Opinion
20cv5665 (GBD) (DF)
08-30-2021
TYRONE H. MASSEY, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.
REPORT AND RECOMMENDATION
DEBRA FREEMAN, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE GEORGE B. DANIELS, U.S.D.J.:
Pro se plaintiff Tyrone H. Massey (“Plaintiff”), a pre-trial detainee at the West Facility on Rikers Island, has brought this civil rights action under 42 U.S.C. § 1983, alleging that his constitutional rights were violated by defendants New York City Department of Corrections (“NYC DOC”), City of New York (the “City”); Officer Palmenteri (“Palmenteri”); Captain John Doe and Corrections Officer John Doe (together, the “John Doe Defendants”); and psychologist Dr. Ho (“Ho”) (all, collectively, “Defendants”), while he was detained at the
When Plaintiff filed his Complaint, he was a pretrial detainee at the Mid-Hudson Psychiatric Facility. (See Complaint, dated July 7, 2020 (“Compl.”) (Dkt. 2), at ECF 2 (with the “ECF” prefix referring to the page number affixed to the document by the Court's “Electronic Case Filing” system).) It appears that Plaintiff was later transferred to the Manhattan Detention Center (see Dkt. 14) and is now at the West Facility on Riker's Island (see Dkt. 24).
Although Plaintiff also originally named NYC DOC as a defendant (see Compl., at ECF 1), the Honorable George B. Daniels, U.S.D.J., sua sponte dismissed Plaintiff's claim against NYC DOC on August 13, 2020, on the ground that, under the New York City Charter, an agency of the City is not an entity that can be sued. (See Order of Service, dated Aug. 13, 2020 (“8/13/20 Order”) (Dkt. 8), at 2 (citing N.Y. City Charter ch. 17, § 396).) Although the case caption has not been modified on the Court's Docket, this Court has altered the caption, above, to reflect NYC DOC's dismissal from the action.
This Court cannot discern, from the limited materials before it, the first names of either defendant Palmenteri or defendant Ho. In addition, this Court notes that, although Plaintiff identified Ho in the Complaint as a psychologist who worked at “R.H.U.” on Riker's Island (see Compl., at ECF 4), the City has since indicated that Ho is “[n]ot an employee of [NYC DOC]” (Dkt. 13 (waiver of service returned unexecuted as to defendant Ho)). It is unclear what agency, if any, is Ho's employer.
George R. Vierno Center (“G.R.V.C.”) on Rikers Island. Before this Court for a report and recommendation is the motion, filed by the City and Palmenteri, to dismiss Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. 18.) For the reasons discussed below, I respectfully recommend that the motion to dismiss be granted. Further, as the reasons for dismissal would necessarily apply to Plaintiff's claims against the remaining defendants, I recommend that the action be dismissed in its entirety.
BACKGROUND
A. Factual Background
The Complaint sets forth the following facts, which are assumed true for the purpose of this motion to dismiss. See Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012).
On May 5, 2020, a fire allegedly broke out in Plaintiff's cell at the West Facility on Riker's Island at approximately 12:30 p.m., filling the cell with smoke. (Compl., at ECF 5.) Despite Plaintiff's pleas to vacate his cell, Palmenteri and the John Doe Defendants allegedly denied Plaintiff medical attention and left him in his cell as the fire continued. (See id.) Plaintiff allegedly then begged Ho, a psychologist who had been observing him at the time, to provide him with medical care (see id., at ECF 6); Ho, however, allegedly left the housing area without assisting Plaintiff (see id.). Plaintiff alleges that he then remained in his cell for 10 hours before receiving any medical attention. (Id.) As a result of this incident, Plaintiff allegedly experienced breathing problems, as well as chest pain, headaches, blurry vision, eye pain, anxiety, and post-traumatic stress. (See id., at ECF 7.) He also claims to have needed ongoing psychiatric treatment as a result of this incident. (See id.)
B. Procedural History
1. Plaintiff's Complaint and Defendants' Motion To Dismiss
Plaintiff filed his pro se Complaint on July 7, 2020, alleging that the May 5, 2020 incident in his cell was violative of his constitutional rights and indicative of NYC DOC's alleged pattern of deliberate indifference to his and other inmates' medical needs. (See Compl., at ECF 5-6.) Plaintiff sought both compensatory and punitive damages, as well as the issuance of a court order that would require NYC DOC personnel to follow the proper policies and procedures for providing medical care to inmates. (See id., at ECF 7.) Notably, Plaintiff stated in the Complaint: “I have not written any grievance because [NYC DOC] personnel intimidates and retaliates [against] myself and inmates when we make complaints[, ] putting me in fear [for] my life.” (Id., at ECF 6.)
Under the so-called “prison mailbox rule, ” a pro se prisoner's papers are deemed filed when they are handed over to prison officials for forwarding to the Court. See Houston v. Lack, 487 U.S. 266, 270 (1988); Walker v. Jastremski, 430 F.3d 560, 563 (2d Cir. 2005) (noting that the “prison mailbox rule” applies “to the filing of civil complaints” by pro se litigants). In the absence of evidence as to when Plaintiff's Complaint was submitted for mailing, this Court deems it filed as of July 7, 2020, the date when it was apparently signed. See Lehal v. Cent. Falls Det. Facility Corp., 13cv3923 (DF), 2019 WL 1447261, at *7 n.11, 19 (S.D.N.Y. Mar. 15, 2019) (inferring that pro se prisoner gave his complaint to prison officials for mailing on the date it was signed).
Soon after the Complaint was filed, Judge Daniels granted Plaintiff's request to proceed in forma pauperis. (Dkt. 4.) Then, on August 13, 2020, Judge Daniels instructed the New York City Law Department (the “Law Department”), as the attorney for and agent of NYC DOC, to ascertain the identities, badge numbers, and addresses of the John Doe Defendants and to provide that information to Plaintiff, pursuant to Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997). (See 8/13/20 Order, at 2.) In the same Order, Judge Daniels instructed Plaintiff to amend his Complaint within 30 days of receiving any Doe-related information. (Id., at 3.)
