Opinion
17 Civ. 4448 (GBD) (GWG)
08-17-2018
ZIMMIAN TABB, Plaintiff, v. P.O. AUSTIN HIERONYMI, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff Zimmian Tabb brings this action pursuant to 42 U.S.C. §§ 1983, 1985 against Police Officer Austin Hieronymi, Sergeant Meiyue Gong, Sergeant Ariana Esteban, and Sergeant Salvatore Ronzino of the New York City Police Department ("NYPD"), alleging that the defendants unlawfully arrested him, searched his vehicle, and strip searched him. Defendants now move for summary judgment. For the reasons set forth below, this motion should be granted.
Letter from Zimmian Tabb, dated Mar. 18, 2018 (Docket # 27) ("Tabb Mar. 18 Letter"); Notice of Motion for Summary Judgment, dated Mar. 23, 2018 (Docket # 28) ("Defs. Not."); Defendants' Statement Pursuant to Local Rule 56.1, dated Mar. 23, 2018 (Docket # 30) ("Defs. 56.1 Statement"); Declaration of Kavin Thadani in Support of Defendants' Motion for Summary Judgment, dated Mar. 23, 2018 (Docket # 31) ("Thadani Decl."); Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment, dated Mar. 23, 2018 (Docket # 32) ("Defs. Mem."); Second Letter from Zimmian Tabb, dated Apr. 1, 2018 (Docket # 35) ("Tabb Apr. 1 Letter"); Third Letter from Zimmian Tabb, dated Apr. 4, 2018 (Docket # 34) ("Tabb Apr. 4 Letter"); Reply Memorandum of Law in Further Support of Defendants' Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56, dated Apr. 25, 2018 (Docket # 36); Supplemental Reply Memorandum of Law in Further Support of Defendants' Motion for Summary Judgment, dated July 5, 2018 (Docket # 41) ("Defs. Supp. Mem.").
I. BACKGROUND
A. Facts
The following facts are undisputed unless otherwise noted.
At approximately 4:05 a.m. on August 13, 2016, the NYPD received a 911 call in which the caller reported that shots had been fired at or near East 217th Street and White Plains Road in the Bronx, New York, an area served by the NYPD's 47th precinct. See Event Chronology — D16081304216, dated Aug. 13, 2016 (annexed as Ex. A to Thadani Decl.), at *2. An event chronology documenting the call indicated that the perpetrator had been driving a white BMW with a possible license plate number of HAV1389 or HAV1839. Id. at *2-3. The event chronology also indicated that the suspect had a black firearm, and was wearing a grey t-shirt and grey shorts. Id. at *2.
Page numbers cited as "*___" refer to the pagination created by the ECF system.
Officer Hieronymi responded to this call and stopped a white 2011 BMW bearing the license plate HAV1839 on East 217 Street and Bronxwood Avenue. See New York City Police Department Omniform System — Complaints, dated Aug. 13, 2016 (annexed as Ex. B to Thadani Decl.) ("Complaint Report"), at *2, *6. The car had two occupants, one of whom was Tabb. Id. at *2. The other occupant was wearing grey shorts and a grey "t-shirt or tank top." Id. at *5. Although Officer Hieronymi asserts that he discovered upon a brief investigation that both Tabb and the other occupant had open warrants, id. at *2, Tabb disputes this and contends that no warrant was open for his arrest at that time, see Civil Rights Complaint, dated June 7, 2017 (Docket # 2) ("Compl."), at *4.
While still at the location at which the stop occurred, Officer Hieronymi searched the white BMW while Tabb stood at the back of the vehicle, but found no contraband. See Compl. at *4; Defs. 56.1 Statement ¶ 7. Nevertheless, NYPD officers arrested Tabb — allegedly based on the active warrant — and brought the vehicle back to the 47th precinct to determine its owner. Compl. at *5; Complaint Report at *3. NYPD officers again searched the BMW at the precinct, and this time found 75 bags of crack cocaine and one bag of marijuana in it. Complaint Report at *3. As a result, on September 15, 2016, Tabb was charged federally in a sealed complaint with narcotics possession with intent to distribute, in violation of 21 U.S.C. §§ 812, 841(a)(1), (b)(1)(C). See Sealed Complaint, dated Sept. 15, 2016 (annexed as Ex. D to Thadani Decl.).
Tabb does not mention this second search in his complaint, see generally Compl., but does make note of it in his papers submitted in opposition to this motion, see, e.g., Tabb Apr. 1 Letter at *3.
