Opinion
9:21-cv-00715(DNH/TWD)
11-23-2022
ADRIAN M. ATUTIS, Plaintiff, v. GEORGE KNAPP, et al., Defendants.
ADRIAN M. ATUTIS Plaintiff, Pro Se BROOME COUNTY JENNIFER L. CHURCH, ESQ. ATTORNEY'S OFFICE Attorneys for Defendants
ADRIAN M. ATUTIS Plaintiff, Pro Se
BROOME COUNTY JENNIFER L. CHURCH, ESQ. ATTORNEY'S OFFICE Attorneys for Defendants
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, United States Magistrate Judge
I. INTRODUCTION
This matter has been referred for a Report and Recommendation by the Honorable David N. Hurd, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Adrian M. Atutis (“Plaintiff”) commenced this action pursuant to 42 U.S.C. § 1983 alleging wrongdoings while he was confined at the Broome County Correctional Facility (“Facility”) as a pretrial detainee. (Dkt. No. 1.) Following initial review of the amended complaint under 28 U.S.C. §§ 1915(e) & 1915A, only Plaintiff's Fourteenth Amendment excessive force claim against George Knapp, Renee Stock, Nicholas Bixby, Sean Pomeroy, and Richard Hrebin (collectively, “Defendants”) remains. (Dkt. Nos. 7, 9.) Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 32.) Plaintiff opposes the motion and Defendants have replied. (Dkt. Nos. 34, 35.) For the reasons set forth below, the Court recommends that Defendants' motion be denied.
II. BACKGROUND
On October 18, 2020, Plaintiff was involved in an incident with Defendants, which admittedly involved the use of force. (Dkt. No. 7 at 4; Dkt. No. 32-1 at ¶¶ 22-25.) The facts and circumstances of that use of force, however, are highly disputed.
In the verified amended complaint, Plaintiff states Defendants “beat him in a cell extraction for no good reason.” (Dkt. No. 7 at 4.) At approximately 12:24 a.m., Plaintiff was quietly doing legal work in his cell in the G-Pod unit when Officer Troutman told him to “go to bed”. (Dkt. No. 34-1 at 8.) After Plaintiff explained that he was “doing his legal work”, Troutman brought an “empty” 24-hour keep lock form and told Plaintiff to sign it. Id. at 9. Plaintiff admits that he refused to sign the form and crumpled the form into a ball, and flushed it down the toilet. Id.
All claims against Officer Troutman were dismissed on initial review of the original complaint. (Dkt. No. 5.)
Shortly after, Defendants arrived at Plaintiff's cell and told him to “get on the bed” and “turn around.” Id. Plaintiff complied. Id. Defendants then pushed Plaintiff face down into the mattress, “piled on top of [him] and started punching [him on his] body, head, back, arms, legs, and feet.” Id. Plaintiff was punched and kicked for approximately two to three minutes. Id. After he was “beaten and bruised and handcuffed,” Plaintiff was then “dragged” out of his cell and taken down the corridor to the “D-Block”, and beaten again. Id. at 10. As a result, Plaintiff suffered from bruising all over of his body, a fat lip, lacerations to his ankles and wrists, and he lost a toenail the next day. Id. On October 22, 2020, Plaintiff filed a grievance complaint for the “unwarranted beating.” (Dkt. No. 7 at 11.)
Defendants, Officer Troutman, and other employees at the Facility present a different version of events. (Dkt. Nos. 33-3 through 33-10.) To that end, Defendants maintain that at approximately 12:18 a.m., Plaintiff disrupted quiet hours by making comments while standing in the doorway of his cell of the G-Pod unit at the Facility. (Dkt. No. 32-1 at ¶ 12.) After hearing Plaintiff's comments, Officer Troutman checked on Plaintiff to see if he was okay. Id. at ¶ 15. In response, Plaintiff became belligerent and made several verbal threats directed at Officer Troutman. Id. Officer Troutman told Plaintiff he would be receiving a 24-hour keep lock for the verbal threats. Id. at ¶ 17. When Officer Troutman approached Plaintiff's cell with a keep lock notice, he explained to Plaintiff that he must sign the notice or he would be transferred to the D-Pod unit, also known as the “special housing unit.” Id. at ¶ 18. After Plaintiff was asked a third time to sign the notice, Plaintiff grabbed the form in an “aggressive manner” and “began pacing in his cell out of anger.” Id. Plaintiff then crumbled the notice and flushed it down the toilet while stating “fuck off”, which prompted Officer Troutman to call Central Control. Id.