Before the Law Department satisfied its obligations under Valentin, defendants City of New York and Palmenteri (the “Moving Defendants”) filed the instant motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. 18.) In their supporting memorandum of law, the Moving Defendants raised two arguments. First, they contended that because, on the face of the Complaint, Plaintiff admitted that he failed to exhaust all administrative remedies via the inmate grievance procedure, as required under the Prison Litigation Reform Act (“PLRA”), he should be held barred from pursuing relief in federal court. (See Memorandum of Law in Support of Defendants' Motion to Dismiss the Complaint Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, dated Jan. 11, 2021 (“Defs. Mem.”) (Dkt. 19), at 4-6.) Second, they argued that Plaintiff's lack of exhaustion could not be excused because Plaintiff's allegations were insufficient to suggest that administrative remedies were unavailable to him. (See id., at 6-9.)
In light of the pending motion to dismiss, the Law Department requested that it be relieved of its obligation to ascertain the identities, badges, and addresses of the John Doe Defendants, or, alternatively, that it be granted a 60-day extension of time from the then-set deadline. (See Dkt. 21.) On March 24, 2021, this Court, by memo endorsement, ordered that the Law Department's time to identify the John Doe Defendants would be extended to 60 days after the resolution of the motion to dismiss, should it be denied. (See Dkt. 25.)
2. Plaintiff's March 7, 2021 Letter to This Court and the Subsequent Stay of This Action.
On March 7, 2021, Plaintiff submitted a letter in this action, as well as in several other cases that he had brought in this District, seeking an extension of time to file his opposition briefing, for the appointment of pro bono counsel, and for injunctive relief. (See Plaintiff's Letter Motion Request for Extension of Time, Injunction Order, Appoint[ment] of Pro Bono Attorney, dated Mar. 7, 2021 (“Pl. 3/7/21 Ltr.”) (Dkt. 23).) As relevant to the motion now before this Court, the letter stated:
Specifically, Plaintiff filed the same letter in each of the following cases: Massey v. Smart, et. al., No. 20cv09719 (AJN) (OTW) (S.D.N.Y.) (Dkt. 18); Massey v. Sapp, et. al., No. 19cv11902 (GBD) (KNF) (S.D.N.Y.) (Dkt. 57); Massey v. City of New York, et. al., No. 20cv07617 (ALC) (S.D.N.Y.) (Dkt. 19); Massey v. City of New York, et. al., No. 20cv07622 (LTS) (RWL) (S.D.N.Y.) (Dkt. 23); Massey v. Holder, et. al., No. 20cv08067 (RA) (OTW) (S.D.N.Y.) (Dkt. 18); Massey v. Hernandez, et. al., No. 20cv08633 (GHW) (S.D.N.Y.) (Dkt. 13);
I am currently undergoing a court order[ed] 730 evaluation [and am] struggling with mental health issues that [are] affecting my ability to appropriately focus and organize myself to litigate my lawsuits. I have over 10 active lawsuits and [am] currently in defendants['] custody being subjected to federal criminal acts that are retaliatory in nature due to my extensive federal litigation. I have attempted suicide several times this year. There was a fire incident in my housing area on Jan 27, 2021[, ] that has caused damage to my law work. I have made countless 311 complaints, called 911 countless times[, ] and filed countless grievances/complaints to no avail. The 311/grievance procedure[] of NYC DOC operates as a simple dead end[.] 99% of my grievances are returned and considered “staff complaints [that] are not subject[ ] to [the] grievance process.” All of my 311 complaints are only submitted to the staff/employees of NYC DOC that are violating me. No. one from [the] NYC DOC Investigation Division speaks to me. I have begged NYC DOC officials/administrator[s][, ] including NYC DOC Commissioner Cynthia Brann[, ] to intervene and put in writing an executive order directing NYC DOC employees to afford me all my minimum standard[ ] services via handheld and/or body camera[s, ] and [to] conduct all escorting and search procedures via body or handheld camera[.] [This would] . . . deter NYC DOC employees from denying me requested and required mental/medical services . . . Such denial has subjected me to federal criminal acts that ha[ve] caused my mental and physical well[-]being to deteriorate.(Id., at ECF 1-2.)
In response to this letter - particularly to Plaintiff's statement that he was undergoing a court-ordered mental fitness evaluation in his pending state court criminal case pursuant to Article 730 of the New York State Criminal Procedure Law - this Court issued an Order on Massey v. Bolanos, et. al., No. 20cv08592 (LGS) (RWL) (S.D.N.Y.) (Dkt. 22); and Massey v. Iosif Shpits, No. 20cv08828 (LGS) (RWL) (S.D.N.Y.) (Dkt. 26).
April 26, 2021, staying all proceedings in this action, including any remaining briefing on the motion to dismiss, pending further Order of the Court. (Dkt. 27.) This Court also directed Defendants to monitor any developments regarding Plaintiff's evaluation and to submit timely status reports. (See id.)
3. The Lifting of the Stay and Revival of the Previously Pending Motion to Dismiss
On June 18, 2021, the Moving Defendants informed this Court that Plaintiff's 730 Evaluation had been completed and that he had been deemed “fit to proceed” in the pending state court criminal case. (Dkt. 31, at 1.) As a result, the Moving Defendants requested that this Court lift the stay of these proceedings, and they also sought to “renew” their motion to dismiss, which was still pending on the Docket. (See id.)
By Order dated June 21, 2021, this Court lifted the stay and instructed the Moving Defendants to serve Plaintiff with an additional copy of their motion to dismiss and their accompanying papers, due to Plaintiff's representation that his “paperwork [had been] destroyed” by another “fire incident.” (See Order, dated June 21, 2021 (Dkt. 32); Letter to the Court from Plaintiff, dated May 21, 2021 (Dkt. 30).) Further, in light of the arguments raised in the motion to dismiss, this Court instructed Plaintiff to focus his opposition on the specific reasons why he had concededly failed to exhaust his administrative remedies. (See id., at 2.)
