Opinion
6:17-cv-0578 (GTS/TWD)
08-07-2017
MARK SYFERT, Plaintiff, v. CITY OF ROME, Defendant.
APPEARANCES: MARK SYFERT Plaintiff, pro se 422 W. Embargo St. #2 Rome, NY 13440
APPEARANCES: MARK SYFERT
Plaintiff, pro se
422 W. Embargo St. #2
Rome, NY 13440 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
The Clerk has sent to the Court for initial review the complaint in this 42 U.S.C. § 1983 civil rights action brought by pro se Plaintiff Mark Syfert against Defendant City of Rome (also the "City" or "Rome"). (Dkt. No. 1.) Also before the Court is Plaintiff's application for leave to proceed in forma paupers ("IFP Application"). (Dkt. No. 2.)
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). After reviewing Plaintiff's IFP Application, the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's IFP Application (Dkt. No. 2) is granted.
II. LEGAL STANDARDS FOR INITIAL REVIEW
Even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C. § 1915(e) directs that when a person 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. 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. PLAINTIFF'S COMPLAINT
Plaintiff brings this action against the City of Rome. (Dkt. No. 1.) Plaintiff alleges a history of retaliation, favoritism, and abuse of power by Rome employees, including Plumbing Inspector Mike Mondrick, Codes Officer Patrick Hethington, and Codes Director Mark Domenico. Id. at 2. Plaintiff alleges the City engaged in acts designed to impede fair competition and to undermine the success of his plumbing business, a direct competitor of Mr. Mondrick's plumbing business. Id. Rome's alleged retaliatory acts culminated in a "malicious prosecution" in October 2013, based on false charges that Plaintiff violated City building codes at his property located at 422 West Embargo Street, located in Rome, New York (the "property" or "422 West Embargo Street"). Id. at 2.
Inasmuch as Plaintiff has not sequentially numbered the paragraphs in his complaint, page references are to the page number assigned by the Court's CM/ECF electronic docketing system. The Court notes that Plaintiff's "Factual Background" section, consists of single paragraph spanning six typewritten pages. (See Dkt. No. 1 at 3-9.)
A. Background
Plaintiff alleges the City of Rome has been retaliating against him for decades. Id. at 3. In 1984, Plaintiff purchased the property at issue, a three story house with an in-law apartment on the third floor by outbidding Ronnie Cardillo, who at that time was the Codes Director. Id. In 1991, Plaintiff outbid Mr. Cardillo on another house at a City tax auction. In 1993, Plaintiff successfully grieved the City's tax assessment of that house, causing Mr. Cardillo to consider Plaintiff "an enemy forever [and] passing that resentment on to his successor [Mr.] Domenico." Id.
Actually, Plaintiff outbid Mr. Cardillo's father because the City's Corporation Counsel told Mr. Cardillo that he could not bid on that house. Id.
In 1994, Plaintiff was "winning bids for contracts with the City" to replace furnaces as part of Rome's neighborhood improvement program. Id. In 1995, Plaintiff became a licensed master plumber. Id. From 1994 until 2006, Plaintiff "won" most of the advertised plumbing and heating bids for contracts with Rome. Id. at 3-4.
B. Mistreatment by Rome Employees
In 2007, Mr. Mondrick was appointed City Plumbing Inspector. Id. at 4. At that time, Mr. Mondrick and other Rome city officials "changed the way plumbing contracts were bid [on] in Rome." Id. Specifically, instead of bidding on plumbing jobs directly, plumbers were forced to bid through a contractor. Id. This policy change had a "negative" impact on Plaintiff's business and "fostered favoritism." Id.
In 2008, Plaintiff went to "get a plumbing permit" and Mr. Mondrick "happened to be behind the counter." Id. Plaintiff immediately recognized Mr. Mondrick as one of the individuals that "stole" lumber from his 10 acre plot of wooded land in Lee Center in 2005. Id. Plaintiff became "very angry." Id. Plaintiff expressed his concerns to City officials, including the mayor, that Mr. Mondrick "would abuse his position with the [C]ity to interfere with [his] business." However, Plaintiff's concerns were not taken seriously and he was "brushed" off. Id.
By letter dated July 16, 2009, Mr. Domenico falsely accused Plaintiff of "having an illegal third floor apartment with separate utility meters that was a city codes violation." Id. Plaintiff informed Mr. Domenico that the third floor apartment existed in 1984 when he purchased the property. Id. Plaintiff asked Mr. Domenico to "look up the minutes" from zoning board meetings in March and April of 1984, which would "prove" Plaintiff was innocent of code violations. Id. Mr. Domenico "apparently did not do this; or he did and willfully and maliciously pursued a criminal complaint against [Plaintiff] for code violations." Id.
In August 2009, Plaintiff obtained a plumbing permit for construction of a new house in Rome. Id. Mr. Mondrick inspected and passed Plaintiff's "rough work." Id. Plaintiff was to perform the second phase of the plumbing job in the spring of 2010. Id. However, in September 2010, Plaintiff learned that the second phase of the plumbing contract was completed by someone else, which Mr. Mondrick inspected and passed. Id. at 5. Plaintiff was "shocked" because his name was on the permit and "by law" Mr. Mondrick could not inspect a job without the named permit holder present. Id. As a result, Mr. Domenico issued an "illegal" certificate of occupancy at this house, and Plaintiff was unable to collect his final payment for this contract. Id.
In October 2009, Mr. Mondrick "abused his authority and public trust" by discriminating against Plaintiff in requiring Plaintiff to perform a "water test" at a potential job, while not requiring another plumber, who happened to be Mr. Mondrick's friend, to perform the water test. Id.