At approximately 12:24 a.m., Defendants arrived to transfer Plaintiff to the D-Pod unit. Id. at ¶ 22. Plaintiff refused several direct orders to kneel on his bunk. Id. Defendants proceeded to enter Plaintiff's cell. Id. Upon entering Plaintiff's cell, Defendants attempted to handcuff Plaintiff, but he resisted and curled up in the fetal position. Id. at ¶ 23. Defendants used “soft hands” to attempt to gain control of Plaintiff. Id. at ¶ 24. “When Plaintiff's resistance became more violent Defendant Pomeroy applied a hands-only bent arm technique, as well as a hands-only use of force known as the Hypoglossal pressure point technique, to attempt [to] gain control of the Plaintiff to handcuff him which was unsuccessful.” Id. at ¶ 25.
Plaintiff refused to comply with their orders and proceeded to grab Defendants' hands, wrists, pepper spray, and batons. Id. at ¶ 26. In response, Defendants moved Plaintiff to the floor in an attempt to gain control, and Plaintiff violently kicked the entire time. Id. at ¶ 27. Plaintiff was given several orders to stop resisting and comply with orders, and he continued to refuse them all. Id. Defendant Hrebin then applied the “Hypoglossal pressure point technique” with “hands only” once more to place handcuffs on Plaintiff. (Dkt. No. 32-1 at ¶ 28.) Defendants gained control of Plaintiff, handcuffed him, and escorted him to the D-Pod unit without further incident. Id. at ¶ 29. An investigation into this incident was conducted after Plaintiff submitted a grievance complaint. Id. at ¶ 32. Plaintiff's allegations of assault were unfounded. Id.
III. STANDARD OF REVIEW
A court “shall grant summary judgment if 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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). The movant may meet this burden by showing that the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Salahuddin, 467 F.3d at 273. In that context, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
On summary judgment motions “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005). “At the summary judgment stage, a nonmoving party must offer some hard evidence showing that [his] version of the events is not wholly fanciful.” Id. (citation and internal quotation marks omitted). Accordingly, statements “that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obligated to “read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
In applying the summary judgment standard, the district court should not weigh evidence or assess the credibility of witnesses. Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996), IV. DISCUSSION
A. Excessive Force
The Court recommends denying summary judgment to Defendants. “Excessive force claims frequently involve factual disputes that make them difficult to resolve pursuant to summary judgment.” Velleca v. Pangburn, No. 9:20-CV-0887 (BKS/DJS), 2022 WL 2392543, at *2 (N.D.N.Y. June 2, 2022) (citation omitted), report-recommendation adopted, 2022 WL 2390243 (N.D.N.Y. July 1, 2022). This case is no different.
1. Legal Standard
“[T]he Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.” Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). The Supreme Court has held that “pretrial detainees (unlike convicted prisoners) cannot be punished at all.” Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015). “An officer's actions can amount to punishment if they are taken with ‘an expressed intent to punish.'” Frost v. New York City Police Dep't, 980 F.3d 231, 252 (2d Cir. 2020) (quoting Bell v. Wolfish, 441 U.S. 520, 538 (1979)). Alternatively, in the absence of an expressed intent to punish, “a pretrial detainee can nevertheless prevail by showing that the actions are not rationally related to a legitimate nonpunitive governmental purpose or that the actions appear excessive in relation to that purpose.” Kingsley, 576 U.S. at 398.
“[T]he appropriate standard for a pretrial detainee's excessive force claim is solely an objective one.” Id. at 397. A pretrial detainee “must show only that the force purposely or knowingly used against him was objectively unreasonable.” Id. at 396-97. The “objective reasonableness” standard “turns on the facts and circumstances of each particular case.” Frost, 980 F.3d at 252 (citing Kingsley, 576 U.S. at 397). Courts consider several factors to determine whether a defendant applied force reasonably including:
the reasonableness or unreasonableness of the force used; the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.Kingsley, 576 U.S. at 397. The determination regarding objective reasonableness is “made from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with 20/20 vision of hindsight.” Id. The factfinder must also “take account of the legitimate interests in managing a jail, acknowledging as part of the objective reasonableness analysis that deference to policies and practices needed to maintain order and institutional security is appropriate.” Frost, 980 F.3d at 252.