In its June 21 Order, this Court denied, without prejudice, Plaintiff's request that this Court seek pro bono counsel to represent him in this action, noting that the pending motion to dismiss was “based on a narrow issue (lack of exhaustion), as to which the law is well established, ” and reasoning that “Plaintiff should be able to explain to the Court the particular reasons why he apparently took no steps to exhaust the claim he raises in this case.” (Dkt. 32 ¶ 5.)
In a letter dated July 21, 2021, Plaintiff opposed the motion to dismiss and stated, in relevant part, that he was:
Although Plaintiff's opposition letter was dated July 21, 2021, it was not uploaded onto the ECF system until August 13, 2021. (See Dkt. 34.) To account for the two-week delay, this Court set the Moving Defendants' reply deadline for August 25, 2021. (Dkt. 36.)
providing for the [C]ourt numerous grievances [he had] filed that were returned to [him] as ‘staff complaints - non-grievable.' See Exhibits A-Y. No. matter what grievances [Plaintiff] file[d, ] they [were] returned to [him] as non[-]grievable[, ] demonstrating and establishing [his] argument that the grievance process of the NYC [DOC] ‘operates as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates[, ]' [Plaintiff] included.(Plaintiff's [Opposition to] Defendants' Motion to Dismiss, dated July 21, 2021 (“Pl. Opp.”) (Dkt. 34), at ECF 4.)
In their reply brief, filed on August 25, 2021, the Moving Defendants contended that dismissal of the Complaint remained appropriate here because (1) it was still undisputed that Plaintiff failed to file a grievance concerning the May 5, 2020 incident in his cell; (2) Plaintiff was incorrect in arguing that it was unnecessary for him to file a grievance before commencing this action, even if other unrelated grievances that he had previously submitted were returned to him as non-grievable; and (3) the grievances that Plaintiff attached as exhibits to his opposition letter ultimately undermined his contention that administrative remedies were “unavailable” to him, as those same grievances showed that he “was well aware of both the availability of the grievance process and his obligation to abide by it.” (Reply Memorandum of Law in Further Support of Defendants' Motion to Dismiss the Complaint Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, dated Aug. 25, 2021 (“Defs. Reply Mem.”) (Dkt. 38), at 1-4.)
DISCUSSION
I. APPLICABLE LEGAL STANDARDS
A. Rule 12(b)(6)
A complaint may be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure where it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. (12)(b)(6). In deciding a motion to dismiss, the Court must “accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007); accord Jaghory v. New York State Dep't of Ed., 131 F.3d 326, 329 (2d Cir. 1997). The issue is not whether the plaintiff will ultimately prevail, but whether his claim, as pleaded, is sufficient to afford him the opportunity to proceed on the evidence. Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998).
Thus, on a motion to dismiss, the court's function is “not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient.” Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir. 1991) (citing Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985)). At the same time, “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to defeat a motion to dismiss.” Achtman v. Kirby, McInerney, & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (internal alteration and citation omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 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.” Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010) (internal alteration omitted) (quoting Iqbal, 556 U.S. at 676), cert. denied, 562 U.S. 1168 (2011).
It is well established that “a complaint filed by a plaintiff pro se is to be construed ‘liberally to raise the strongest arguments [it] suggest[s].'” McCray v. Lee, 963 F.3d 110, 116-17 (2d Cir. 2020) (quoting Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013)); see also Hughes v. Rowe, 449 U.S. 5, 9-10 (1980) (noting that a pro se party's pleadings must be liberally construed in his favor and are held to a less stringent standard than the pleadings drafted by lawyers (citations omitted)). As such, while a court is generally constrained to look only to the pleadings, see Fed. R. Civ. P. 12(b); Calcutti v. SBU, Inc., 273 F.Supp.2d 488, 492 (S.D.N.Y. 2003), “the mandate to read the papers of pro se litigants generously makes it appropriate to consider [a pro se] plaintiff's additional materials, such as his opposition memorandum” to supplement the allegations in the complaint, Burgess v. Goord, No. 98cv2077 (SAS), 1999 WL 33458, at *1 n.1 (S.D.N.Y. Jan 26, 1999) (internal quotation marks and citations omitted); see also, e.g., Samuels v. Fischer, 168 F.Supp.3d 625, 645 n.11 (S.D.N.Y. 2016) (finding that, in resolving a motion to dismiss, it was “appropriate to consider allegations contained in [p]laintiff's [o]pposition”); Goldson v. Kral, Clerkin, Redmond, Ryan, Perry & Van Etten, LLP, No. 13cv2737 (GBD) (FM), 2014 WL 4061157, at *3 (S.D.N.Y. July 11, 2014) (amended report and recommendation) (“[w]hen a plaintiff is proceeding pro se, the [c]ourt also may rely on any opposition papers in assessing the legal sufficiency of the plaintiff's claims”), report and recommendation adopted, 2014 WL 3974584 (Aug. 13, 2014); Sommersett v. Cty. of N.Y., No. 09cv5916 (LTS) (KNF), 2011 WL 2565301, at *3 (S.D.N.Y. June 28, 2011) (“[W]here a pro se plaintiff has submitted other papers to the [c]ourt, such as legal memoranda, the [c]ourt may consider statements in such papers to supplement or clarify the plaintiff's pleaded allegations.”).