On January 4, 2011, Plaintiff paid the fee for his Master Plumber's License. Id. at 6. However, on or before January 31, 2011, Plaintiff's name was removed "from the list prepared by the City of Rome," which includes all Rome Master Plumbers. Id. As a result, "[i]n the eyes of the public [Plaintiff] lost [his] Master Plumber's License." Id.
By letter dated March 1, 2011, Mr. Mondrick notified Plaintiff that he was revoking Plaintiff's Master Plumber's License and told Plaintiff that he would have to "re-test for the plumbing exam." Id. Plaintiff claims Mr. Mondrick had "no legal authority" to revoke his license because he had paid the fee. Id. By letter dated March 4, 2011, Plaintiff sent Mr. Mondrick a copy of his cancelled check proving that he had paid his Master Plumber fee. Id. By letter dated March 9, 2011, Mr. Domenico explained that Mr. Mondrick's March 1, 2011, letter merely informed Plaintiff that his insurance had expired. Id. However, according to Plaintiff, "[t]his is NOT what the letter stated." Id. (emphasis in original). From January 2011 to May 2014, Plaintiff's name was not included in Rome Master Plumber's list, thereby dramatically impacting his business and income. Id.
In 2012, Plaintiff learned that Mr. Mondrick passed final inspections for two plumbing contracts, even though Plaintiff was the plumber on each permit in violation of Rome Plumbing Code Article V, Sec. 14-310(e). According to Plaintiff, that section states: "Upon completion of the entire plumbing installation, the plumber shall apply for the final inspection." Id. at 7. Thus, Mr. Domenico must have issued an illegal certificate of occupancy.
In February 2012, Plaintiff went to Rome's "corporation counsel's office requesting clarification of the Rome Plumbing Code," and was told that Mr. Mondrick, as the Plumbing Inspector, "could interpret the plumbing codes as he sees fit; even if the interpretation does not match the black letter of the law as it is written." Id.
C. Building Code Violations and Criminal Charges at the Property
In March 2010, Plaintiff repaired the roof of 422 West Embargo Street. Id. at 6. Plaintiff did not obtain a permit because "you don't need a permit for repairs." Id. During this project the chimney collapsed and "left [a] huge hole." Id. Plaintiff "decided to the fill the area with a dorm window." Id. Plaintiff finished this project in September 2010. Id. Significantly, "[a]t no time did anyone from codes enforcement contact [Plaintiff] about the roof or the dorm window." Id.
In April 2012, Plaintiff began installing an air conditioning unit at 422 West Embargo Street. Id. at 7. In order to move the heavy unit up to the third floor, Plaintiff set up exterior scaffolding. Id.
On June 6, 2012, Plaintiff received a "stop work" order from Rome City Code Enforcement for "construction without a permit." Id. Plaintiff telephoned the number listed on the stop work order and spoke with the "code officer in charge of [his] neighborhood." Id. Plaintiff was informed that the scaffolding "was too high and needed to come down." Id. Plaintiff complied and took the scaffolding down "within a week without putting the AC unit on the roof." Id. Plaintiff "heard nothing more" from the City. Id.
Thereafter, on November 20, 2013, Plaintiff received Summons #13-232, from Defendant Rome, signed by Rome City Judge Daniel Wilson, Docket # 56462, which stated:
An accusatory instrument having been filed with the Court, charging you with the offense of: Sect. NYSPMC-107.1.4 UNLAWFUL STRUCTURE; and Sect. NYSPMC-304.2 EXTER SURFACE NOT MAINTAINED; you are directed to appear in the City Court of Rome . . . on 3 day of December, 2013 at 9:00 AM. Failure to will result in a warrant being issued for your arrest. Dated Nov. 20, 2013.Id. As instructed, Plaintiff appeared on December 3, 2013, in Rome City Court before Judge Wilson. Id. Because of Plaintiff's low income, his request for a court appointed attorney was granted. Id. Plaintiff's attorney said that she would "have the case dismissed and told [him] 'these guys down in codes have way too much time on their hands.'" Id. at 7-8. Plaintiff's attorney requested a trial. Id. at 8.
Over the course of the next several months, Plaintiff was in constant fear that he would "be unjustly thrown in jail by Rome." Id. Plaintiff appeared for court hearings in January and April 2014. Id. In June 2014, the prosecutor and Plaintiff's court appointed attorney said they were "ready for trial." Id. However, over a year went by and Plaintiff was not notified of his trial date. Id. His court appointed attorney would not return his telephone calls. Id. In August 2015, Plaintiff called the Rome City Court Clerk to request a new court appointed attorney. Id.
According to Plaintiff, after Judge Wilson's retirement on January 1, 2014, Judge Gannon presided over Plaintiff's criminal charges. (Dkt. No. 1 at 7.)
D. First Civil Action against City of Rome and "Dismissal" of Criminal Action
On September 24, 2015, Plaintiff commenced a pro se civil rights action in the Northern District of New York, No. 6:15-cv-01149 (LEK/ATB) ("Syfert I") against the City of Rome, alleging: (1) violations of his rights to conduct a legal business without fear of retaliation; (2) ongoing and never ending work related retaliation, revenge, harassment by Rome's Code Department and Mr. Mondrick; (3) failure to conduct a speedy and fair trial; and (4) destruction and tampering of evidence when Mr. Domenico erased city records "proving" Plaintiff's "total innocence" of the Class A Misdemeanor (false statements). Syfert I, Dkt. No.1 at 6.