2. Analysis
Here, Defendants argue Plaintiff's excessive force claim fails as a matter of law because the record evidence demonstrates the use of force was “objectively reasonably” and “rationally related to a legitimate governmental purpose to gain control” of Plaintiff. Id. at 7-8. However, “resolv[ing] all ambiguities and draw[ing] all permissible factual inferences in favor of the party against whom summary judgment is sought,” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004), the Court finds material issues of fact regarding the amount and necessity of force preclude summary judgment.
As detailed above, the submissions on the instant motion make clear that a use of force took place on October 18, 2020. According to Plaintiff that force was unprovoked and unnecessary. Defendants maintain Plaintiff repeatedly refused to comply with direct orders and violently resisted Defendants by kicking them and attempted to remove a can of pepper spray and a baton affixed to Defendant Hrebin's duty belt. According to Defendants, the extent of the force to gain control of Plaintiff consisted only of “soft hands” and a Hypoglossal pressure point technique. Plaintiff expressly denies resisting orders and testified he did not kick Defendants or try to grab their batons or pepper spray. (Dkt. No. 34-2 at 18, 20.) Plaintiff maintains Defendants punched and kicked him for several minutes, handcuffed him, dragged him to another cell, and beat him again. Deciding which version of events to believe requires a credibility determination best left to a jury. Jennings v. Decker, No. 5:17-CV-0054 (LEK/TWD), 2021 WL 3471557, at *8 (N.D.N.Y. Aug. 6, 2021); see also Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (“Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.”).
In their reply brief, Defendants point out that Plaintiff admitted he knew what “quiet hours” meant, admitted he was asked more than once to take the keep lock form from Officer Troutman, and further admitted that he took the form, crumpled it up, and flushed it down the toilet, all of which was a disruption during quiet hours and a threat to the safety and security of the Facility. (Dkt. No. 35 at 5.) Thus, according to Defendants, a “reasonable” amount of force was necessary in order to handcuff Plaintiff, extract him from his cell, and transfer him to a new cell. Id. at 6. However, a reasonable jury could credit Plaintiff's version of events, i.e., Defendants punched, kicked, and restrained him with handcuffs, dragged him down the corridor without his shoes on, and beat him again when they reached the other cell, all while Plaintiff was not resisting and was being compliant, and find Defendants' force was unreasonable even assuming the initial cell extraction was justified. Accordingly, a reasonable jury could find Defendants used excessive force against Plaintiff including unnecessary and gratuitous punching, kicking, and dragging.
Defendants further contend they acted reasonably because Plaintiff's actions “greatly interfered with the safety and security of the Facility,” when he verbally threatened Officer Troutman and “actively resisted” Defendants' demands, which involved kicking the officers and his attempts to free himself from their control and to remove Defendant Hrebin's pepper spray and baton off his duty belt. (Dkt. No. 35 at 6-7.) However, as noted, Plaintiff expressly denies the foregoing.