Although courts have not followed this approach in every case, see, e.g., Brunson v. Duffy, No. 12cv9465 (KBF), 2015 U.S. Dist. LEXIS 29015, at *4 (S.D.N.Y. Mar. 6, 2015) (citing cases where courts declined to consider new facts included in pro se opposition), it is certainly true that the papers submitted by a pro se plaintiff in opposition to a Rule 12(b)(6) motion may offer clarification or context that can aid the Court in understanding the plaintiff's pleading and in affording it a liberal construction, see id., at n.4 (noting that “a district court needs to assess each case on an individual basis”). Applying the pleading rules permissively is particularly appropriate when, as here, a pro se plaintiff alleges civil rights violations. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Moreover, where the addition of allegations contained in opposition papers would be sufficient to enable an otherwise deficient pro se pleading to survive a Rule 12(b)(6) motion, the Court may deem the pleading amended to include the additional allegations. Johnson v. Wright, 234 F.Supp.2d 352, 356 (S.D.N.Y. 2002).
B. Exhaustion of Claims Under the PLRA
1. The Statutory Exhaustion Requirement
The PLRA provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “Exhaustion is ‘mandatory' and ‘applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, '” or allege excessive force, the denial of adequate medical care, or some other wrong. Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009) (quoting Porter v. Nussle, 534 U.S. 516, 524 (2002)); see also Ross v. Blake, 578 U.S. 1174, 1853 (2016) (stating that the mandatory language of 42 U.S.C. § 1997e(a) forecloses judicial discretion to craft exceptions to the exhaustion requirement); Oates v. Cty. of N.Y., No. 02cv5960 (GEL), 2004 WL 1752832, at *2 (S.D.N.Y. Aug. 4, 2004) (“It is well established that complaints of inadequate medical care in prison are claims regarding ‘prison conditions' that are squarely covered by the PLRA.”).
In addition, the PLRA requires “proper exhaustion” of administrative remedies, “meaning exhaustion in ‘compliance with an agency's deadlines and other critical procedural rules.'” Lucente v. County of Suffolk, 980 F.3d 284, 311 (2d Cir. 2020) (quoting Woodford v. Ngo, 548 U.S. 81, 90-91 (2006)). In other words, proper exhaustion means “using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).” Woodford, 548 U.S. at 90 (emphasis in original); see also Lowman v. Baird, No. 16cv6518 (VSB), 2017 WL 6403519, at *5 (S.D.N.Y. Dec. 14, 2017) (“The PLRA requires ‘proper exhaustion,' which obligates prisoners to ‘complete the administrative review process in accordance with the applicable procedural rules - rules that are defined not by the PLRA, but by the prison grievance process itself.'” (quoting Jones v. Bock, 549 U.S. 199, 218 (2007))).
Failure to exhaust administrative remedies, under the PLRA, is an affirmative defense. See Johnson v. Rowley, 569 F.3d 40, 45 (2d Cir. 2009). “Consequently, a plaintiff need not plead administrative exhaustion in his complaint.” Hickman v. Cty. of N.Y., No. 20cv4699 (RA) (OTW), 2021 WL 3604786, at *2 (S.D.N.Y. Aug. 12, 2021). As is the case with other affirmative defenses, however, “dismissal may be granted at the pleading stage for failure to exhaust if the defense ‘appears on the face of the complaint.'” Antrobus v. Warden of GRVC, No. 11cv5128 (JMF), 2012 WL 1900542, at *2 (S.D.N.Y. May 25, 2012) (quoting Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1988)); accord McArdle v. Ponte, No. 17cv2806, 2018 WL 5045337, at *2-3 (S.D.N.Y. Oct. 17, 2018). Thus, “courts in this District routinely grant motions to dismiss where a plaintiff's non-exhaustion is clear from the face of the complaint.” Hickman, 2021 WL 3604786, at *2 (compiling cases); see Rivera v. Anna M. Cross Ctr., No. 10cv8696 (RJH), 2012 WL 383941, at *2 (S.D.N.Y. Feb. 7, 2012) (“If non[-]exhaustion is clear, a motion to dismiss should be granted.”); Price v. Cty. of N.Y., No. 11cv6170 (TPG), 2012 WL 3798227, at *3 (S.D.N.Y. Aug. 30, 2012) (dismissing action under Rule 12(b)(6) where it was “clear from the face of the complaint that plaintiff [an inmate formerly housed in a facility on Rikers Island] ha[d] failed to exhaust the administrative remedies available to him”).
2. NYC DOC's Exhaustion Procedures
Pursuant to Directive 3376R-A, NYC DOC “maintains a robust administrative grievance procedure - the Inmate Grievance and Request Program (the “IGRP”) - for inmates [and detainees] at all of its facilities, ” including Rikers Island. Leneau v. Cty. of N.Y., No. 16cv0893 (RA), 2018 WL 583120, at *3 (S.D.N.Y. Jan. 26, 2018); see, e.g., Hickman, 2021 WL 3604786, at *3 (“At Rikers Island, grievance procedures are governed by the [IGRP].”); Pizarro v. Ponte, No. 17cv4412 (LGS), 2019 WL 568875, at *4 (S.D.N.Y. Feb. 11, 2019) (“As a Rikers Island detainee during the relevant period, [the p]laintiff's grievance is governed by the [IGRP].” (internal quotation marks and citation omitted)); Girodes v. Cty. of N.Y., No. 17cv6789 (RWS), 2018 WL 3597519, at *3 (S.D.N.Y. July 26, 2018) (same).
This Court takes judicial notice of the IGRP. See Sanders v. Cty. of N.Y., No. 16cv7246 (PGG), 2018 WL 3117508, at *4 n.1 (S.D.N.Y. June 25, 2018) (“It is a common practice in this District to take judicial notice of the version of the IGRP in effect at the time of the events giving rise to [a prisoner's] claim.” (internal quotation marks omitted)). As Directive 3376R-A was in effect on May 5, 2020, it is the governing grievance procedure in this action. See https://www1.nyc.gov/assets/doc/downloads/directives/Directive3376R-A.pdf (accessed Aug. 26, 2021).
The IGRP applies to “[a]ny inmate who is directly and personally affected by an issue, condition, practice, service, or lack of an accommodation with regard to any issue that may arise in connection with their incarceration or action relating to their confinement.” IGRP § I. “Claims relating to access to medical care filed against corrections officers fall within the IGRP's purview.” Leneau, 2018 WL 583120, at *3.