On October 5, 2015, Magistrate Judge Andrew T. Baxter granted Plaintiff's IFP Application but recommended dismissal of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Id., Dkt. No. 4 at 20-21. As to the first and second causes of actions, Judge Baxter found that the following conduct, all of which occurred prior to September 24, 2012, was barred by the statute of limitations:
Plaintiff claims that Mr. Mondrick issued plaintiff an "expired" license in 2008; the notice from the Code Department about plaintiff's grass was also in 2008; the letter from Mark Domenico regarding plaintiff's "three family" residence was in July of 2009; the alleged "illegal" occupancy was issued by Mr. Mondrick and Mr. Hetherington in October of 2009; Mr. Mondrick ordering plaintiff to perform a "water test" when another plumber was not required to do so was in October of 2009; Mr. Mondrick allegedly attempting to "remove" plaintiff's license, and the City of Rome charging plaintiff for its renewal for failure to pay the fee occurred in March of 2011; the allegation that plaintiff's name was thrown in the trash occurred in March of 2011; and the "stop work" order for plaintiff's air conditioning installation occurred on June 6, 2012.Id. at 13. Judge Baxter found that Plaintiff's allegations did not amount to a continuing violation. Id. at 13-14. In addition, Judge Baxter noted that it "appears very unlikely that [Plaintiff] can state federal constitutional claims based upon the allegations that he has made in his complaint." Id. at 20. However, Judge Baxter recommended dismissal of Plaintiff's first and second causes of action without prejudice and with leave to file a proposed amended complaint that addressed the issue of why the statute of limitations should be equitably tolled. Id.
Plaintiff's third and fourth causes of action related to criminal charges. Syfert I, Dkt. No. 1 at 6. Specifically, Plaintiff alleged that he had been denied a speedy and fair trial, his right to be innocent until proven guilty had been violated, and Mr. Domenico erased a City record from 1984 that would prove Plaintiff's innocence of the charges. Id. Judge Baxter recommended dismissal as barred by Younger v. Harris, 401 U.S. 37, 43-54 (1971) and Heck v. Humphrey, 512 U.S. 477 (1944). Id. at 9-10. The court noted, however, that "[i]f Plaintiff obtains dismissal of the charges prior to trial and conviction, then he may bring an action raising any constitutional violations that may have preceded the charges." Id. at 11 n.11.
In this complaint in this action, Plaintiff claims that he brought a copy of Judge Baxter's October 5, 2015, Report and Recommendation to the November 2015, hearing before Judge Gannon, which, indicated that "the three year statute of limitations" had expired. (Dkt. No. 1 at 8.) Judge Gannon "agreed and decided to dismiss Rome's criminal complaint against [Plaintiff] because the third floor window dorm was in since before September 2010" and Rome filed the "code violation complaint in October 2013 AFTER the three year statute expired." Id. (unaltered text). However, when Plaintiff asked Judge Gannon for the dismissal in writing, he "got mad" at Plaintiff and told him not to return in front of him again. Id.
Thereafter, on November 5, 2015, the District Court approved and adopted Judge Baxter's October 5, 2015, Report-Recommendation in Syfert I, and ordered Plaintiff's complaint dismissed without prejudice and with leave to amend as to Plaintiff's first and second causes of action, but without leave to amend as to Plaintiff's third and fourth causes of action. Syfert I, Dkt. No. 5. Plaintiff was ordered to file an amended complaint within forty-five days if he wished to proceed with the action. Id.
However, because Rome "dropped" the criminal charges, Plaintiff did not see any reason to pursue Syfert I. (Dkt. No. 1 at 8.) On December 22, 2015, judgment in favor of the City of Rome was entered in Syfert I. Id.
E. "Revival" of the Criminal Action
In January 2016, Plaintiff's court appointed attorney telephoned Plaintiff to tell him that his criminal case was "not dismissed" because "[c]ode violations have NO statute of limitations." (Dkt. No. 1 at 8.) Plaintiff was advised to "plead guilty" or "go to jail and . . . be fined." Id. Plaintiff stated that he wanted to go to trial. Id.
The Rome City Court Clerk told Plaintiff a hearing was scheduled for the first week in February 2016, and also told Plaintiff "to be there or Judge Gannon would put out an arrest warrant for me." Id. During the February 2016, hearing, Judge Gannon told Plaintiff "to get a permit for the third floor dorm window only to satisfy the case against me." Id. at 8-9.
On February 17, 2016, Mr. Domenico denied Plaintiff's permit application. Id. at 9. Mr. Domenico told Plaintiff that they needed "to do a whole house inspection" from the basement to the third floor. Id. at 9. Plaintiff refused because "nothing legally warranted such an invasive inspection of [his] property and invasion of [his] privacy for a permit for a dorm window that had been installed in 2010." Id.
During the February 25, 2014, hearing, Plaintiff told Judge Gannon why Mr. Domenico would not issue the permit. Id. Thereafter, the prosecuting attorney called Mr. Domenico. Id. "When she came back the judge told me to resubmit the application." Id. Plaintiff resubmitted his application for the dorm window on February 29, 2016. Id.
On March 1, 2016, Mr. Domenico telephoned Plaintiff and told him about the City's "mistake made in 1989" that indicated Plaintiff's property was only two stories, instead of three stories. Id. Mr. Domenico advised Plaintiff that he "fixed the mistake so this would never happen again." Id.
