Brock v. The City of New York

Full title: MANDELA BROCK, Plaintiff, v. CITY OF NEW YORK et al., Defendants.

Court: United States District Court, S.D. New York

Date published: May 18, 2023

21 Civ. 3087 (PGG) (GWG) (S.D.N.Y. May. 18, 2023)

Opinion

21 Civ. 3087 (PGG) (GWG)

05-18-2023

MANDELA BROCK, Plaintiff, v. CITY OF NEW YORK et al., Defendants.

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

REPORT & RECOMMENDATION

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

Plaintiff pro se Mandela Brock brings this action under 42 U.S.C. § 1983 against defendants City of New York (the “City”), the ACACIA Network (“ACACIA”), Services for the Underserved (“SUS”), and a number of individual defendants. See Complaint, filed Apr. 9, 2021 (Docket # 2) (“Comp.”); First Amended Complaint, filed May 18, 2021 (Docket # 10) (“FAC”). Defendants SUS, Donnell Burt, Joel Bartin, Martine Green s/h/a ‘Jane Doe' Martine, Nydia Brown s/h/a ‘Jane Doe' Facility Manager, Suzette Baptiste s/h/a ‘Jane Doe' Baptiste, and Alicia Simmons s/h/a ‘Jane Doe' Simmons (collectively, the “SUS defendants”) have filed a motion to dismiss all of Brock's claims against them.¹ Separately, defendants ACACIA, Daniel Reyes, and Tatiana Cave (collectively, the “ACACIA defendants”) have moved for a judgment on the pleadings under Fed.R.Civ.P. 12(c).²

1 Motion to Dismiss, filed Jan. 13, 2023 (Docket # 61) (“SUS Mot.”); Memorandum of Law, filed Jan. 13, 2023 (Docket # 62) (“SUS Mem.”).

2 See Motion for Summary Judgment, filed Mar 2, 2023 (Docket # 68) (“ACACIA Mot.”); Declaration of Marisa J. Okun, filed Mar. 2, 2023 (Docket # 69); Memorandum of Law, filed Mar. 2, 2023 (Docket # 70) (“ACACIA Mem.”). While the ACACIA defendants' motion is styled as one for “summary judgment,” the relief it seeks is judgment on the pleadings pursuant to Rule 12(c), and thus we treat it as such.

For the reasons that follow, both motions should be granted.

I. BACKGROUND

A. Facts

The following facts from the First Amended Complaint are taken as true for the purposes of a motion to dismiss.

Brock began using the shelter system administered by the New York City Department of Homeless Services (“DHS”) in February 2020. FAC ¶ 22. In November 2020, Brock transferred with his minor child to a family shelter in the same system. Id. Following the transfer, Brock was found ineligible for services five times, but was able to obtain a temporary restraining order enjoining the City from evicting him. Id. ¶ 23; see also Temporary Restraining Order, annexed at ECF **27-28 to FAC. Brock alleges that during the time he was deemed ineligible by DHS, he was “maliciously intimidated, subjected to cruel and unusual treatment, unconstitutionally deprived of his Liberty, threatened, harassed, penalized, [and] discriminated against” by two ACACIA employees.³ See id. ¶ 24. He alleges that when he complained, the employees told him that he should “get his own house” if “he wanted to exercise his rights.” Id.

3 Neither Brock's initial complaint nor his amended complaint specifies the nature of the conduct alleged.

Brock alleges that after the temporary restraining order was lifted, one of the ACACIA employees “falsely claimed that [Brock] was being moved to a ‘Tier 2' [ ] facility . . . in order to obtain [Brock's signature] for a voluntary transfer,” but that he was instead moved to a hotel facility. Id. ¶ 28. Brock was administratively transferred to an SUS facility two days later, which he describes as a penalty for his attempts to defend his rights. See id. ¶¶ 29-30.

Brock alleges that, upon his arrival at the SUS facility, an SUS employee “seized and confiscated” Brock's clothing. Id. ¶ 32. Brock alleges that the SUS facility imposed unreasonable restrictions on his liberty by preventing him from leaving his minor child alone for short periods. See id. ¶¶ 33-35. He states that a second SUS employee filed a “malicious and fraudulent” child neglect complaint with the City's Administration for Children's Services, which was “renounced mere weeks later” when the agency informed Brock that he “was doing nothing wrong.” Id. ¶¶ 34-35.