Defendants also contend nothing in the record suggests Plaintiff sustained any injuries from the incident providing further support that the use of force-consisting of “soft hands” and applying a Hypoglossal pressure point technique-was objectively reasonable. (Dkt. No. 32-13 at 10; 35 at 6.) But contrary to Defendants' assertion, Plaintiff's submissions arguably show Defendants kicked, punched, and dragged him while handcuffed, and beat him while restrained, causing lacerations to his wrists and ankles, a fat lip, bruising all over his body, and trauma to his toenail resulting in “extreme pain for weeks after the incident.” (Dkt. No. 7 at 5; Dkt. No. 34-1 at 10, ¶ 10; Dkt. No. 34-1 at 31.) “A plaintiff need not demonstrate serious injury to prevail in an excessive force claim; bruising and other nonpermanent injuries are sufficient.” Sforza v. City of New York, No. 07-CIV-6122, 2009 WL 857496, at *15 (S.D.N.Y. Mar. 31, 2009) (citing Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004); Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987) (“If the force used was unreasonable and excessive, the plaintiff may recover even if the injuries inflicted were not permanent or severe.”)); see, e.g., Jennings, 2021 WL 3471557, at *9 (rejecting argument that summary judgment was appropriate on excessive force claim where the plaintiff's “medical records do not show proof of a complaint or treatment for injury”); Dallio v. Sanatamore, No. 9:06-CV-1154 (GTS/DRH), 2010 WL 125774, at *9 (N.D.N.Y. Jan. 7, 2010) (denying summary judgment due to hesitancy to resolve credibility issues and weighing evidence on summary judgment where the plaintiff alleged that he was repeatedly kicked and punched after he was subdued and restrained by correction officers, despite evidence showing both minor injuries the plaintiff suffered and defendants' contrary evidence); Cicio v. Lamora, 9:08-CV-431 (GLS/DEP), 2010 WL 1063875, at *7-8 (N.D.N.Y. Feb. 24, 2010) (denying summary judgment on excessive force claim despite “seemingly overwhelming” contradictory evidence, including plaintiff's very minor injury); see also Jacoby v. Phelix, No. 9:07-CV-872 (DNH/ATB), 2010 WL 1839299, at *8-9 (N.D.N.Y. Mar. 31, 2010) (summary judgment denied on excessive force claim where issues of fact remained both as to the nature of the interaction between defendant and plaintiff and its severity where plaintiff alleged defendant kicked and stomped on his feet causing his big toenail to fall off and defendant denied assaulting plaintiff).
Based on the foregoing, Defendants have not met their burden of showing that no genuine issue of material fact exists. Therefore, the Court recommends denying Defendants' motion for summary on the Fourteenth Amendment excessive force claim.
B. Personal Involvement
In their reply brief, Defendants contend summary judgment is warranted because Plaintiff is unable to establish the personal involvement of Defendants. (Dkt. No. 35 at 8.) To that end, Defendants point out Plaintiff admits he could not identify or describe any Defendant (except for the sergeant because he was ordering the other officers), and “nothing from the record suggests that Plaintiff could point to a specific punch or kick thrown by any Defendant.” (Dkt. No. 35 at 8; Dkt. No. 34-1 at 6, ¶ 33.) Instead, Plaintiff claims he was “beaten by a gang of officers all the while he was being compliant[.]” (Dkt. No. 34-1 at 5.) Similarly, during his deposition, Plaintiff could not attribute any specific conduct to a particular Defendant. (See Dkt. No. 34-1 at 20-24.)
“[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). In order to prevail on a Section 1983 cause of action against an individual, a plaintiff must show “a tangible connection between the acts of a defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). “[D]irect participation as a basis of liability in this context requires intentional participation in the conduct constituting a violation of the victim's rights by one who knew of the facts rendering it illegal.” Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (internal quotation marks omitted).
A personal involvement inquiry on summary judgment “examines only whether there is record evidence to support a factfinder's conclusion that the individual under consideration was involved in the alleged conduct.” Brandon v. Schroyer, No. 9:13-CV-0939 (TJM/DEP), 2016 WL 1638242, at *14 (N.D.N.Y. Feb. 26, 2016) (quotation marks omitted), reportrecommendation adopted, 2016 WL 1639904 (N.D.N.Y. Apr. 25, 2016), rev'd on other grounds sub nom. Brandon v. Kinter, 938 F.3d 21 (2d Cir. 2019). A plaintiff's verified complaint and deposition testimony constitutes such evidence and “[a]ny discrepancies or inconsistencies in [the] plaintiff's testimony are for a jury to assess.” Latouche v. Tompkins, No. 9:09-CV-308 (NAM/RFT), 2011 WL 1103045, at *5 (N.D.N.Y. Mar. 23, 2011).
A corrections officer is “personally involved in the use of excessive force if he either: (1) directly participates in an assault; or (2) was present during the assault, yet failed to intercede on behalf of the victim even though he had a reasonable opportunity to do so.” Jeffreys v. Rossi, 275 F.Supp.2d 463, 474 (S.D.N.Y.2003), aff'd sub nom. Jeffreys v. City of N.Y., 426 F.3d 549 (2d Cir. 2005); accord Tafari v. McCarthy, 714 F.Supp.2d 317, 342 (N.D.N.Y. 2010) (citing Jean-Laurent v. Wilkinson, 540 F.Supp.2d 501, 512 (S.D.N.Y. 2008)). Contrary to Defendants' assertion, “a plaintiff need not establish who, among a group of officers, directly participated in the attack and who failed to intervene.” Jeffreys, 275 F.Supp.2d at 474.