However, Mr. Domenico did not fix this error. (Dkt. No. 1 at 9.) Eventually, on March 1, 2017, the city assessor "fixed the error that was introduced by Rome employees in the description of Plaintiff's house and property for the August 1989 update that excluded the whole third floor from Plaintiff's house." Id. Finally, on March 21, 2017, Plaintiff "received the full historical legal description of [his house] and property going back to 1957. The original legal description dated to 1957 clearly states that the third floor was 100% finished and existing before 1957." Id.
On March 4, 2016, Plaintiff was issued the permit, which indicated Plaintiff's property was "a 2.5 story house." Id. Later that day, Plaintiff brought a copy of the permit to his court hearing. Id. Plaintiff gave a copy of the permit to Judge Gannon. Id. Judge Gannon stated the case was "now satisfied" and told Plaintiff that if he "did not get into trouble for six months it was dismissed like it never happened." Id. Judge Gannon then "went on to compare [Plaintiff] to a wife beater. This was humiliating." Id.
Approximately one week later, a "codes officer came through and inspected only the third floor dorm window [and] it passed." Id.
Based on the above, Plaintiff claims that Rome "did nothing to correct or restrain its employees from . . . egregious acts of retaliation made with intent to harm" Plaintiff, by ruining his reputation and destroying his business. Id. at 2-3. Plaintiff has "lost [his] health as a result of Rome's malicious prosecution." Id. at 3. Plaintiff has also endured "horrible mental suffering caused by nearly three years of fear that [he] would be unjustly imprisoned over these false claims of criminal code violations." Id.
F. Causes of Action
Plaintiff has organized his complaint into six causes of action: (1) Discrimination and Interference with Civil Rights; (2) Civil Action for Deprivation of Rights; (3) Rome Code Enforcement Policies and Procedurals are Unconstitutional; (4) Rome Plumbing and Plumber Licensing Policies and Procedures are Unconstitutional; (5) Defendant Denied of a Speedy Trial; and (6) Malicious Prosecution. Id. at 9-12. Plaintiff seeks significant compensatory and punitive monetary damages. Id. at 13.
IV. DISCUSSION
Plaintiff brings this action against the City of Rome pursuant to 42 U.S.C. § 1983. "To state a valid claim under § 1983, the plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Whalen v. Cty. of Fulton, 126 F.3d 400, 405 (2d. Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). Thus, § 1983 does not create any independent substantive right, but rather "provides a civil claim for damages" to "redress . . . the deprivation of [federal] rights established elsewhere." Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999).
The statute of limitations for a § 1983 action accruing in New York is three years. See Shomo v. City of N. Y., 579 F.3d 176, 181 (2d Cir. 2009). The statute of limitations begins to run on the date that the plaintiff's claims accrues. Wallace v. Kato, 549 U.S. 384, 388 (2007). Federal law governs the accrual date. Morse v. Univ. of Vt., 973 F.2d 122, 125 (2d Cir. 1992). Generally, under federal law, a cause of action accrues when "the plaintiff knows or has reason to know the injury which is the basis of his action." Covington v. New York, 171 F.3d 117, 121 (2d Cir. 1999) (quoting Singleton v. City of N.Y., 632 F.2d 185, 191 (2d Cir. 1980)). That is so even if "the full extent of the injury is not then known or predictable." Fahs Const. Group, Inc. v. Gray, 725 F.3d 289, 292 (2d Cir. 2013) (per curiam). State law tolling rules determine whether the limitations period has been tolled. See Abbas v. Dixon, 480 F.3d 636, 641 (2d Cir. 1997).
A claim for malicious prosecution accrues when there is a "favorable termination of criminal proceedings" against the plaintiff. Norwood v. Salvatore, No. 3:12-CV-1025 (MAD/DEP), 2013 WL 1499599, at *15 (Apr. 10, 2013) (citations omitted). "Ordinarily, a claim for abuse of process accrues at such time as the criminal process is set in motion—typically at arrest—against the plaintiff." Tirse v. Gilbo, No. 6:15-CV-0987 (GTS/ATB), 2016 WL 4046780, at *16 (N.D.N.Y. July 27, 2016) (quoting Duamutef v. Morris, 956 F. Supp. 1112, 1118 (S.D.N.Y. 1997) (Sotomayor, J.)).
Copies of unpublished decisions will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Although the statute of limitations is an affirmative defense, where it is clear from the face of the complaint that a claim is barred by the applicable statute of limitations, the claim is subject to dismissal for failure to state a claim on 28 U.S.C. § 1915(e)(2)(B) review. See Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (holding that a complaint can be dismissed on initial review based on a defense that appears on the face of the complaint); Syfert I, Dkt. No. 5 (dismissing all claims barred by the statute of limitations on initial review pursuant to 28 U.S.C. § 1915(e)(2)(B)).
A. Time-Barred Claims
1. Mistreatment by Rome
Plaintiff commenced this action on May 24, 2017. (Dkt. No. 1.) Three years prior to the filing date is May 24, 2014. Any causes of action in Plaintiff's complaint that accrued prior to May 24, 2014, are likely barred by the statute of limitations. As was the case in Syfert I, the Court assumes that events from 1984 through 2006 are merely an explanation of how the alleged animosity between Plaintiff and Mr. Mondrick began.