Brock alleges that he was repeatedly locked out of the SUS facility during periods when his child was visiting the child's mother and was denied visitation passes for his child when he attempted to obtain them. Id. ¶¶ 38-40, 50-51. Brock attempted to file a police report following one such lockout, but he alleges that the responding officers told him that SUS rules “take precedence over the law.” Id. ¶¶ 42-49. Brock states that he alone among SUS residents is not permitted to have a key to his unit because SUS employees believe that “he won't follow the program rules.” Id. ¶ 51.

Brock notes that at the time of his filing, he was once again being administratively transferred within the family shelter system. Id. ¶ 58. Brock states that the transfer “appears to be in retaliation for the filing of this suit.” Id.

B. Procedural History

Brock filed his initial complaint in this matter on April 9, 2021. See Comp. On April 19, 2021, the Court pointed to defects in the complaint and gave Brock leave to file an amended complaint. See Order to Amend, filed Apr. 19, 2021 (Docket # 7) (“Order to Amend”), at 5. Brock filed the First Amended Complaint on May 18, 2021. See FAC. The non-City defendants filed answers to this complaint. ACACIA Network Answer, filed Oct. 4, 2021 (Docket # 16); Services for the Underserved Answer, filed Nov. 11, 2021 (Docket # 24).

On March 7, 2022, the City filed a motion to dismiss, see Motion to Dismiss, filed Mar. 7, 2022 (Docket # 44), which was granted, see Report and Recommendation, filed Sept. 29, 2022 (Docket # 52), adopted by Order, filed Dec. 29, 2022 (Docket # 57).

On January 13, 2023, the SUS defendants moved to dismiss the Amended Complaint's claims against them. See SUS Mot. Brock failed to respond to the motion. The Court ordered that by February 24, 2023, Brock either (1) file a letter stating that he did not oppose the motion or (2) file a letter or memorandum of law setting forth his opposition to that motion. See Order, filed Feb. 10, 2023 (Docket # 67). Brock failed to do so. The Court issued an Order to Show Cause as to why the case should not be dismissed for failure to prosecute given the lack of response to the SUS defendants' motion to dismiss. See Order, filed Mar. 13, 2023 (Docket # 72) (“Mar. 13 Order”).

The ACACIA defendants filed their motion, labeled as a “Motion for Summary Judgment,” but moving under Fed.R.Civ.P. 12(c) for a judgment on the pleadings dismissing the complaint's claims against them. See ACACIA Mot.⁴ Brock did not respond to that motion by the deadline. The Court ordered that by April 18, 2023, plaintiff either (1) file a letter stating that he does not oppose the motion or (2) file a letter or memorandum of law setting forth his opposition to that motion. See Order, filed Apr. 4, 2023 (Docket # 73).

4 Because adjudication of this motion requires no reference beyond the Amended Complaint, we need not convert the motion to be one for summary judgment as permitted by Fed.R.Civ.P. 12(d).

The only filing Brock has made since these orders were issued (or, indeed, since March 2022, more than a year ago) is a brief letter filed April 18, 2023 stating he objected to the ACACIA motion and requesting an additional 14 days to submit an objection to that motion. See Letter, filed Apr. 18, 2023 (Docket # 74). The Court noted that the request failed to comply with previous orders to show cause and provided no basis for an extension, but nevertheless granted an extension through April 26, 2023, for Brock to respond to the two dispositive motions and warned him again that the case could be dismissed for failure to prosecute under Rule 41 if he failed to do so. See Order, filed Apr. 19, 2023 (Docket # 77) (“Apr. 19 Order”). Brock did not provide any response to those motions or make any other appearance in the case by that deadline.

While there are good grounds to dismiss the case for failure to prosecute under Rule 41, we elect instead to address the two pending motions on the merits.

II. LEGAL STANDARD

A party may move to dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) where the opposing party's pleading “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). While a court must accept as true all of the allegations contained in a complaint, that principle does not apply to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”) (citation, internal quotation marks, and brackets omitted). In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice,” Iqbal, 556 U.S. at 678, and thus a court's first task is to disregard any conclusory statements in a complaint, id. at 679.