Based upon the record and Plaintiff's sworn testimony, there are triable issues of fact regarding Defendants' personal involvement. (Dkt. No. 7 at 4; Dkt. No. 32-1 at ¶¶ 22-30.) Cf. Scarbrough v. Thompson, No. 10-CV-901 (TJM/CFH), 2012 WL 7761439, at *10 (N.D.N.Y. Dec. 12, 2012) (summary judgment granted where inmate failed to allege that supervisor was present for the extraction and directly failed to intervene to protect inmate from excessive force). Accordingly, the Court recommends denying Defendants' motion for summary judgment on this ground.
C. Qualified Immunity
Defendants further assert they are shielded from liability based on qualified immunity. (Dkt. No. 32-13 at 10-11.) “It is well established that qualified immunity may operate as a defense to excessive force claims.” Butchino v. City of Plattsburg, No. 8:20-CV-796 (MAD/CFH), 2022 WL 137721, at *5 (N.D.N.Y. Jan. 14, 2022) (quoting Betts v. Rodriquez, No. 15-CV-3836, 2017 WL 2124443, at *4 (S.D.N.Y. May 15, 2017)).
“Under the doctrine of qualified immunity, ‘government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Tracy v. Freshwater, 623 F.3d 90, 95-96 (2d Cir. 2010) (quoting Kelsey v. Cty. of Schoharie, 567 F.3d 54, 60-61 (2d Cir. 2009)). The Court is mindful that qualified immunity is “‘an entitlement not to stand trial or face the other burdens of litigation,'” and that this privilege is “‘effectively lost if a case is erroneously permitted to go to trial.'” Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
The disputed amount and necessity of force in this case makes summary judgement on qualified immunity inappropriate. See Frost, 980 F.3d at 255 (because a dispute of facts exists, summary judgement on the defendants' qualified immunity defense is unwarranted); Kerman v. City of New York, 261 F.3d 229, 240 (2d. Cir. 2001) (holding “summary judgement on qualified immunity grounds is not appropriate when there are facts in dispute that are material to a determination of reasonableness”); Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir. 1998) (“[S]ummary judgment based either on the merits or on qualified immunity requires that no dispute about material factual issues remain ....”).
Construing the facts in Plaintiff's favor, Defendants punched, kicked, restrained Plaintiff with handcuffs, dragged him down the corridor without his shoes on, and beat him again when they reached the other cell, all while Plaintiff claims he was not resisting and was being compliant. The Second Circuit caselaw clearly establishes that once restrained by officers, repeated punches may constitute excessive force. Butchino, 2022 WL 137721 at *6 (quoting Garner v. Robinson, No. 16-CIV-1548, 2018 WL 722858, *6 (S.D.N.Y. Feb. 6, 2018)); Lennox v. Miller, 968 F.3d 150, 157 (2d Cir. 2020) (holding that it is “clearly established by our Circuit caselaw that it is impermissible to use significant force against a restrained arrestee who is not actively resisting”). Even if Plaintiff did initially resist, it is equally well established that “gratuitous force after resistance has stopped and compliance has been secured is unreasonable.” Lee v. City of Troy, 520 F.Supp.3d 191, 207 (N.D.N.Y. 2021) (citing Lennox, 968 F.3d at 157).
Accordingly, due to the factual dispute over the level of force used by Defendants and Plaintiff's level of resistance, as well as the timing of the alleged excessive force, the Court recommends denying Defendants' motion for summary judgment on the grounds of qualified immunity.
D. State Law Claims
Defendants also seek summary judgment and dismissal of any state law claims properly pled by Plaintiff because of his failure to comply with General Municipal Law § 50-e-(1), § 50-j. (Dkt. No. 32-13 at 5; Dkt. No. 35 at 4-5.) As discussed herein, only Plaintiff's Fourteenth Amendment excessive force claim survived initial review. (Dkt. No. 9.) Therefore, the Court does not address this argument because no state law claims remain.
WHEREFORE, after carefully reviewing the entire record in this matter, the parties' submissions and the applicable law, and for the above-stated reasons, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 32) be DENIED; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (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) (per curiam)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).
IT IS SO ORDERED.