaintiff then proceeds to write a paragraph of allegations in the relief section and ends with a request for $177,00,000 and “for such other and further relief as the Court and Justice Determine(s).” Id.
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. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
From what the Court can glean from Plaintiff's attachments, Plaintiff claims he was “unlawfully stopped” in Watertown, NY by the Metro Jefferson County Drug Task Force on November 10, 2017. (Dkt. No. 1 at 15.) Plaintiff claims Officer Noone and Officer Freeman “illegally searched and seized [Plaintiff's] New York State Identification Card.” Id. at 4, 15. He also alleges he was not given his Miranda warnings. Id. at 22. It is unclear to the Court whether Plaintiff was actually arrested on this date as he claims on July 6, 2018, “on unrelated matters” Plaintiff was “unlawfully seized . . . upon Fraudulent Misrepresented Warrant out of Oswego County Jail” and then “immediately Extradited . . . to Jefferson County Jail.” Id. at 13.
He goes on to claim Assistant District Attorney (“ADA”) Zakary I. Kloodruff submitted a superseded accusatory instrument on August 7, 2018, and on December 11, 2018, his counsel “waived” his right to be prosecuted “upon superseded Accusatory Instrument . . . Alleging Petitioner Aided and Abetted Co-defendant ‘Ace' in a controlled buy for sale of drug on november 1, 2017.” Id. at 16. There was then an evidentiary hearing, but it is unclear to the Court if this is the same evidentiary hearing Plaintiff later claims was “determined in [his] favor.” Id. 16, 17.
Plaintiff generally asserts the evidence used against him was “fruits of the poisonous tree” because he was unlawfully stopped on November 10, 2017. Id. at 17. Hon. Kim Martusewicz appears to have been the judge who presided over Plaintiff's proceedings and ultimately sentenced him. See generally id. at 13, 18. Plaintiff loosely implies Judge Martusewicz and ADA Kloodruff violated his Fifth Amendment due process rights. Id. at 16. Plaintiff claims he submitted a complaint to Acting Commissioner of DOCCS, Anthony Annuci, to which the Deputy Commissioner for Program Services, Jeff McKoy, responded to with “misleading information” on March 7, 2023. Id. at 18. It is unclear whether the subject of the complaint was his apparently unanswered letter to the New York State Parole Board or something else. Id. He also seems to assert his Fifth Amendment “Protected Double Jeopardy Clause rights” were violated and, therefore, “No sentence was imposed Legaly Against” Plaintiff. Id.
He claims his “administrative detention” is a violation of the Thirteenth Amendment's right against involuntary servitude. Id. at 19, 20. Plaintiff also implies violations of his Eighth Amendment rights as he alleges he has been “assaulted by request of Jefferson County Admin. Staff”; has sustained physical and sexual abuse by incarcerated individuals and corrections officers; and has been denied medical and mental health treatment-but he does not provide any more facts related to those allegations. Id. at 5, 7, 23. Plaintiff states “These Continued Attempts to Convict Did in fact Prejudice [Plaintiff's] Protected Rights Enjoined by Law Pursuant to” the Fourth, Fifth, Thirteenth, and Fourteenth amendments and “Cruel and unusual punishment.” Id. at 19.
In short, the haphazard collection of allegations does not provide any clear indication of the causes of action Plaintiff intends to assert and against whom. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction . . .;
(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.Fed. R. Civ. P. 8(a). Rule 8's purpose “is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer [and] prepare an adequate defense.” Hudson v. Artuz, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995)). Moreover, Rule 10 of the Federal Rules of Civil Procedure provides, in part:
(b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances....Fed. R. Civ. P. 10(b). Rule 10's purpose is to “provide an easy mode of identification for referring to a particular paragraph in a prior pleading[.]” Sandler v. Capanna, 1992 WL 392597, at *3 (E.D. Pa. Dec. 17, 1992) (citation omitted).
A complaint that does not comply with these Rules “presents far too heavy a burden in terms of defendants' duty to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of [the plaintiff's] claims,” and may properly be dismissed by the court. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). “Dismissal, however, is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Artuz, 1998 WL 832708, at *2 (internal quotation marks omitted).
Here, the Court recommends the complaint be dismissed because it is not acceptable under Rules 8 and 10 of the Federal Rules of Civil Procedure and Plaintiff's claims are entirely unclear. However, considering his pro se status, the Court further recommends Plaintiff be given an opportunity to amend the complaint to comply with the basic pleading requirements set forth above including Rules 8 and 10 of the Federal Rules of Civil Procedure. See Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995).
Should Plaintiff be granted leave to amend, any amended complaint must contain a short and plain statement of the claim showing that Plaintiff is entitled to relief and must be set forth in numbered paragraphs. Plaintiff must also set forth the type of relief sought. Any amended complaint submitted by Plaintiff must set forth all of the claims he intends to assert against the defendants and must demonstrate that a case or controversy exists between the Plaintiff and the defendants which Plaintiff has a legal right to pursue and over which this Court has jurisdiction. “[C]omplaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.” Hunt v. Budd, 895 F.Supp. 35, 38 (N.D.N.Y. 1995). Any such amended complaint will replace the existing complaint and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.”).