However, most of the incidents listed on Plaintiff's complaint occurred prior to May 24, 2014. Specifically, Plaintiff claims that (1) Mr. Mondrick was appointed Plumbing Inspector and changed the way contracts were bid on in Rome in 2007; (2) Mr. Domenico accused Plaintiff of having an "illegal" third floor apartment in 2009; (3) Mr. Mondrick ordered Plaintiff to perform a "water test" when another plumber was not required to do so in 2009; (4) Plaintiff's name was omitted from Rome's Master Plumber list in 2011, even though Plaintiff paid the annual renewal fee; (5) Mr. Mondrick sent a fraudulent letter telling Plaintiff he would have to "re-test for the plumbing exam" in 2011; (6) Code Enforcement issued a "stop work" order on his air conditioning installation in 2012; (7) Plaintiff learned that Mr. Mondrick passed final plumbing inspections on two permits issued to Plaintiff without his knowledge in 2012 and that Mr. Domenico issued "illegal" certificates of occupancy on those permits; (8) Rome's Corporation Counsel told Plaintiff that Mr. Mondrick could interpret the plumbing codes as "he sees fit" in 2012; (9) Plaintiff was served Summons # 13-232 on November 20, 2013, based on false criminal charges, and appeared in court on December 3, 2013. All of the conduct occurring prior to May 24, 2014, is barred by the statute of limitations.
The Court liberally construes Plaintiff's claim based on service of the Summons as a claim for abuse of process. In New York, "a malicious abuse-of-process claim lies against a defendant who (1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse of justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process." Savino v. City of New York, 331 F.3d 63, 76 (2d Cir. 2003) (citation omitted). Malicious abuse of criminal process also supports liability under § 1983. Id. at 76-77 (citation omitted).
Plaintiff's allegations do not amount to a "continuing violation." The continuing violation doctrine, where applicable, is an "exception to the normal knew-or-should-have-known accrual date" if there is evidence of an ongoing discriminatory policy or practice. Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015) (quoting Harris v. City of N.Y., 186 F.3d 243, 248 (2d Cir. 1999)). The continuing violation doctrine does not apply to "discrete acts," even where those discrete acts are a part of a "serial violation," but only to claims that "by their nature accrue only after the plaintiff has been subjected to some threshold amount of mistreatment." Id. (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 111 (2002)). When the doctrine applies, the limitations period begins to run when the defendant has engaged in "enough activity to make out an actionable . . . claim," as long as the plaintiff has alleged some non-time-barred acts which contributed to the alleged violation. Id. (quoting Morgan, 536 U.S. at 117; Harris, 186 F.3d at 250) (internal quotations omitted). A continuing violation cannot "be established merely because the claimant continues to feel the effects of a time-barred discriminatory act." Harris, 186 F.3d at 250.
The continuing violation doctrine is generally disfavored in this Circuit. See Town of Ramopo v. Town of Clarkstown, No. 16 Civ. 2004 (NSR), 2017 WL 782500, at *5 (S.D.N.Y. Feb. 27, 2017); Grimes v. Fremont Gen. Corp., 785 F. Supp. 2d 269, 292 (S.D.N.Y. 2011) ("Courts in the Second Circuit and elsewhere have been loath to apply the continuing violation doctrine absent a showing of compelling circumstances.") (internal citation, quotation marks, and brackets omitted).
Here, all of the above incidents occurred prior to May 24, 2014. Even assuming that Plaintiff was being targeted for mistreatment, each act is a discrete event, including facts resulting in Plaintiff's criminal charges. Most of the alleged conduct occurred many months, if not years, apart. The fact that Rome changed the way plumbers obtained permits in 2007, or that Plaintiff had to perform a water test in 2009, while another plumber did not, or that Plaintiff was omitted from the Master Plumber list in 2011, or Plaintiff was issued a stop work order for the air conditioning installation in 2012, or that Plaintiff was issued a Summons based on false criminal charges in 2013, are all discreet acts, which if actionable at all, would have been actionable at the time they occurred. To be sure, Plaintiff seems to have issues with Mr. Mondrick and other employees of the City, but the Court finds no compelling circumstances present to warrant applying the continuing violation doctrine.
In addition, there is no indication at this time that this is one of those extraordinary cases in which equitable tolling should apply. Plaintiff has suspected for a long time that Mr. Mondrick and employees of the City do not like him, and there is no indication that Plaintiff was prevented from filing a lawsuit. As such, the Court finds equitable tolling does not apply.
Therefore, the Court recommends dismissing Plaintiff's claims based on the above time-barred events pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.
2. Code Enforcement and Procedures
By his third cause of action, Plaintiff challenges the constitutionality of Rome's code enforcement policies and procedures. (Dkt. No. 1 at 11.) Specifically, Plaintiff contends that the June 6, 2013, stop work order was "exceptionally vague." Id. Plaintiff claims that City employees "misinformed [him] over the phone that the problem was the scaffolding; when apparently it wasn't." Id. Plaintiff claims that "[n]o policy was in place to correctly and with specificity communicate exactly what violated the Rome City Codes; and exactly what I needed to do to fix the problem." Id. Nor was there a "follow-up procedure" in place to "make sure" Plaintiff knew what was expected of him. Id. Plaintiff alleges he "was given no opportunity to correct the problem . . . because it was never communicated to [him]." Id. According to Plaintiff, it was not until December 3, 2013, when Plaintiff appeared in court that he learned removing the scaffolding did not resolve the issue. Id.
In addition, Plaintiff claims that Rome's "code enforcement policies and procedures open the door for Rome codes officials to arbitrarily and discriminatorily make accusations of code violations; and then to arbitrarily and discriminatorily enforce and prosecute those violations as they did with [Plaintiff]." Id. Plaintiff thus claims that "Rome's code enforcement policies and procedure (or lack thereof) encourage its employees and officials to abuse the authority of their offices of public trust to discriminate against the citizens of Rome based on their own biases." Id.