Next, a court must determine if a complaint contains “sufficient factual matter” which, if accepted as true, states a claim that is “plausible on its face.” Id. at 678 (citation and internal quotation marks omitted); accord Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (“[A] complaint must allege facts that are not merely consistent with the conclusion that the defendant violated the law, but which actively and plausibly suggest that conclusion.”). “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. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” a complaint is insufficient under Fed.R.Civ.P. 8(a) because it has merely “alleged” but not “‘show[n]' - ‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

In the case of pro se plaintiffs, “[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation marks omitted); accord McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be construed liberally and interpreted “to raise the strongest arguments that they suggest”) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). However, even pro se pleadings must contain factual allegations that “raise a right to relief above the speculative level.” Dawkins v. Gonyea, 646 F.Supp.2d 594, 603 (S.D.N.Y. 2009) (quoting Twombly, 550 U.S. at 555).

The rule of deference does not necessary apply to pro se litigants who are “extremely litigious” and thus “quite familiar” with pleading requirements. See Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir. 1994). Here, plaintiff is a serial litigant. See Order to Amend at 9-10 (collecting dismissed cases Brock has filed); Brock v. City of New York, No. 18-CV-4768 (BMC) (RML) (E.D.N.Y. Apr. 15, 2019) (Docket # 30), at 1 (identifying Brock as a “serial litigant”). Nonetheless, it is unnecessary to reach the question of whether Brock's pleadings should be accorded the special deference inasmuch as the complaint fails even with such deference.

“The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that for granting a Rule 12(b)(6) motion for failure to state a claim.” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 301 (2d Cir. 2021) (quoting Lynch v. City of New York, 952 F.3d 67, 75 (2d Cir. 2020)). Thus, we review the ACACIA defendants' motion under the same standard as the SUS defendants' motion.

III. DISCUSSION

A. Brock Has Not Satisfied the State Action Requirement for Either Set of Defendants Brock purports to make claims both under 42 U.S.C. § 1983 and the First, Fourth, Fifth, Sixth, Seventh, Thirteenth, and Fourteenth Amendments. See FAC at 16, 17, 21-23. “Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action,” Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d 178, 186 (2d Cir. 2005) (citation omitted), and thus must bring the action pursuant to § 1983. We therefore construe the First Amended Complaint as pursuing claims under § 1983 and under state law.

To prevail on a claim under § 1983, a plaintiff must show that a federal constitutional right was violated by a person acting under the color of state law - that is, by a “state actor.” See West v. Atkins, 487 U.S. 42, 48-49 (1988). None of the SUS defendants are alleged to be government entities or government officials. That is not the end of the matter, however, because in some circumstances a private party may be considered a state actor under § 1983. To determine whether a private party is a state actor, the Second Circuit has synthesized case law to allow for three possible categories:

(1) when the entity acts pursuant to the coercive power of the state or is controlled by the state (‘the compulsion test'); (2) when the state provides significant encouragement to the entity, the entity is a willful participant in joint activity with the state, or the entity's functions are entwined with state policies (‘the joint action test' or ‘close nexus test'); [and] (3) when the entity has been delegated a public function by the state (‘the public function test').

Barrows v. Becerra, 24 F.4th 116, 135 (2d Cir. 2022) (quoting Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012)); accord Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008).

Shortly after the filing of this lawsuit, Brock was informed of this requirement and granted leave to file an amended complaint. See Order to Amend at 5-6. In an attempt to address the state action requirement in his amended complaint, Brock made a series of allegations as to “DEFs 2 & 3” and tied them to each of the tests quoted above. See FAC ¶¶ 1014. Brock clarified that DEF 2 is ACACIA. Id. at 2. And although he has labeled both defendants SUS and Reyes as “DEF 3,” see id. at 2, we gather his references to DEFs 2 & 3 in the First Amended Complaint's state action section mean defendants ACACIA and SUS.

In response, the SUS defendants argue, among other things, that they do not qualify as state actors under § 1983. See SUS Mem. at 5-7. The ACACIA defendants also argue they are not state actors. See ACACIA Mem. at 4-11. We examine each of the governing tests next.

1. Compulsion

Under the compulsion test, it is not enough for a plaintiff to plead state involvement in “some activity of the institution alleged to have inflicted injury upon a plaintiff; rather, the plaintiff must allege that the state was involved with the activity that caused the injury giving rise to the action.” Sybalski, 546 F.3d at 257 (citation and punctuation omitted). Private decisions can be so imputed under the “compulsion” theory where the state “has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).

The problem here is that Brock's allegations are hopelessly conclusory. Brock alleges that whenever he complained to “‘DEFs 2 & 3' about the draconian, oppressive, and unconstitutional rules imposed upon him[,] they have uniformly stated: ‘those are the rules of DHS i.e., the Department of Homeless Services.'” FAC ¶ 11. Additionally, the amended complaint alleges that Cave falsely claiming Brock was being moved “to a ‘Tier 2' cooking facility . . . in order to obtain the signature of plaintiff for a voluntary transfer . . . amounts to fraudulent misrepresentation ‘under the color of law' for it may be correctly inferred that she was following mandates set by ‘DHS' which is a governmental agency.” Id. ¶ 28. To the extent that these allegations are intended to address the “compulsion test” theory of state action, the complaint fails to meet the test because it simply does not identify what rules or other actions by a governmental entity required the defendants to make any allegedly unconstitutional decisions regarding the plaintiff's housing.

2. Close Nexus

As to the “close nexus test,” Brock alleges that “‘DEFs 2 & 3' willfully, under contract maintain[] and manage[] unit residences that are wholly subsidized, paid for, by [the City] i.e. the state.” FAC ¶ 12. He adds that “‘DEFs 2 & 3' willfully participate[] in joint activity with [the] state, [the City], who pays ‘DEFs 2 & 3', under contract, to maintain and manage ‘emergency shelters' that [the City] pays hotel and residential properties to rent for its, [the City's], downtrodden citizenry.” Id. ¶ 13.

Once again, Brock has not pleaded facts sufficient to support a theory of state action on the basis of a close nexus or extensive entwinement between the ACACIA defendants or the SUS defendants and the government. The mere receipt of governmental assistance “is not sufficient to transform that private actor's conduct into state action for § 1983 purposes.” Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020). Thus, the existence of contracting arrangements between the City and State government(s) and the defendants cannot be the basis finding state action because “[a]cts of . . . private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts.” Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982). As the Second Circuit has noted, “[i]t is not enough . . . for a plaintiff to plead state involvement in some activity of the institution alleged to have inflicted injury upon plaintiff; rather, the plaintiff must allege that the state was involved with the activity that caused the injury giving rise to the action.” Sybalski, 546 F.3d at 257-258 (citation and punctuation omitted). Any allegations as to this issue in the amended complaint are conclusory and do not show the specific nexus between a governmental actor and the harms that plaintiff allegedly suffered.

3. Public Function

As to the “public function” test, Brock alleges that “the state has delegated a public function to the entity.” FAC ¶ 14. Also, referring to the Order to Amend, Brock alleges that while “[t]he court is correct that providing Public Housing ‘is not' a[n] inherently ‘public function'[;] providing ‘emergency shelters' to the downtrodden, disenfranchised, homeless citizenry is a ‘public function' which [the City of New York] has, in fact and deed, delegated to ‘DEFs 2 & 3.'” Id.

The Supreme Court has held that “the exercise by a private entity of powers traditionally exclusively reserved to the State” constitutes state action. Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974); accord Manhattan Cmty. Access Corp. v. Halleck, 139 S.Ct. 1921, 1931 (2019) (“as the Court has long held, the fact that the government licenses, contracts with, or grants a monopoly to a private entity does not convert the private entity into a state actor-unless the private entity is performing a traditional, exclusive public function.”). The “public function” test, however, is “quite narrow.” Forbes v. City of New York, 2008 WL 3539936, at *4 (S.D.N.Y. Aug. 12, 2008). Emblematic cases involve a private party's wide displacement of a responsibility traditionally and exclusively relegated to government, such as medical care in a prison. See, e.g., West, 487 U.S. at 56 (the state contracting out prison medical care to a private doctor does not eliminate the public function of providing prison medical care as a state act); Marsh v. State of Ala., 326 U.S. 501, 506 (1946) (a “company town” occupies all of that town's public functions, despite its private ownership). The instant case does not qualify as such a circumstance because “the provision of food and shelter to the homeless is hardly an exclusive prerogative of the State.” Reaves v. Dep't of Veterans Affs., 2009 WL 35074, at *3 (E.D.N.Y. Jan. 6, 2009) (citation and punctuation omitted). Courts have ruled similarly on multiple occasions. See, e.g., Toliver v. City of New York, 2020 WL 883271, at *4 (S.D.N.Y. Feb. 21, 2020) (private not-for-profit acting as a “short-term housing provider . . . does not qualify as state action because it has not traditionally been the exclusive prerogative of the state.”); Young v. Halle Hous. Assocs., L.P., 152 F.Supp.2d 355, 365 (S.D.N.Y. 2001) (“[T]he provision of housing, for the poor or for anyone else, has never been the exclusive preserve for the state, but has been left to a regulated, and occasionally subsidized, private marketplace.”). Brock's characterization of the services provided by these defendants as the provision of “emergency” shelter does not alter his inability to show these services are the “traditional and exclusive” responsibility of government.

The Amended Complaint alleges that “because ‘all' defendants are operating under the aegis of [the City of New York] and because [presumably, defendants Daniel Reyes and Tatiana Cave] stated that they were operating under the aegis of ‘DHS[,'] which is a governmental agency, they were ‘all', severally and jointly, operating ‘under the color of law.'” FAC ¶ 25. This assertion does not meet any pleading requirement because it “is merely a legal conclusion that must be disregarded under Iqbal, 129 S.Ct. at 1949-50.” Khanukayev v. Times Square All., 2010 WL 2000552, at *2 (S.D.N.Y. May 20, 2010), adopted, 2010 WL 2836818 (S.D.N.Y. July 7, 2010).

Because the allegations regarding the conduct of the SUS defendants or the ACACIA defendants cannot be said to be “‘fairly attributable' to the state,” the claims should be dismissed. See Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)).

B. The Amended Complaint Fails to Plead a Fair Housing Act Claim

To the extent that we can construe the Amended Complaint as raising a claim pursuant to the Fair Housing Act, 42 U.S.C. § 3601, et seq. (“FHA”), its claims of discrimination in housing mirror the allegations in the original complaint, compare Comp. at 5-6 with FAC ¶¶ 23-25, 27, 35, 37, 72, as do its allegations of retaliation, compare Comp. at 7 with FAC ¶ 58. Because these claims are not substantively different, they fail for the reasons previously stated in the Order to Amend with regard to the original complaint: namely, “being homeless is not a protected characteristic under the FHA,” see Order to Amend at 7; and both the discrimination and the potential retaliation claims rely “exclusively on legal conclusions and ‘unadorned, the-defendant-unlawfully-harmed-me accusation[s],'” see id. at 7 (quoting Iqbal, 556 U.S. at 678).

C. Supplemental Jurisdiction

To the extent the Amended Complaint has alleged any claims under state law, the Court should decline to exercise supplemental jurisdiction over these claims.

The Court has jurisdiction over Brock's federal claims pursuant to 28 U.S.C. § 1331. But because Brock has not pleaded diversity of citizenship pursuant to 28 U.S.C. § 1332, the Court's authority to hear any possible state law claims here would be premised only on its supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a). Section 1367(c), however, provides that a district court may “decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district court has dismissed all claims over which it has original jurisdiction.”

On this point, the Supreme Court has noted that

in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine- judicial economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the remaining state-law claims.

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); accord Delaney v. Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014) (“In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well.”).

Given the early stage of this case, exercise of jurisdiction over any remaining state claims should be declined.

D. Leave To Amend

Inasmuch as plaintiff was previously granted leave to amend his complaint to articulate the existence of state action and a viable theory under the FHA, see Order to Amend at 6-7, leave to amend should not again be granted. See generally Roache v. Fischer, 2019 WL 6827296, at *5 n. 12 (N.D.N.Y. Dec. 13, 2019) (“an opportunity to amend is not required where the plaintiff has already been afforded the opportunity to amend”). This conclusion is further supported by the fact that Brock has unduly delayed the resolution of this case, having ignored court Orders intended to advance this case. See, e.g., Mar. 13 Order; Apr. 19 Order. Finally, the Court has already found that based on his status as a serial litigant, “Plaintiff was or should already have been aware of federal pleading requirements when he filed this complaint.” Order to Amend, at 10.

Conclusion

For the reasons set forth above, the SUS defendants' motion to dismiss (Docket # 61) and the ACACIA defendants' motion for judgment on the pleadings (Docket # 68) should be granted and the case should be dismissed.

PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Gardephe. 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 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).