As to procedure, the IGRP mandates that an inmate must first either file a grievance, using the Form 7101R (“OCGS Statement Form”), or call 311 to file a complaint. IGRP §§ V(F), (H). Within seven business days, the Grievance Coordinator will assess the inmate's submission and determine whether it should be dismissed and closed, referred to a different entity, or investigated further. IGRP § VI(A)(1). Upon the close of a further investigation, the Grievance Coordinator will meet with the inmate to propose a resolution. Id. If the inmate is not satisfied with the proposed resolution of the grievance, he can then appeal to the Commanding Officer. Id. § VII(A). If the inmate is dissatisfied with the decision of the Commanding Officer, he may then submit an appeal to the Division Chief. Id. § VIII(A)(1-2). Lastly, if the inmate is dissatisfied with the decision of the Division Chief, he may appeal to the Central Office Review Committee (“CORC”). Id. § IX(A). The CORC's disposition constitutes the final decision on the grievance. Id.
The IGRP further provides that, “[a]n inmate must use the grievance process to obtain a final response from the Department regarding any grievance[.] Id. § V(K) (emphasis added). Significantly, even if an inmate predicts that his grievance will be denied, that “prediction[, ] . . . even if wholly reasonable, does not warrant depriving the prison administration of the opportunity to address the claim in the first instance, a paramount goal of the PLRA.” Johnson v. Killian, No. 07cv6641 (LTS) (DFE), 2009 WL 1066248, at *5 (S.D.N.Y. Apr. 21, 2009); see, e.g., Dixon v. Laboriel, No. 01cv3632 (LAP), 2010 WL 2365860, at *4 (S.D.N.Y. June 10, 2010) (“the alleged ineffectiveness of the administrative remedies that are available does not absolve a prisoner of his obligation to exhaust such remedies.” (internal quotation marks and citation omitted)), aff'd, 433 Fed.Appx. 48 (2d Cir. 2011) (Summary Order). Moreover, courts have noted that the IGRP provides for an appeals process when an inmate does not receive a timely response to his grievance. See, e.g., Barlow v. Mayor of N.Y., No. 19-CV-6786 (KAM) (JO), 2021 WL 3793773, at *5 (E.D.N.Y. Aug. 26, 2021) (noting that, under Directive 3376R-A, the IGRP “sets forth the procedure to follow” when prison officials do not respond to inmates' grievances); see generally IGRP § V(K). Indeed, “[i]t is well[]established that, even if an inmate does not receive a response to his grievance, he fails to exhaust administrative remedies if he does not avail himself of the available appeals process.” Martinez v. Schriro, No. 14cv3965 (KMW) (RLE), 2017 WL 87049, at *2 (S.D.N.Y. Jan. 9, 2017); see also Tyler v. Argo, No. 14cv2049 (CM) (DF), 2014 WL 5374248, at *4 (S.D.N.Y. Oct. 10, 2014).
Lastly, it is also well settled that “proper exhaustion” requires an inmate to not only file an initial grievance, but also to exhaust his claims through each level of the specified grievance process. See Graham v. Cochran, No. 96cv6166 (LTS) (RLE), 2002 WL 31132874, at *6 (S.D.N.Y. Sept. 25, 2002) (“Courts have interpreted the PLRA to require complete exhaustion in accordance with institutional procedures.”); see, e.g., Banks v. Mental Health Clinicians, No. 11cv7848 (LAP), 2012 WL 6201259, at *3-4 (S.D.N.Y. Dec. 11, 2012) (granting defendants' motion to dismiss, with prejudice, where plaintiff, an inmate at Rikers Island, filed a grievance but failed to appeal it and therefore did not exhaust the administrative grievance process as required by the PLRA).
3. Excusal of Lack of Exhaustion When Administrative Remedies Are Unavailable
Despite the exhaustion requirement, a plaintiffs failure to exhaust may be “excused” if the Court finds that administrative remedies were “unavailable” to him. See Girodes v. Cty. Of N.Y., No. 17cv6789 (RWS), 2018 WL 3597519, at *4 (S.D.N.Y. July 26, 2018). As the Supreme Court stated in Ross v. Blake, “[a]n inmate . . . must exhaust available remedies, but need not exhaust unavailable ones.” 136 S.Ct. 1850, 1858 (2016). The Court, in Ross, identified three potential circumstances where administrative remedies may be unavailable:
First, . . . an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates. . . . Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it. . . . And finally, the same is true when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.Ross, 136 S.Ct. at 1859-60. The Second Circuit has since reasoned that “[t]he test for deciding whether the ordinary grievance procedures were available must be an objective one: that is, would ‘a similarly situated individual of ordinary firmness' have deemed them available.” Lucente, 980 F.3d at 311-12 (quoting Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004) (abrogated on other grounds by Ross, 136 S.Ct. at 1855)).
Prior to the Supreme Court's decision in Ross, district courts in this Circuit asked an additional question in assessing whether to grant a motion to dismiss for failure to exhaust, the question being “whether special circumstances ha[d] been plausibly alleged that justified] the prisoner's failure to comply with administrative procedural requirements.” Hemphill, 380 F.3d at 686. In Ross, however, the Supreme Court rejected this “special circumstances” exception and reaffirmed the mandatory nature of exhaustion of administrative remedies, holding that “the PLRA's text suggests no limits on an inmate's obligation to exhaust - irrespective of any ‘special circumstances.'” Ross, 136 S.Ct. at 1856.
II. THE MOTION TO DISMISS
As noted above, the Moving Defendants take the position that Plaintiff's Complaint must be dismissed because Plaintiff admittedly failed to exhaust his administrative remedies and his failure cannot be excused. (See generally Defs. Mem; Defs. Reply Mem.) This position is well supported and persuasive.
A. Plaintiff's Failure To Exhaust Administrative Remedies Is Clear From the Face of His Complaint.
Plaintiff has expressly stated in his Complaint that he did not file any grievance related to the May 5, 2020 incident. (See Compl., at ECF 6 (“I have not written any grievance”).) Furthermore, although this Court has considered the additional factual allegations set forth in Plaintiff's other pro se submissions, including his March 7 letter and his opposition to the motion to dismiss, see Sommersett, 2011 WL 2565301, at *3, this Court notes that nowhere in those submissions has Plaintiff suggested that, in relation to the subject incident, he followed any of the steps set forth in NYC DOC's IGRP. Indeed, although Plaintiff indicated in the March 7 letter that he had attempted to alert officials to unlawful conditions by making numerous 311 and 911 complaints and by “beg[ging] NYC DOC officials/administrator[s][, ] including NYC DOC Commissioner Cynthia Brann[, ] to intervene” (Pl. 3/7/21 Ltr., at ECF 1), nothing in that statement, or in the remainder of the letter (an identical copy of which was filed in at least 10 pending lawsuits in this District), can be interpreted to mean that (1) Plaintiff made a 311 call to file a complaint in relation to the specific incident at hand, or (2) even if such a call was made, that Plaintiff proceeded to follow the full appeals procedure set forth in the IGRP, as required.
See Graham, 2002 WL 31132874, at *6 (the PLRA requires complete exhaustion through all levels of the grievance process).
This Court also notes that, although Plaintiff indicated in the March 7 letter that he had, at some undisclosed time and in some undisclosed manner, contacted NYC DOC Commissioner Cynthia Brann, that type of communication would not satisfy the PLRA's exhaustion requirements. See Timmons v. Schriro, No. 14cv6606 (RJS), 2015 WL 3901637, at *3 (S.D.N.Y. June 23, 2015) (“[T]he law is well-settled that informal means of communicating and pursuing a grievance, even with senior prison officials, are not sufficient under the PLRA.”); Muhammad v. Pico, No. 02cv1052 (AJP), 2003 WL 21792158, at *8 (S.D.N.Y. Aug. 5, 2003) (“District court decisions in this [C]ircuit have repeatedly held that complaint letters to the DOCS Commissioner or the facility Superintendent do not satisfy the PLRA's exhaustion requirements.”).
Thus, the Moving Defendants are correct that it is plain from the face of Plaintiff's Complaint (and his accompanying pro se submissions) that, with respect to his claim in this case, he did not exhaust his administrative remedies in accordance with the PLRA.
B. Plaintiff's Failure To Exhaust
Cannot Be Excused in This Case.
Liberally construing Plaintiff's pro se submissions, this Court finds that he has made two distinct arguments to excuse his conceded lack of exhaustion - (1) that he has been kept from using the IGRP process by a fear of retaliation, and (2) that the IGRP, in practice, operates as an effective “dead end.” With respect to his second argument, this Court understands Plaintiff to be contending, more specifically, that administrative remedies should be considered unavailable to him because the vast majority of his past grievances did not receive consideration, but, rather, were either ignored or returned to him with the notation that complaints seeking staff discipline (which he is apparently seeking here, at least in part) are non-grievable under the IGRP. For the reasons discussed below, this Court concludes that neither of Plaintiff's contentions can support the excusal of administrative exhaustion under Ross.
Starting with the allegations set forth in the Complaint, Plaintiff stated there that he did not file a grievance in relation to the May 5, 2020 incident because NYC DOC personnel had allegedly “intimidate[d] and retaliate[d]” against him and other inmates when they made complaints in the past. (Compl., at ECF 6.) Although the Supreme Court recognized, in Ross, that, when a prison official inhibits an inmate from utilizing an administrative process through specific threats or intimidation, that process can no longer be said to be “available, ” Ross, 136 S.Ct. at 1860 n.3 (internal quotation marks and citation omitted), here, Plaintiff has alleged nothing more than a “generalized fear of retaliation [that] is insufficient to excuse his failure to file a grievance, ” Little v. Mun. Corp. Cty. of N.Y., No. 12cv5851 (KMK), 2017 WL 1184326, at *11-12 (S.D.N.Y. Mar. 29, 2017) (granting motion to dismiss where, although plaintiff's complaint stated that he “did not exhaust [his] administrative remed[ies] [due to] a fear of retaliation from [DOC] officers, ” that statement merely constituted a “generalized fear of retaliation” that was “insufficient to excuse his failure to exhaust”); see Brown v. Napoli, 687 F.Supp.2d 295, 297-98 (W.D.N.Y. 2009) (finding the plaintiff failed to allege any facts to support his claimed fear of retaliation where complaint stated that the plaintiff did not file a grievance due to his “[f]ear for [his] personal safety and retaliation by correctional staff”); see also Hines v. Valhalla County Corr., No. 01cv6935 (SAS), 2002 WL 1822740, at *3 (S.D.N.Y. Aug. 8, 2002) (“If an inmate's allegation of a secondhand retaliatory threat was enough to allow the inmate to begin litigation without properly filing grievances, the PLRA's exhaustion requirement could be easily circumvented by all inmates. A general fear of retaliation is not an exception to the PLRA's exhaustion requirement.”) Indeed, Plaintiff's conclusory allegation that some unnamed NYC DOC personnel had, at some undetermined time, intimidated or retaliated against him and other unnamed inmates, in some unidentified manner, fails to serve as an adequate “basis for him to fear retaliation from filing a grievance relative to the present incident.” White v. Dishaw, No. 9:14-CV-0002 (GLS/DJS), 2017 WL 4325770, at *3 (N.D.N.Y. June 20, 2017) (the plaintiff's “prior experience filing grievances is not a well-founded basis” to excuse his failure to exhaust). Thus, Plaintiff's generalized fear of retaliation cannot adequately excuse his failure to exhaust.