B. Judicial Immunity
Moreover, to the extent Plaintiff seeks to sue Judge Martusewicz, judges are immune from suit for damages for any actions taken within the scope of their judicial responsibilities. Mireles v. Waco, 502 U.S. 9, 11 (1991). This is true however erroneous an act may have been, and however injurious its consequences were to the plaintiff. Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994); see also Stump v. Sparkman, 435 U.S. 349, 357 (1978) (“A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction.”). This immunity applies to state court judges who are sued in federal court pursuant to Section 1983. Pizzolato v. Baer, 551 F.Supp. 355, 356 (S.D.N.Y. 1982), aff'd sub nom. Pizzolato v. City of New York, 742 F.2d 1430 (2d Cir. 1983).
Generally, “acts arising out of, or related to, individual cases before the judge are considered judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). The only two circumstances in which judicial immunity does not apply is when he or she acts “outside” his or her judicial capacity and when the judge takes action that, although judicial in nature, is taken “in absence of jurisdiction.” Mireles, 502 U.S. at 11-12.
Again, while not entirely clear, to the extent Plaintiff complains of any wrongdoing related to a criminal proceeding in Jefferson County Court, Judge Martusewicz would be entitled to absolute judicial immunity.
C. Prosecutorial Immunity
Plaintiff lists “The People of the State of New York Jefferson County District Attorney Office” as a Defendant. (Dkt. No. 1 at 3.) To the extent that Plaintiff seeks money damages against the Jefferson County District Attorney's Office, those claims are barred by the Eleventh Amendment. See Best v. Brown, 19-CV-3724, 2019 WL 3067118, at *2 (E.D.N.Y. July 12, 2019) (dismissing the plaintiff's claim against the Office of the Queens County District Attorney as barred by the Eleventh Amendment); see also D'Alessandro v. City of New York, 713 Fed.Appx. 1, 8 (2d Cir. 2017) (“[I]f a district attorney or an assistant district attorney acts as a prosecutor, she is an agent of the state, and therefore immune from suit in her official capacity.”) (cleaned up); Rich v. New York, 21-CV-3835, 2022 WL 992885, at *5 n.4 (S.D.N.Y. Mar. 31, 2022) (“any claims Plaintiff may raise against the DA Defendants in their ‘official capacity' would be precluded by immunity under the Eleventh Amendment.”); Gentry v. New York, 21-CV-0319, 2021 WL 3037709, at *6 (N.D.N.Y. June 14, 2021) (recommending dismissal of the plaintiff's claims against the defendant assistant district attorneys in their official capacities- which were effectively claims against the State of New York-as barred by the Eleventh Amendment) (cleaned up).
Plaintiff later mentions ADA Kloodruff and refers to him as “The People” throughout his complaint. Id. at 16-23. However, a party not named in the caption of the complaint is not a party to the action. Abbas v. U.S., No. 10-CV-0141, 2014 WL 3858398, at *2 (W.D.N.Y. Aug. 1, 2014) (the failure to name a party in the caption makes it “infeasible for the Court to determine which of the individual officers mentioned in the body of the complaint should be deemed to be defendants to which claims”). “If people are not also named in the caption of the [ ] complaint, they will not be defendants in the case.” Whitley v. Krinser, No. 06- CV-0575, 2007 WL 2375814, at *1 (W.D.N.Y. Aug. 15, 2007). In this instance, while Plaintiff describes the actions of ADA Kloodruff, he is not identified in the caption of the complaint or the list of parties. Therefore, Court will not and cannot construe the complaint to include any claims or causes of action against this individual.
With that being said, to the extent Plaintiff seeks to sue any individual prosecutor, such as ADA Kloodruff, that individual would likely be protected by prosecutorial immunity. Prosecutors are immune from civil suit for damages in their individual capacities for acts committed within the scope of their official duties where the challenged activities are not investigative in nature but, rather, are “intimately associated with the judicial phase of the criminal process.” Simon v. City of New York, 727 F.3d 167, 171 (2d Cir. 2013) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)) (internal quotation marks omitted); see Imbler, 424 U.S. at 431 (“[I]n initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983.”). In addition, prosecutors are immune from suit for acts that may be administrative obligations but are “directly connected with the conduct of a trial.” Van de Kamp v. Goldstein, 555 U.S. 335, 344 (2009).
In short, absolute prosecutorial immunity covers “acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State.” Buckley, 509 U.S. at 273. This includes “the decision to bring charges against a defendant, presenting evidence to a grand jury, and the evaluation of evidence prior to trial.” Moye v. City of New York, No. 11 Civ. 316, 2012 WL 2569085, at *5 (S.D.N.Y. July 3, 2012) (cleaned up). Immunity even extends to “the falsification of evidence and the coercion of witnesses,” Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981) (citing Lee v. Willins, 617 F.2d 320, 321-22 (2d Cir. 1980)), “the knowing use of perjured testimony,” “the deliberate withholding of exculpatory information,” Imbler, 424 U.S. at 431 n.34, the “making [of] false or defamatory statements in judicial proceedings,” Burns v. Reed, 500 U.S. 478, 490 (1991), and “conspiring to present false evidence at a criminal trial,” Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994).
Moreover, “‘[w]hen prosecuting a criminal matter, a district attorney in New York State, acting in a quasi-judicial capacity, represents the State not the county.'” Ying Jing Gan v. City of New York, 996 F.2d 522, 536 (2d Cir. 1993) (quoting Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988), cert. denied, 488 U.S. 1014 (1989)); see also Rich v. New York, No. 21-CV-3835, 2022 WL 992885, at *5 n.4 (S.D.N.Y. Mar. 31, 20221) (“[A]ny claims Plaintiff may raise against the [District Attorney] Defendants in their ‘official capacity' would be precluded by immunity under the Eleventh Amendment.”); v Gentry v. New York, No. 21-CV-0319, 2021 WL 3037709 (GTS/ML), at *6 (N.D.N.Y. June 14, 2021) (recommending dismissal of the plaintiff's claims against the defendant assistant district attorneys in their official capacities-which were effectively claims against the State of New York-as barred by the Eleventh Amendment), adopted by, 2021 WL 3032691 (N.D.N.Y. July 19, 2021).
Again, while not entirely clear, to the extent Plaintiff complains of any wrongdoing related to his criminal proceeding in Jefferson County Court, ADA Kloodruff, or any other relevant ADA, would likely be entitled to prosecutorial immunity.
D. Statute of Limitations
The statute of limitations for claims brought pursuant to Section 1983 is three years; thus, any claims arising out of events that occurred in Jefferson County Court in 2017, 2018, or 2019, are likely time-barred. See Beliard v. Perry, No. 1:14-CV-00554 MAD, 2015 WL 1967535, at *4 (N.D.N.Y. May 1, 2015). Plaintiff seemingly makes an argument, nonsensical as it may be, that tolling laws apply here because (1) no record exists he was accorded due process rights to a Grand Jury indictment; (2) the Sixth Amendment right to a speedy trial; (3) there was fraudulent misrepresentation and misconduct at his pretrial hearing which “subjected [Plaintiff] upon enumerated Double Jeopardy violations upon information and belief precluded (The People) continued attempt to convict because the Court of Appeals dismissed the matter entirely.” (Dkt. No. 1 at 22.)
Although federal law determines when a Section 1983 claim accrues, state tolling rules determine whether the limitations period has been tolled, unless state tolling rules would “defeat the goals” of Section 1983. Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002). “Here, New York tolling rules apply.” Abbas, 480 F.3d at 641. Under New York law, the doctrines of equitable tolling or equitable estoppel “may be invoked to defeat a statute of limitations defense when the plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action.” Doe v. Holy See (State of Vatican City), 17 A.D.3d 793, 794 (N.Y.App.Div. 2005) (internal quotations omitted); Kotlyarsky v. New York Post, 195 Misc.2d 150, 757 N.Y.S.2d 703, 706 (N.Y. Sup. Ct. 2003). “Due diligence on the part of the plaintiff in bringing [an] action,” however, is an essential element of equitable relief. Holy See (State of Vatican City), 17 A.D.3d at 796. The plaintiff bears the burden of showing that the action was brought within a reasonable period of time after the facts giving rise to the equitable tolling or equitable estoppel claim “have ceased to be operational.” Id. If a plaintiff cannot “articulate[ ] any acts by defendants that prevented [him] from timely commencing suit” then he has “failed to meet [his] burden of showing that [he was] wrongfully induced by defendants not to commence suit.” Id. In its current form, Plaintiff has clearly failed to show that any of those circumstances prevented him from timely filing his complaint and any tolling arguments Plaintiff seemingly makes are without merit. Abbas, 480 F.3d at 642.
Considering the foregoing, the Court recommends dismissing the complaint pursuant to Section 1915(e) and Section 1915A. In this case, it is not clear whether better pleading would permit Plaintiff to cure the deficiencies identified above. Nevertheless, out of deference to Plaintiff's pro se status, the Court also recommends that Plaintiff be granted leave to file an amended complaint.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 7) is GRANTED; and it is further
Although his IFP Application has been granted, Plaintiff will still be required to pay fees that he may incur in this action, including copying and/or witness fees.
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED WITH LEAVE TO AMEND pursuant to 28 U.S.C. §§ 1915 and 1915A; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and ReportRecommendation, along with copies of the unpublished decisions cited herein in accordance with 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) (Supp. 2013); 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. 6(a)(1)(C).