Here, Plaintiff's claim, if actionable at all, accrued on June 6, 2013, when Rome issued the stop work order or, at the very latest, on December 3, 2016, when Plaintiff appeared in court. Thus, Plaintiff's claim became timed-barred on December 3, 2016. The continuation violation doctrine and tolling are inapplicable to this claim for the same reasons discussed in Section IV.A.1. Therefore, without addressing the merits, the Court recommends dismissing Plaintiff's third cause of action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.
3. Rome's Plumbing and Plumber Licensing Policies and Procedure
Similarly, by his fourth cause of action Plaintiff claims that "Rome's policies and procedures regarding the licensing of plumbers, Rome's Master Plumber list and the methods and means used by Defendant Rome to bid and award plumbing contracts are unconstitutional." (Dkt. No. 1 at 12.)
As discussed above, Plaintiff claims Mr. Mondrick and other city officials "changed the way plumbing contracts were bid [on] in Rome" after Mr. Mondrick became the City's Plumbing Inspector in 2007. Id. at 4. As a result of this policy change, Plaintiff's business was negatively impacted. Id. In 2008, Plaintiff expressed his concerns to City officials that Mr. Mondrick could "abuse his position with the [C]ity to interfere" with Plaintiff's livelihood. Id. In this instance, Plaintiff's claim, if actionable at all, accrued at the latest in 2008, when Plaintiff was aware that Rome's change in policy had a negative impact on his business. As such, this claim became time-barred in 2011.
Plaintiff also claims he was omitted from Rome's Master Plumber list in 2011, even though he paid the renewal fee. Id. at 6. As such, Plaintiff's claim, if actionable at all, accrued on March 7, 2011, when he received Mr. Mondrick's letter dated March 1, 2011, stating that Plaintiff's plumbing license was being "revoked" for failure to pay the annual renewal fee. Id. As such, this claim became timed-barred on March 7, 2014.
The Court finds the continuing violation doctrine and equitable tolling are inapplicable to this claim for the same reasons discussed in Section IV.A.1. Therefore, the Court recommends dismissing Plaintiff's fourth cause of action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.
B. Malicious Prosecution and Speedy Trial Claims
By his fifth and sixth causes of action, Plaintiff claims that the "manner in which Defendant Rome prosecuted [him] was malicious and unconscionable." Id. at 12. Specifically, Plaintiff claims that he was caused "to suffer nearly three years of constant threats to [his] liberty." Id. Plaintiff "lived in fear and extreme mental anguish and distress throughout this period . . . [which] had a negative impact on [his] over-all health." Id. Plaintiff claims that he was "humiliated" and his "reputation has been dragged through the mud for no just cause." Id. Plaintiff posits that "prosecution for a code violation that never actually occurred that extends beyond two years has got to be unconstitutional." Id.
To state a §1983 claim for malicious prosecution, a plaintiff must allege the four elements of a malicious prosecution claim under New York law—"(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions"—as well as a violation of the plaintiff's rights under the Fourth Amendment. Manganiello v. City of N.Y., 612 F.3d 149, 160-61 (2d Cir. 2010) (citations and quotation marks omitted).
As set forth above, a malicious prosecution claim accrues when there is a "favorable termination of criminal proceedings" against the plaintiff. Norwood, 2013 WL 1499599, at *15. According to Plaintiff, the criminal charges at issue were "dismissed" on March 4, 2016. (Dkt. No. 1 at 9.) Although not time-barred, the Court finds Plaintiff's malicious prosecution claim fails to state a claim upon which relief may be granted because Plaintiff did not receive "a favorable termination."
As discussed above, Plaintiff claims that in February 2016, Judge Gannon "told [Plaintiff] to get a permit for the third floor dorm window only to satisfy the case against [him]." (Dkt. No. 1 at 9.) On March 4, 2016, Plaintiff was issued a permit for the dorm window. Id. Later that day, Plaintiff brought a copy of the permit to Judge Gannon. Id. Judge Gannon told Plaintiff "the case was now satisfied and [that] if [he did not] get into trouble for six months it was dismissed like it never happened." Id. As such, Plaintiff apparently received an adjournment in contemplation of dismissal. See N.Y. Crim. Proc. Law § 170.55 (McKinney 2017).
However, "[i]t is black letter law that, under New York law, 'an adjournment in contemplation of dismissal is not considered to be a favorable termination.'" Lopez v. City of New York, No. 15 Civ. 1650 (NRB), 2017 WL 213243, at *4 (S.D.N.Y. Jan. 10, 2017) (quoting Shain v. Ellison, 273 F.3d 56, 68 (2d Cir. 2001), abrogated on other grounds by Florence v. Bd. of Choses Freeholders of Cty. of Burlington, 566 U.S. 318 (2012)); see also Smith-Hunter v. Harvey, 712 N.Y.S.2d 438, 442 (N.Y. 2000) ("[A]n adjournment in contemplation of dismissal—a disposition that requires the consent of the prosecutor, the accused and the court—does not qualify as a favorable termination.") (internal citation omitted).