On May 5, 2017, Tabb pleaded guilty to possession with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 812, 841(b)(1)(C). Transcript of Plea Proceeding Held on May 5, 2017 (annexed as Ex. E to Thadani Decl.), at 6, 14-17. During the allocution, Tabb acknowledged that on August 13, 2016, he "aided and abetted possession with intent to distribute approximately 3.75 grams of crack cocaine" by "knowingly and intentionally allowing a person to place his crack cocaine in the vehicle [Tabb] was driving," that he knew the person he was driving intended to distribute the drugs, that he intended to help that person, and that he drove his vehicle with that person inside of it. Id. at 14-15.
B. Procedural History
On June 13, 2017, Tabb filed the complaint in this action. See Compl. On March 23, 2018, defendants filed the instant motion for summary judgment. See Defs. Not. After Tabb responded, and the defendants submitted their reply, this Court ordered the defendants to submit supplemental briefing "explaining why they have shown by admissible evidence that Officer Hieronymi had probable cause to arrest Tabb on August 13, 2016." See Order, dated June 8, 2018 (Docket # 38), at 1. Specifically, the Court requested defendants explain why the evidence they had submitted in support of their motion for summary judgment was admissible, and thus could be properly considered on a motion for summary judgment. Id. Defendants filed such supplemental briefing, as well as affidavits in support of their motion, on July 5, 2018. See Defs. Supp. Mem. Tabb was given until July 20, 2018, to respond to this supplemental briefing, see Memorandum Endorsement of Letter from John L. Garcia, filed June 14, 2018 (Docket # 40), at 2, but did not file any response.
II. APPLICABLE LAW
Rule 56(a) of the Federal Rules of Civil Procedure states that summary judgment shall be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Beard v. Banks, 548 U.S. 521, 529 (2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), and citing Fed. R. Civ. P. 56(c)). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether a genuine issue of material fact exists, "[t]he evidence of the non-movant is to be believed," and the court must draw "all justifiable inferences" in favor of the non-moving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). Nevertheless, once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial,'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis and additional citation omitted), and "may not rely on conclusory allegations or unsubstantiated speculation," Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citation omitted). In other words, the nonmovant must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256. Furthermore, "only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment." See Porter v. Quarantillo, 722 F.3d 94, 97 (2d Cir. 2013) (alteration in original) (alteration, citation, and internal quotation marks omitted).
Where "the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to 'make a showing sufficient to establish the existence of an element essential to [its] case.'" Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (alteration in original) (quoting Celotex, 477 U.S. at 322). Thus, "[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48).
Because Tabb appears pro se, we construe his papers "liberally and interpret them 'to raise the strongest arguments that they suggest.'" Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nonetheless, "our application of this different standard does not relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (citation and internal quotation marks omitted); see also Bennett v. James, 737 F. Supp. 2d 219, 226 (S.D.N.Y. 2010) ("Notwithstanding the deference to which a pro se litigant is entitled, as well as the deference accorded to a non-movant on a summary judgment motion, [the non-movant] must produce specific facts to rebut the movant's showing and to establish that there are material issues of fact requiring a trial.") (alteration, citations, and internal quotation marks omitted), aff'd, 441 F. App'x 816 (2d Cir. 2011).
III. DISCUSSION
Tabb does not specify exactly which of his constitutional rights were allegedly violated. Liberally construing his complaint, we view the complaint as asserting that Tabb's Fourth Amendment right to be free from unreasonable searches and seizures was violated when NYPD officers: (1) arrested him on the basis of an open warrant; and (2) searched his vehicle at the location at which his car was stopped. In his papers submitted in opposition to this motion Tabb also asserts that he was strip searched. See, e.g., Tabb Apr. 1 Letter at *3-5. We discuss this assertion below as well.
A. Personal Involvement
"It is well settled that, in order to establish a defendant's individual liability in a suit brought under § 1983, a plaintiff must show, inter alia, the defendant's personal involvement in the alleged constitutional deprivation." Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (citations omitted); accord Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) ("[I]n this Circuit personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.") (citation and internal quotation marks omitted); Magnotta v. Putnam Cty. Sheriff, 2014 WL 705281, at *7 (S.D.N.Y. Feb. 24, 2014). Here, nothing in Tabb's submissions or in his sworn complaint suggests that Sergeants Esteban and Ronzino were personally involved in any actions that allegedly violated Tabb's constitutional rights. Because Tabb has failed to offer any evidence showing the personal involvement of Sergeants Esteban and Ronzino in the alleged constitutional violations, Tabb's claims against them must be dismissed.