Plaintiff's vague assertion in his March 7 letter that he had been “subjected to federal criminal acts that [were] retaliatory in nature due to [his] extensive federal litigation” (Pl. 3/7/21 Ltr., at 1-2), fares no better, as that allegation, even when liberally read, fails to set forth any specific threat or act of intimidation by NYC DOC personnel that could serve to justify Plaintiff's conceded failure to exhaust administrative remedies.
Although he has not framed his opposition in this way, this Court also notes that Plaintiff would not be able to overcome his failure to exhaust by arguing that Defendants should be estopped from asserting the affirmative defense of lack of exhaustion because, by intimidation or otherwise, they “prevented or inhibited [Plaintiff] from exhausting his remedies.” Antrobus, 2012 WL 1900542, at *2. Although the Second Circuit has previously held that “the affirmative defense of exhaustion is subject to estoppel, ” Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004), it later questioned whether the estoppel doctrine survived the Supreme Court's decision in Woodford v. Ngo, 548 U.S. 81 (2006), which held that the PLRA requires “proper exhaustion.” Amador v. Andrews, 655 F.3d 89, 102 (2d Cir. 2011) (“We have questioned whether, in light of Woodford, the doctrine[] of estoppel . . . survived.”) Further, as some courts have since observed, “[t]he Supreme Court's [2016] decision in Ross again put[] the availability of estoppel in doubt.” Salmon v. Bellinger, No. 9:14-CV-0827 (LEK/DJS), 2016 WL 44113382016 WL 4411338, at *5 (N.D.N.Y. July 5, 2016) (noting that the Supreme Court “made clear [in Ross] that the mandatory nature of the exhaustion required by the PLRA forecloses judicial discretion to craft exceptions”). In any event, Plaintiff has not alleged that any named defendant prevented or inhibited him from exhausting his administrative remedies in relation to the incident in question, see Gottesfeld v. Anderson, No. 18cv10836 (PGG), 2020 WL 1082590, at *8 (S.D.N.Y. Mar. 6, 2020), and his failure to allege Defendants' personal involvement forecloses the Court's application of the estoppel doctrine, see Evans v. Aramark Food, No. 14cv6469 (NSR), 2016 WL 1746060, at *3 (S.D.N.Y. Apr. 28, 2016) (“Where a plaintiff does not allege that a defendant was personally involved in the denial of grievance forms . . ., the defendant will not be estopped from raising the exhaustion defense.”); Rambert v. Mulkins, No. 11cv7421 (KPF), 2014 WL 2440747, at *12 (S.D.N.Y. May 30, 2014) (“Plaintiff has failed to allege that Defendants were in any way involved in the lack of grievance forms in the SHU . . . Because Plaintiff has failed to allege any facts demonstrating any personal involvement of Defendants, they are not estopped from asserting this defense.”).
Second, turning to the allegations set forth in Plaintiff's March 7 letter and his opposition to the motion to dismiss, Plaintiff now asserts that the IGRP operates as a mere “dead end” and is therefore an unavailable administrative remedy. (See Pl. 3/7/21 Ltr., at ECF 1 (“the 311/grievance procedures at NYC DOC operate[] as a simple dead end[;] 99% of my grievances are returned and considered “staff complaints” not subject to the grievance process.”); see also Pl. Opp., at ECF 4 (noting that Plaintiff had filed numerous grievances that were returned to him as “staff complaints - non-grievable”)). To the extent Plaintiff's past grievances were not considered because they sought staff discipline, this Court notes that it is true that, under the IGRP, requests for the removal, censure, discipline, or termination of a NYC DOC employee is not subject to the IGRP process. See IGRP § II(6). The Second Circuit recently acknowledged this in Taylor v. N.Y.C. Dep't of Corr., 849 Fed.Appx. 5, 9 (2d Cir. 2021) (Summary Order) (“It appears that the IGRP does not outline an appropriate mechanism for seeking a remedy of staff discipline.”). Yet, as explained in Taylor and discussed below, the fact that the IGRP does not provide a mechanism for seeking staff discipline does not absolve an inmate, like Plaintiff, from needing to exhaust administrative remedies when he seeks to allege a substantive issue in later litigation, such as the unconstitutional deprivation of medical care, because that type of issue is a grievable claim subject to the IGRP process. Moreover, as also explained by Taylor, the mere fact that an inmate may not have received responses to prior grievances is insufficient to excuse exhaustion.
In Taylor, the pro se plaintiff had alleged that he was given inadequate clothing in prison and that he experienced difficulty in accessing legal services. Id. at 6. Although the plaintiff claimed that he had filed “numerous grievances about these conditions, ” some of which went unanswered, it was undisputed that he did not appeal the denial of, or lack of response to, any of his grievances. See Id. at 6-7. In arguing that he was excused from exhaustion, the plaintiff contended that the prison's administrative remedies were unavailable to him because prison officials did not respond to his grievances. See id at 8. He also maintained that the PLRA did not require him to exhaust administrative remedies because he had sought a remedy that would have resulted in the prison having to impose staff discipline, which, according to the plaintiff, was a “non[-]grievable” issue. Id. The Second Circuit rejected both of these contentions.
To start, the Second Circuit held that “[t]he prison officials' failure to respond to some of [the plaintiff's] grievances did not render the IGRP administrative procedure unavailable.” Id. (citing Williams v. Priatno, 829 F.3d 118, 123-24 (2d Cir. 2016)). Given that the “the IGRP contemplates that prison officials might not always respond to inmates' grievances, ” and, thus, sets forth “the procedure to follow in such circumstances, ” the court held that, where the plaintiff knew of these required steps for exhaustion, but simply “chose not to follow them, ” his unilateral choice did not render the “exhaustion process . . . unavailable for purposes of the PLRA.” Id. That same conclusion is warranted here where the attached grievances to Plaintiff's opposition (see Pl. Opp, Exs. A-Y) reflect that, both before and after the subject incident, he was well aware of the IGRP, and had, at times, abided by its procedures, but, in this instance, chose not to follow them. See Graham, 2002 WL 31132874, at *2 (“Plaintiff is not excused from the requirement that he exhaust administrative remedies simply because he views the process as ineffective.”).
Next, with regard to complaints seeking staff discipline, the Second Circuit noted, in Taylor, that the IGRP provides, in relevant part:
Requests for the removal of a Department employee from an assignment, or the censure, discipline or termination of a Department employee are not subject to the IGRP process. The grievance or request, including any substantive issue that prompted such a request, will otherwise be processed in the ordinary course as described in this directive. The IGRP staff shall forward the complaint seeking discipline of staff to the staff commander's commanding officer.Id. (quoting NYC DOC Directive 3376 § IV (2)(c)); see also IGRP § II(6) (Directive 3376R-A stating essentially the same). As in this case, the plaintiff in Taylor had submitted copies of multiple prior grievances to the district court, as apparent support for his assertion that his administrative remedies were unavailable, as a number of those grievances had purportedly gone unanswered. Those grievances, however, like the ones that Plaintiff has submitted here (see Pl. Opp., Exs. A-Y), did not “form the basis” of the specific constitutional “claim” being argued in the litigation. Rather, the Second Circuit explained that the suit before it had been “predicated on [the plaintiff's] allegedly unconstitutional conditions of confinement and lack of access to the courts, ” 849 Fed.Appx. at 9, and, as those “substantive issues” were “grievable, ” they were subject to the IGRP appeals process, id.
Notably, unlike in Taylor, all of the grievances that Plaintiff has attached as exhibits in this case (see Pl. Opp., Exs. A-Y) reflect that they were, in fact, answered by OCGS staff, in that each one includes an OCGS timestamp, a grievance reference number, a written-in grievance category (wherein the staff member wrote whether the grievance constituted a “staff complaint”), and an OCGS staff member signature. Plaintiff's argument here is thus not that he heard no response to his grievances, but rather that they were not substantively addressed.
Here, Plaintiff has claimed that corrections officers were “deliberately indifferent to [his] medical needs[, ] denying [him] medical attention.” (Compl., at ECF 5.) Underlying Plaintiff's allegations about the officers' behavior is the substantive issue that, in violation of his civil rights, Plaintiff was denied medical attention, a claim that Plaintiff could have grieved through the IGRP. See Leneau, 2018 WL 583120, at *3 (“Claims relating to access to medical care filed against corrections officers fall within the IGRP's purview.”); see also Oates, 2004 WL 1752832, at *2 (characterizing prisoner complaints regarding inadequate medical care as complaints regarding prison conditions). Therefore, contrary to Plaintiff's assertions, the IGRP did provide a means to account for the harms that he allegedly suffered on May 5, 2020, and his decision not to follow that exhaustion procedure cannot be excused on the ground that a meaningful avenue for exhaustion was unavailable.
In sum, as (1) it is plain from the face of the Complaint that Plaintiff has not exhausted his administrative remedies, and (2) Plaintiff has not shown that his failure to exhaust was excusable, I recommend that the Moving Defendants' motion to dismiss (Dkt. 18) be granted.
C. Dismissal With Prejudice
Lastly, I recommend that the dismissal of Plaintiff's claims against the Moving Defendants be granted with prejudice. While it is appropriate for the Court to dismiss an action without prejudice for failing to exhaust administrative remedies where “the time permitted for pursuing administrative remedies has not expired, ” Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2004) (quoting Snider v. Melindez, 199 F.3d 108, 111-12 (2d Cir. 1999)), courts have generally dismissed claims with prejudice where the plaintiff had the opportunity to exhaust administrative remedies, failed to do so, and is no longer able to cure the defect, id. at 88; see Felix v. Simon, 303 Fed.Appx. 21, 22 (2d Cir. 2008) (Summary Order) (upholding dismissal of a civil rights action with prejudice where the time permitted for filing a grievance had expired because “dismissal with prejudice, when remedies are no longer available, is required in the absence of any justification for not pursuing such remedies”).
In this instance, more than one year has passed since the date when Plaintiff should have filed a grievance regarding the alleged May 5, 2020 fire in his cell. See IGRP § XI(B)(1) (“When the inmate demonstrates a valid reason for delay in submitting a grievance, . . . staff may grant an extension to the inmate to permit the inmate to file a grievance/request on Form 7101R no more than ten (10) business days from the date the alleged condition or issue relating to their confinement took place or began.” (emphasis added)). As the time permitted for filing a grievance has expired, meaning that Plaintiff's failure to exhaust his administrative remedies is at this point incurable, dismissal with prejudice would be appropriate. See Felix, 303 Fed.Appx. at 21; see also Jenkins v. Short, No. 9:19-cv-1352 (GTS/TWD), 2020 9264842, at *7 (N.D.N.Y. Nov. 17, 2020) (recommending dismissal with prejudice where more than six months had passed since the plaintiff should have appealed his grievance), report and recommendation adopted, 2021 WL 958512 (Mar. 15, 2021).
Moreover, I recommend that the Court sua sponte dismiss Plaintiff's Complaint, with prejudice, in its entirety, even though certain defendants (Ho and the John Doe Defendants) have not yet been served and have not appeared in the action. Under the PLRA, Plaintiff's lack of exhaustion is fatal to his claims against all Defendants named herein, and it would therefore be futile for the Court to permit the action to continue against these remaining defendants.
CONCLUSION
For all of the foregoing reasons, I respectfully recommend that the Moving Defendants' motion to dismiss (Dkt. 18) be granted, and that the Complaint (as against all Defendants) be dismissed with prejudice under Rule 12(b)(6), based on Plaintiff's unexcused failure to exhaust his claims.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, United States Courthouse, 500 Pearl Street, Room 1310, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Daniels. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14)
DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. (See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Hermann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 98, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-238 (2d Cir. 1983).)
The Clerk of Court is directed to mail a copy of this Report and Recommendation to Plaintiff, at the address reflected on the Docket and shown below.