Similarly, "in order to adequately plead a claim under § 1983 that he was tried and convicted in violation of his Sixth Amendment right to a speedy trial, plaintiff must allege that the criminal proceeding terminated in his favor." Bussey v. Devane, No. 13-CV-3660 (JS/WDW), 2013 WL 4459059, at *5-6 (E.D.N.Y. Aug. 16, 2013) (citing Montane v. Pettie, No. 10 Civ. 4404 (ARR), 2012 WL 1617713, at *3 (E.D.N.Y. May 8, 2012)); see also Corley v. Vance, No. 15 Civ. 1800 (KPF), 2015 WL 4164377, at *3 (S.D.N.Y. June 22, 2015) ("As pleaded, [the plaintiff's] speedy trial, false arrest, false imprisonment, and malicious prosecution claims are barred because his criminal proceedings were not terminated in his favor.") (citing Heck, 512 U.S. at 484-87); Davis v. New York, No. 90 Civ. 6170(MBM), 2003 WL 1787151, at *1 (S.D.N.Y. Apr. 2, 2003) (dismissing speedy trial claim where the plaintiff could not show that his conviction had been invalidated).
Plaintiff also claims that "Defendant Rome prosecuted me for a minor offense from December 2013 until March 2016[,] well beyond the statutory time limits permitted for prosecution" under New York Law. (Dkt. No. 1 at 12.) To support this allegation, Plaintiff relies on Article 30 of New York Criminal Procedure, which provides, in relevant part, "a prosecution for a misdemeanor must be commenced within two years after the commission thereof; a prosecution for a petty offense must be commenced within one year after the commission thereof." N.Y. Crim. Proc. Law §§ 30.10(2)(c)-(d). The Court finds this argument misplaced. First, based on the facts as pleaded, it appears that the prosecution was in fact commenced within the statutory period of time. In any event, a violation of New York Procedural Law "is not in itself a violation of the Constitution or federal law, an element of a [§] 1983 claim." Fobbs v. City of N.Y., No. 15-cv-6736 (PKC), 2017 WL 2656207, at *3 (S.D.N.Y. June 19, 2017).
Therefore, the Court recommends dismissing Plaintiff's fifth and sixth causes of action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.
C. Conspiracy Claims
By his first and second causes of action, Plaintiff alleges in conclusory fashion that "Defendant Rome and its employees engaged in a pattern of cooperative activities designed to interfere in the exercise of [his] civil rights and that these activities in fact did deprive [Plaintiff] of [his] civil rights under the United States Constitution[.]" Id. at 10; see also id. at 11.
The elements of a conspiracy claim under § 1983 are: (1) an agreement between two or more state actors or between a state actor and private actor; (2) to act in concert to inflict an unconstitutional injury on plaintiff; and (3) an overt act committed in furtherance of that goal causing damages. Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999); Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002).
To state a claim for a conspiracy under § 1985(3), a plaintiff must allege "four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States." Robinson v. Allstate Ins. Co., 508 F. App'x 7, 9 (2d Cir. 2013) (summary order) (quoting United Board of Carpenters v. Scott, 463 U.S. 825, 828-29 (1983)).
Vague and conclusory allegations that defendants have engaged in a conspiracy must be dismissed. Ciambriello, 292 F.3d at 325; Webb v. Goord, 340 F.3d 105, 110-11 (2d Cir. 2003) (to maintain a conspiracy action, the plaintiff "must provide some factual basis supporting a meeting of the minds"); Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983) ("A complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss."). "[A]lthough a plaintiff does not need to provide detailed factual allegations, the allegations in the complaint must be 'enough to raise a right to relief above the speculative level.'" Flores v. Levy, No. 07-CV-3753, 2008 WL 4394681, at *9 (E.D.N.Y. Sep. 23, 2008) (quoting Twombly, 550 U.S. at 554). Moreover, conspiracy claims under §§ 1983 and 1985 "fail[] as a matter of law where there is no underlying constitutional violation." Tirse, 2016 WL 4046780, at *18.
Here, inasmuch as the Court is recommending dismissal of the predicate claims, the Court also recommends dismissing Plaintiff's conspiracy claims under §§ 1983 and 1985. See, e.g., McGee v. Doe, 568 F. App'x 32, 36, 39 (2d Cir. 2014) (affirming dismissal of malicious prosecution claim and conspiracy claim predicated upon malicious prosecution where the plaintiff did not receive a favorable termination); LaRocco v. Jackson, No. 10-CV-01651 (NGG)(LB), 2012 WL 947554, at *3 (E.D.N.Y. Mar. 19, 2012) ("Because [the plaintiff's] claim for false arrest and malicious prosecution are dismissed, his claim for conspiracy to commit those violations must be dismissed as well.") (citing Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir. 2001); Pugh v. New York City, No. 01-CV-0129 (ILG), 2002 WL 398804, at *2 n.4 (E.D.N.Y. Jan. 15, 2002)).
Additionally, the Court finds that Plaintiff's allegations, even when read with the utmost of special liberality, are impermissibly vague and conclusory to plausibly suggest a conspiracy. Further, Plaintiff has not alleged any race or class based animus as required to support a § 1985 conspiracy claim. "In this context, 'class-based animus' encompasses only those groups with discrete and immutable characteristics such as race, national origin, and sex." Martin v. N.Y.S. Dep't. of Corr. Servs., 115 F. Supp. 2d 307, 316 (N.D.N.Y. 2000) (citations omitted).
Moreover, even if Plaintiff's conspiracy claims were found to be more than conclusory and not time-barred, as pleaded, Plaintiff's claims would likely be barred by the "intra-agency conspiracy" doctrine. See Griffin-Nolan v. Providence Washington Ins. Co., No. 5:04-CV-1453 (FJS/GJD), 2005 WL 1460424, at *10-11 (N.D.N.Y. June 20, 2005); see also Little v. City of N. Y., 487 F. Supp. 2d 426, 441-42 (S.D.N.Y. 2007) (citations omitted). Generally, that doctrine provides that officers, agents or employees of a single corporate entity are legally incapable of conspiring together. Everson v. New York City Transit Auth., 216 F. Supp. 2d 71, 76 (E.D.N.Y. 2002) (citation omitted).