By contrast, Tabb alleges that Officer Hieronymi and Sergeant Gong stopped Tabb's vehicle on August 13, 2016, and participated in its search, see Compl. at *4 — a claim not contested by defendants. We therefore analyze whether there is a genuine dispute of material fact regarding Tabb's false arrest and unlawful search claims as to these defendants.
B. False Arrest
While a person's right to be free from unreasonable seizures may be violated when the person is arrested without probable cause, Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996), "[t]here can be no federal civil rights claim for false arrest where the arresting officer had probable cause." Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995). "Probable cause exists where the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed [by the person to be arrested]." Dunaway v. New York, 442 U.S. 200, 208 n.9 (1979) (alteration in original) (citations and internal quotation marks omitted).
Importantly, "[w]hen an officer learns from a computer database . . . that a person is the subject of an outstanding arrest warrant, probable cause exists to arrest that person." United States v. Miller, 265 F. App'x 5, 7 (2d Cir. 2008) (summary order) (citing United States v. Santa, 180 F.3d 20, 27 (2d Cir. 1999)); accord Palacios v. City of New York, 2017 WL 4011349, at *9 (S.D.N.Y. Sept. 11, 2017).
Here, Officer Hieronymi had probable cause to arrest Tabb because upon pulling Tabb over, he discovered that there was an active warrant for Tabb's arrest. While we recognize that plaintiff disputes this fact, all the admissible evidence supports a finding that the officer found such a warrant. Defendants have submitted a complaint report completed by Officer Hieronymi following Tabb's arrest, which notes that on August 13, 2016, Officer Hieronymi stopped Tabb's vehicle because its license plate matched the one reported to be involved in a shooting near the stop location, and upon doing so found that "both occupants were found to have open warrants." Complaint Report at *3.
The complaint report, if submitted at trial, would be hearsay because it contains the out of court statements of Officer Hieronymi that would be offered to prove the truth of the matter asserted in those statements — namely, that Officer Hieronymi did in fact discover an open warrant. See Fed. R. Evid. 801(c). Nevertheless, the defendants have submitted evidence that would allow the admission of this report under the business records exception to the rule against hearsay. See Fed. R. Evid. 803(6). To prove the admissibility of this report and lay the proper evidentiary foundation, defendants have submitted a declaration from Lieutenant Robert Corbett of the NYPD, who states that
[1] It is a regular practice of members of NYPD to prepare complaint reports for . . . arrests involving possession of controlled substances . . . . [2] Complaint Reports are reviewed and finalized within 24 hours of taking the report. [3] Complaint Reports are stored locally and centrally in NYPD's computer databases. . . . [4] Contemporaneous to Plaintiff's arrest, Officer Hieronymi prepared [the Complaint Report] . . . . [and the Complaint Report] was kept and maintained in the regular course of NYPD business.Declaration of Robert Corbett in Further Support of Defendants' Motion for Summary Judgment, dated July 5, 2018 (annexed as Ex. A to Defs. Supp. Mem.), ¶¶ 1-7. These statements are sufficient to show that the Complaint Report is admissible under the business records exception to the rule against hearsay. See Fed. R. Evid. 803(6); see also Rosario v. Amalgamated Ladies' Garment Cutters' Union, Local 10, 605 F.2d 1228, 1250-51 (2d Cir. 1979) (finding statements made in a police complaint report to be hearsay admissible under Rule 803(6)); Cooper v. City of New Rochelle, 925 F. Supp. 2d 588, 605 (S.D.N.Y. 2013) (noting that "a police report . . . [is] admissible as an exception to the hearsay rule . . . as a business record under Rule 803(6)") (some alterations in original) (internal quotation marks omitted) (quoting Goldstein v. Laurent, 2011 WL 3586447, at *4 (S.D.N.Y. Aug. 2, 2011)); accord Smith v. City of New York, 2016 WL 5793410, at *3 (S.D.N.Y. Sept. 30, 2016) ("[p]olice reports may be admissible under the Federal Rules of Evidence . . . as [a] business record[]"), aff'd, 697 F. App'x 88 (2d Cir. 2017).
Although Lieutenant Corbett was not the custodian of the complaint report, the Second Circuit has "given a very broad interpretation" to the phrase "custodian or other qualified witness," and has noted that "[t]he witness need only have enough familiarity with the record-keeping system of the business in question to explain how the record came into existence in the ordinary course of business." United States v. Lauersen, 348 F.3d 329, 342 (2d Cir. 2003) (citation and internal quotation marks omitted). Corbett's affidavit establishes that is the case here.
Additionally, an affidavit of Victor M. Gomez, the Deputy Chief Clerk in Arraignments in the Criminal Court of the City of New York, Bronx County, confirms that a warrant was issued on September 6, 2005, in a case bearing the docket number 2005SX105153, and that this warrant remained active until August 31, 2016, when it was vacated. See Declaration of Victor M. Gomez in Further Support of Defendants' Motion for Summary Judgment, dated July 5, 2018 (annexed as Ex. B to Defs. Supp. Mem.), ¶¶ 1, 3-4. Tabb's own documents submitted in conjunction with his opposition to this motion establish that he was the defendant in the case bearing the docket number 2005SX105153. See Warrant of Arrest for Zimmian Tabb, issued Sept. 6, 2005 (annexed as part of Ex. D at *14 to Tabb Apr. 4 Letter); DAS Snapshot — Summary for Zimmian Tabb, dated Jan. 15, 2017 (annexed as part of Ex. D at *15 to Tabb Apr. 4 Letter). Gomez's declaration, coupled with the documents submitted by Tabb, corroborates the existence of the warrant on which Officer Hieronymi relied in arresting Tabb.
The only evidence offered by Tabb to dispute the assertion that an active warrant existed for his arrest is his rap sheet: specifically, selected pages from his 38 page rap sheet, printed August 16, 2016, one of which indicates that he had "0" open or active warrants, and another stating that "[t]here is no NYS Wanted Information associated with this history." See Criminal Repository Inquiry for Zimmian Tabb, dated Aug. 16, 2016 (annexed at *9-*10 to Tabb Mar. 18 Letter); Criminal Repository Inquiry for Zimmian Tabb, dated Aug. 16, 2016 (annexed as Ex. B to Tabb Apr. 4 Letter). However, the fact that Tabb's rap sheet did not indicate an open warrant does not mean that no such warrant was listed in databases available to the arresting officers on August 13, 2018, when he was arrested. Tabb provides no evidence on the databases from which the rap sheet compiles open warrants and thus the rap sheet does little to negate the evidence that the warrant was listed in another database. Indeed, Tabb himself submits evidence showing that at least one database printout indicated that his warrant in the case at issue (docket number 2005SX105153) was still "active" as late as January 15, 2017. See DAS Snapshot — Summary for Zimmian Tabb, dated Jan. 15, 2017 (annexed as part of Ex. D at *15 to Tabb Apr. 4 Letter).
Tabb also argues that there was no open warrant at the time of his arrest because he had been in custody and had appeared in court after the warrant had issued. See, e.g., Tabb Mar. 18 Letter at *2. Similarly, Tabb also argues that there could not have been any warrant because he was never actually brought before a judge or arraigned on a warrant after he was arrested. See, e.g., Tabb Apr. 1 Letter at *3. Thus, according to Tabb, no warrant was open at the time of his arrest because if one were, then he would have been arrested on it earlier or charged after his arrest. These arguments at most show that Tabb's warrant should not have been open at the time of his arrest. They do not, however, refute the fact that the officers had access to a database that listed an open warrant at the time he was taken into custody. Even if the warrant remained open by some error, this would still be insufficient on its own to show that Officer Hieronymi lacked probable cause to arrest Tabb. See Willis v. City of New York, 2015 WL 556884, at *6-7 (S.D.N.Y. Feb. 9, 2015) (an "open warrant . . . on the date of the arrest provided probable cause to arrest" the subject of that warrant despite the fact that "at the time of the arrest, [the officer] relied on warrant information . . . that was no longer accurate").
This case is similar to Willis, in which the plaintiff brought a § 1983 action against several NYPD officers for, among other things, false arrest. See 2015 WL 556884 at *1-2. The officers moved for summary judgment in part on the basis that an officer relied on an open bench warrant in arresting the plaintiff. See id. at *5. Willis granted summary judgment, noting that the officer's "discovery of the bench warrant provided probable cause to arrest for an open warrant." Id. Willis found this to be the case even though, "unknown to [the officer] at the time [of the arrest], the warrant had been vacated earlier that day." Id. So too here, Officer Hieronymi arrested Tabb on the basis of an open warrant. Although Tabb presents arguments that support an inference that the warrant should not have remained open, and was listed as closed in some databases, Tabb fails to refute the evidence showing that the warrant was in fact listed as open in the database available to the officers at the time of the arrest. Tabb provides no evidence or argument challenging the reasonableness of the officers' reliance on that system.
Because a reasonable jury would have to find that Tabb's arrest was authorized by the purportedly open warrant, defendants' motion for summary judgment as to Tabb's false arrest claim should be granted.
C. Unlawful Search
Tabb claims that Officer Hieronymi's search of his vehicle at the location at which he was arrested constituted an unlawful search.
While the Supreme Court has held that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment," it has also articulated "a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). One such exception is the automobile exception. Under that exception, "[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more." Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per curiam); accord United States v. Navas, 597 F.3d 492, 497 (2d Cir. 2010). Moreover, the "justification to conduct such a warrantless search does not vanish once the car has been immobilized." Michigan v. Thomas, 458 U.S. 259, 261 (1982) (per curiam). Finally, "[a] vehicle lawfully in police custody may be searched on the basis of probable cause to believe that it contains contraband, and there is no requirement of exigent circumstances to justify such a warrantless search." United States v. Johns, 469 U.S. 478, 484 (1985) (citations omitted).
Officer Hieronymi had probable cause to believe that Tabb's vehicle contained contraband because the license plate, make, and color of the vehicle matched the description of a vehicle involved in a shooting at a location near where the traffic stop occurred. Additionally, the other occupant in the vehicle was wearing clothing matching the description of the shooter's. These facts and circumstances were "sufficient . . . to warrant a man of reasonable caution in the belief that evidence of a crime will be found in the place to be searched," United States v. Jones, 893 F.3d 66, 71 (2d Cir. 2018) (citation and internal quotation marks omitted) — namely, evidence relating to the reported shooting, such as a gun or ammunition. Finally, even though Tabb does not assert any claim in his complaint regarding the constitutionality of the search of his vehicle at the police precinct, that search was nevertheless constitutional as well because the fact that the vehicle was brought back to the 47th precinct does not render the automobile exception inapplicable. See Johns, 469 U.S. at 484.
Thus, defendants' motion for summary judgment as to Tabb's claim of unlawful search and seizure should be granted.
D. Alleged Strip Search
Finally, in his filings in opposition to the instant motion, Tabb briefly asserts that he was unlawfully strip searched. See, e.g., Tabb Apr. 1 Letter at *3-5. This claim does not appear in Tabb's complaint. "It is black letter law that a party may not raise new claims for the first time in opposition to summary judgment." Brandon v. City of New York, 705 F. Supp. 2d 261, 278 (S.D.N.Y. 2010) (citing cases). This is true even when the party making such allegations is pro se. Avillan v. Donahoe, 483 F. App'x 637, 639 (2d Cir. 2012) (summary order) (holding that the "district court did not err in disregarding allegations [the pro se plaintiff] raised for the first time in response to [the defendant's] summary judgment motion."). This claim is thus not part of this case and defendants are entitled to summary judgment on it as well.
Even if this claim had not been waived, Tabb has not presented evidence that would allow a finding of liability. Given the circumstances of Tabb's arrest, including the discovery of a significant quantity of drugs, there was reasonable suspicion warranting a strip search. See Hartline v. Gallo, 546 F.3d 95, 100 (2d Cir. 2008) (permitting a strip search where there is "reasonable suspicion that [a misdemeanor] arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest.") (alteration in original) (citation and internal quotation marks omitted).
IV. CONCLUSION
For the reasons set forth above, defendants' motion for summary judgment (Docket # 28) should be granted.
Because we find that Tabb's claims are not "likely to be of substance," see Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989) (per curiam), Tabb's request to have counsel appointed, see Tabb Mar. 18 Letter at *4, should be rejected.
PROCEDURE FOR FILING OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties have fourteen (14) days including weekends and holidays from service of this Report and Recommendation to serve and file any objections. See also Fed. R. Civ. P. 6(a), (b), (d). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. George B. Daniels at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Daniels. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. An, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Hawkins, Nellie, Britt Ingham, Glad & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). Dated: August 17, 2018
New York, New York
/s/_________
GABRIEL W. GORENSTEIN
United States Magistrate Judge Copy sent to: Zimmian Tabb
67663-054
MDC Brooklyn
Metropolitan Detention Center
P.O. Box 329002
Brooklyn, New York 11232