Therefore, the Court recommends dismissing Plaintiff's first and second causes of action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.
D. Municipality Liability
Plaintiff seeks to hold the City of Rome liable for the above outlined events. However, his complaint fails to allege facts meeting the standard for establishing municipality liability as laid out in Monell v. Dep't of Soc. Servs. of the City of N.Y., 436 U.S. 658 (1978). In order to set forth a cognizable claim for municipal liability under § 1983, a plaintiff must plead and prove that a deprivation of his constitutional rights "was caused by a governmental custom, policy, or usage of the municipality." Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell, 436 U.S. at 690-61); see also Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) ("The plaintiff must first prove the existence of a municipal policy or custom in order to show that the municipality took some action that caused his injuries beyond merely employing the misbehaving officer. Second, the plaintiff must establish a causal connection an 'affirmative link' between the policy and the deprivation of his constitutional rights.") (citing Oklahoma v. Tuttle, 471 U.S. 808, 824 n. 8 (1985)). Indeed, municipalities may only be held liable when the municipality itself deprives an individual of a constitutional right; it "may not be held liable on a theory of respondeat superior." Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000).
Here, even liberally construed, Plaintiff has failed to identify or allege any facts showing the existence of a municipal policy or custom of the City of Rome with regard to any of his claims. Therefore, the Court recommends that the action be dismissed against the City for failure to state a claim pursuant to 28 U.S.C. §1915(e)(2)(B). See Plair, 789 F. Supp. 2d at 469 ("Following Iqbal and Twombly, Monell claims must satisfy the plausibility standard[.]"); see also Meehan v. Kenville, 555 F. App'x 116, 117 (2d Cir. 2014) (summary order) (claim against municipal entity was properly dismissed under 28 U.S.C. § 1915 for "failure to plausibly allege that any constitutional violation resulted from a custom, policy or practice of the municipality"); Irvine v. City of Syracuse, No. 5:14-CV-1565 (TJM/DEP), 2015 WL 2401722, at * 6-7 (N.D.N.Y. May 19, 2015) (dismissing Monell claim pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim); Santagata v. City of N.Y., No. 17-CV-3053 (PKC)(CLP), 2017 WL 2963453, at *2 (E.D.N.Y. July 11, 2017) (same).
V. OPPORTUNITY TO AMEND
Based on the foregoing, the Court recommends dismissal of Plaintiff's complaint in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted.
Generally, when the court dismisses a pro se complaint sua sponte, the plaintiff should be afforded the opportunity to amend at least once. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted). However, leave to re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the problem with plaintiff's causes of action is substantive such that better pleading will not cure it. Cuoco, 222 F.3d at 112 (citation omitted); see Ruffolo, 987 F.2d at 131 ("Where it appears that granting leave to amend is unlikely to be productive . . . it is not an abuse of discretion to deny leave to amend.").
For the reasons discussed is Section IV.A., all of Plaintiff's claims that accrued prior to May 24, 2014, are barred by the statute of limitations. Nonetheless, a district court typically should not dismiss claims as time-barred without providing a pro se plaintiff with "notice and opportunity to be heard" as to whether there might be a meritorious tolling argument or other reason why the complaint might be considered. See Abbas, 480 F.3d at 640. Therefore, it is recommended that Plaintiff's time-barred claims be dismissed with leave to amend. Likewise, it is recommended that Plaintiff's conspiracy claims predicated upon his time-barred claims be dismissed with leave to amend. This by no means suggests that Plaintiff's time-barred claims are meritorious, as it appears very unlikely that Plaintiff can state federal constitutional claims based upon any of the time-barred claims in his complaint.
It is also recommended that Plaintiff's Monell claims be dismissed with leave to amend. Cuoco, 222 F.3d at 112. See, e.g., Lynch v. Claus, No. 1:13-cv-830 (GLS/CFH), 2013 WL 4455625, at * (N.D.N.Y. Aug. 16, 2013) (affording pro se plaintiff an opportunity to amend potential Monell claims).
For the reasons set forth in Section IV.B., the problem with Plaintiff's malicious prosecution and speedy trial claims is substantive, such that better pleading will not cure it. See Ruffolo, 987 F.2d at 131. Therefore, it is recommended that Plaintiff's malicious prosecution and speedy trial claims be dismissed without leave to amend. See, e.g., LaRocco, 2012 WL 947554, at *3-4 (dismissing malicious prosecution claim with prejudice where the plaintiff could not plead essential elements of the claim, including favorable discharge). Likewise, it is recommended that Plaintiff's conspiracy claims predicated upon his malicious prosecution and speedy trial claims be dismissed without leave to amend. Id. (dismissing conspiracy claim predicated on malicious prosecution with prejudice).
WHEREFORE, based on the findings above, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 2) is GRANTED; and it is further
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED IN ITS ENTIRETY pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim; and it is further
RECOMMENDED that Plaintiff's time-barred claims, claims for conspiracy based upon the same, and Monell claims be dismissed with leave to amend; and it is further
RECOMMENDED that Plaintiff's claims for malicious prosecution and speedy trial, and claims for conspiracy based upon the same, be dismissed without leave to amend; 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 decision 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.
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).
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). Dated: August 7, 2017
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge