Opinion
5:23-cv-00240 (DNH/TWD)
04-17-2023
RAMAINE WILLIAMS, Plaintiff, v. CITY OF AUBURN, NY; CAYUGA COUNTY; DISTRICT COUNTY ATTORNEY FOR CITY OF AUBURN AND COUNTY OF CAYUGA, Defendants.
RAMAINE WILLIAMS Plaintiff, pro se 13465
APPEARANCES:
RAMAINE WILLIAMS Plaintiff, pro se 13465
OF COUNSEL:
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
On or about January 23, 2023, pro se plaintiff Ramaine Williams (“Plaintiff' or “Williams”), currently confined at the Cayuga County Jail, commenced this action in the Western District of New York (“WDNY”) pursuant to 42 U.S.C. § 1983 alleging constitutional violations arising from his arrest, prosecution, and detention in Cayuga County, New York. (Dkt. No. 1.) He did not pay the filing fee and sought leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 2, 5.) On February 21, 2023, the action was transferred to this District pursuant to 28 U.S.C. §1406(a). (Dkt. No. 6.) The WDNY did not consider the merits of Plaintiff's IFP application or the sufficiency of the complaint. Id.
The Clerk has forwarded Plaintiff's complaint and IFP application to this Court for review. (Dkt. Nos. 1, 5.) Plaintiff sues the City of Auburn, NY (the “City of Auburn”), Cayuga County, and the District County Attorney for the City of Auburn and County of Cayuga (“District Attorney”) (together, “Defendants”) alleging violations of his constitutional rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments. (Dkt. No. 1.)
The Clerk is directed to amend the docket and add “District County Attorney for City of Auburn and County of Cayuga” as a Defendant as set forth in paragraph 1 of the complaint.
II. DISCUSSION
A. IFP Application
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Id. (citing 28 U.S.C. § 1915(b) and Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
The Court has reviewed Plaintiff's litigation history on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) Service. See http://pacer.uspci.uscourts.gov. It does not appear Plaintiff had accumulated three strikes for purposes of 28 U.S.C. § 1915(g) as of the date this action was commenced.
Because Plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a), and has filed the inmate authorization form required in this District, he is granted permission to proceed IFP. (Dkt. Nos. 3, 5.) Therefore, under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, the Court must review the claims set forth in the complaint.
B. Legal Standard
Sections 1915 and 1915A “provide an efficient means by which a court can screen for and dismiss legally insufficient claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citing Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). The Court shall dismiss a complaint in a civil action in which a prisoner seeks redress from a governmental entity, or an officer or employee of a governmental entity, if the Court determines that the action (1) is frivolous,malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1)-(2); 28 U.S.C. § 1915(e)(2)(B). The Federal Rules of Civil Procedure require a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court will generally afford a pro se plaintiff an opportunity to amend or to be heard prior to dismissal, leave to amend pleadings may be denied when any amendment would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. (Dkt. No. 1.) “To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States.” Whalen v. Cty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997). “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).
To establish liability against an official under Section 1983, a plaintiff must allege that individual's personal involvement in the alleged constitutional or federal law violation. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (“supervisor liability in a § 1983 action depends on a showing of some personal responsibility, and cannot rest on respondeat superior”); Because “a plaintiff must plead and prove that each Government-official defendant, through the official's own individual actions, has violated the Constitution,” the personal involvement of each defendant must be plausibly alleged in the complaint. Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (internal quotation marks and citation omitted).
When a plaintiff asserts a Section 1983 claim against a municipal defendant, the plaintiff must also demonstrate that the constitutional deprivation “resulted from a municipal custom or policy.” Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 122 (2d Cir. 1991). Municipal liability is “an extension of liability, not an independent cause of action, and therefore requires an underlying constitutional violation.” Soto v. City of New York, 132 F.Supp.3d 424, 459 (E.D.N.Y. 2015) (citing Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006)).
C. Plaintiff's Allegations
In evaluating the complaint, the Court must accept all factual allegations as true and must draw all inferences in Plaintiff's favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003).
On June 14, 2022, Auburn City Police Officer Spinelli (“Spinelli”) “performed an illegal traffic stop.” (Dkt. No. 1 at 1.) Spinelli stopped Plaintiff “simply because he recognized the plaintiff and not a violation of the law.” Id. Later, Spinelli claimed “failure to signal was the reason for the stop, but plaintiff did use both turn signals on the car.” Id. Spinelli also performed an “unlawful search of plaintiff's person and car without cause or consent” resulting in an unlawful seizure of Plaintiff's money, property, car, and person. Id.
Page references to documents identified by docket number refer to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
“As a result of said unlawful search and seizure, a felony complaint was issued but was created and affirmed 4 days (6-10-22) before the traffic stop evidencing premeditation of violating Plaintiff's rights and invalidating the verification, certification, and readiness announcement.” Id. “Said complaint was issued by a 3rd officer, Jacob Turner.” Id.
Plaintiff was assigned an attorney by Cayuga County. Id. However, “from June 2022 through present day,” J. Sapio, Esq. (“Sapio”) “failed to communicate through calls, emails or visits.” Id. Additionally, although Sapio “drafted an Omnibus motion raising issues meritorious of dismissal,” Sapio “failed to address the fraudulent felony complaint or submit said Omnibus motion denying Plaintiff an opportunity for case dismissal and effective assistance of counsel.” Id. at 1-2. “Furthermore, Spinelli denied Plaintiff an opportunity to assist in Plaintiff's defense via his failure to communicate.” Id. at 2.
Plaintiff is likely referring to Sapio and not Spinelli.
“Plaintiff requests injunctive relief of an order to the Cayuga County Sheriff releasing him from incarceration, expunging his criminal record, and an order to the Cayuga County D.A. to end all prosecution of this action in the present and future.” Id.
Construed liberally, Plaintiff claims a series of constitutional violations arising from his June 14, 2022, arrest, including a violation of his Fourth and Fourteenth Amendment rights based on what Plaintiff claims was an illegal traffic stop and search, an unlawful seizure of his property, and his false arrest based on fabricated information. The complaint also references violations of the Fifth and Sixth Amendments.
D. Sufficiency of Claims
1. District Attorney
Plaintiff sues the District County Attorney for the City of Auburn and County of Cayuga. Prosecutors enjoy “absolute immunity from § 1983 liability for those prosecutorial activities intimately associated with the judicial phase of the criminal process.” Barr v. Abrams, 810 F.2d 358, 361 (2d Cir. 1987). The immunity covers “virtually all acts, regardless of motivation, associated with [the prosecutor's] function as an advocate.” Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995). Functions to which absolute immunity applies are when a prosecutor's conduct, acting as an advocate during the judicial phase of the criminal process, involves the exercise of discretion. See Flagler v. Trainor, 663 F.3d 543, 547 (2d Cir. 2011) (“Prosecutors are absolutely immune from suit only when acting as advocates and when their conduct involves the exercise of discretion.”) (citing Kalina v. Fletcher, 522 U.S. 118, 127 (1997)). This includes such functions as “deciding whether to bring charges and presenting a case to a grand jury or a court, along with the tasks generally considered adjunct to those functions, such as witness preparation, witness selection, and issuing subpoenas,” Simon v. City of New York, 727 F.3d 167, 171 (2d Cir. 2013), and whether and when to drop charges. Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981). “This immunity attaches to conduct in court, as well as conduct ‘preliminary to the initiation of a prosecution and actions apart from the courtroom.'” Giraldo v. Kessler, 694 F.3d 161, 165 (2d Cir. 2012) (quoting Imbler v. Pachtman, 424 U.S. 409, 431 n.33 (1976).
“[O]nce a court determines that challenged conduct involves a function covered by absolute immunity, the actor is shielded from liability for damages regardless of the wrongfulness of his motive or the degree of injury caused.” Bernard v. Cty. of Suffolk, 356 F.3d 495, 503 (2d Cir. 2004) (citing Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985)). Absolute immunity extends even to a prosecutor who “conspir[es] to present false evidence at a criminal trial. The fact that such a conspiracy is certainly not something that is properly within the role of a prosecutor is immaterial, because the immunity attaches to his function, not to the manner in which he performed it.” Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994) (cleaned up). Immunity even extends to “the falsification of evidence and the coercion of witnesses,” Taylor, 640 F.2d at 452, “the knowing use of perjured testimony,” “the deliberate withholding of exculpatory information,” Imbler, 424 U.S. at 431 n.34, the “making [of] false or defamatory statements in judicial proceedings,” Burns v. Reed, 500 U.S. 478, 490 (1991), and “conspiring to present false evidence at a criminal trial,” Dory, 25 F.3d at 83.
Here, Plaintiff's allegations against the District Attorney involved in his prosecution relating to the alleged “illegal traffic stop,” “unlawful” search and seizure of Plaintiff's person and personal items, and alleged perjured felony complaint, all relate to the carrying out of prosecutorial functions. Based on the authority cited above, the District Attorney is immune from suit and liability based on absolute prosecutorial immunity.
Moreover,” [w]hen prosecuting a criminal matter, a district attorney in New York State, acting in a quasi-judicial capacity, represents the State not the county.'” Ying Jing Gan v. City of New York, 996 F.2d 522, 536 (2d Cir. 1993) (quoting Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988), cert. denied, 488 U.S. 1014 (1989)); see also Rich v. New York, No. 21-CV-3835, 2022 WL 992885, at *5 n.4 (S.D.N.Y. Mar. 31, 20221) (“[A]ny claims Plaintiff may raise against the [District Attorney] Defendants in their ‘official capacity' would be precluded by immunity under the Eleventh Amendment.”); Gentry v. New York, No. 21-CV-0319, 2021 WL 3037709 (GTS/ML), at *6 (N.D.N.Y. June 14, 2021) (recommending dismissal of the plaintiff's claims against the defendant assistant district attorneys in their official capacities-which were effectively claims against the State of New York-as barred by the Eleventh Amendment), adopted by, 2021 WL 3032691 (N.D.N.Y. July 19, 2021).
Therefore, the Court recommends that Plaintiff's Section 1983 claims against the District Attorney be dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915A(b)(2).
2. City of Auburn and Cayuga County
Plaintiff sues the City of Auburn and Cayuga County. It is well-established that a municipality cannot be held liable under Section 1983 on a respondeat superior theory. See Monell v. Dep't of Soc. Servs. of N.Y. City, 436 U.S. 658, 691 (1978); Agosto v. N.Y.C. Dep't of Educ., 982 F.3d 86, 98 (2d Cir. 2020) (“Monell expressly prohibits respondeat superior liability for municipalities” (citations omitted)). To hold a municipality liable in a Section 1983 action, “a plaintiff is required to plead and prove three elements: (1) an official custom or policy that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995) (internal quotation marks omitted). To establish the existence of a municipal policy or custom, the plaintiff must allege:
(1) the existence of a formal policy which is officially endorsed by the municipality; (2) actions taken or decisions made by municipal policymaking officials, i.e., officials with final decisionmaking authority, which caused the alleged violation of the plaintiff's civil
rights; (3) a practice so persistent and widespread as to practically have the force of law or that was so manifest as to imply the constructive acquiescence of senior policy-making officials; or (4) that a policymaking official exhibited deliberate indifference to constitutional deprivations caused by subordinates.Avant v. Miranda, No. 21-CV-0974, 2021 WL 1979077, at *3 (E.D.N.Y. May 18, 2021) (cleaned up). A single incident of unconstitutional activity by a municipal employee is generally insufficient to infer a custom, policy or practice as required by Monell to impose municipal liability. Griffith v. Sadri, No. 07-cv-4824, 2009 WL 2524961, at *8 (E.D.N.Y. Aug. 14, 2009) (collecting cases).
Here, Plaintiff fails to articulate how the City of Auburn or Cayuga County violated his constitutional rights. Even when liberally construed, there are no factual allegations that a municipal policy or custom existed that caused the alleged constitutional deprivations of which Plaintiff complains.
Further, as noted above, the Second Circuit Court of Appeals has unequivocally held that “prosecutorial acts may not ‘fairly be said to represent official policy' of the County,” because “[w]hen prosecuting a criminal matter, a district attorney in New York State, acting in a quasi-judicial capacity, represents the State not the county.” Baez v. Hennessy, 853 F.2d 73 (2d Cir. 1988) (citations omitted); see also Doe v. Smith, 704 F.Supp. 1177, 1184 (S.D.N.Y.1988). No county policy can require district attorneys to depart from the policy of the state, nor does the county have a right to establish policy concerning how a district attorney should prosecute violations of state criminal laws. Id. “Indeed, it would be a violation of a district attorney's ethical obligations as counsel for the State in a criminal proceeding to permit himself to be influenced in the performance of his duties by so-called policies of a county.” Id. at 77.
“Moreover, even if the County were liable for the prosecutorial acts of the Attorney and her office, no claim would lie, because the District Attorney and individuals employed by her, acting within in their official capacities, are protected by absolute immunity for prosecutorial acts in pursuing a criminal prosecution and presenting the State's case.” McLaurin v. New Rochelle Police Officers, 368 F.Supp.2d 289, 295 (S.D.N.Y. 2005) (citing Buckley v. Fitzsimmons, 509 U.S. 259 (1993)).
Therefore, the Court recommends that Plaintiff's Section 1983 claims against the City of Auburn and Cayuga County be dismissed without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915A(b)(1).
3. Other Referenced Individuals
Rule 10(a) of the Federal Rules of Civil Procedure provides that, “the title of the complaint must name all the parties.” Fed.R.Civ.P. 10(a). A party not named in the caption of the complaint is not a party to the action. Abbas v. United States, No. 10-CV-0141, 2014 WL 3858398, at *2 (W.D.N.Y. Aug. 1, 2014) (the failure to name a party in the caption makes it “infeasible for the Court to determine which of the individual officers mentioned in the body of the complaint should be deemed to be defendants to which claims”). “If people are not also named in the caption of the [ ] complaint, they will not be defendants in the case.” Whitley v. Krinser, No. 06-cv-0575, 2007 WL 2375814, at *1 (W.D.N.Y. Aug. 15, 2007).
Here, the complaint references Spinelli, Turner, and Sapio. Because the aforementioned individuals are not identified as defendants in the caption or list of parties, the Court will not construe the complaint to include any claims or causes of action against these individuals.
The Court notes however, insofar as Plaintiff seeks to impose liability on his attorney based on the allegations in the current complaint, such claims are not plausible because attorneys, whether court appointed or privately retained, are generally not state actors for purposes of Section 1983. See, e.g., Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981); see also Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997) (“[I]t is well-established that court-appointed attorneys performing a lawyer's traditional functions as counsel to [a] defendant [in a criminal proceeding] do not act ‘under color of state law' and therefore are not subject to suit under 42 U.S.C. § 1983.”).
4. Heck v. Humphrey Bars Plaintiff's Section 1983 Claims
When a claim under Section 1983 calls into question the validity of an underlying conviction, a district court must dismiss the claim, unless the conviction has been invalidated. Heck v. Humphrey, 512 U.S. 477, 487 (1994); Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (Heck's bar applies regardless of whether a plaintiff seeks damages or injunctive relief).
The Court takes judicial notice of Williams' challenge to a November 18, 2022, judgment of conviction, pursuant to a guilty plea, from Cayuga County Court, for fourth degree criminal possession of a controlled substance and fourth degree criminal contempt pursuant to 28 U.S.C. § 2254. See Williams v. Schenck, No. 9:22-cv-01334 (BKS/TWD) (NDNY) (filed Dec. 13, 2022), ECF Dkt. No. 1 (petition), Dkt. No. 5 (amended petition). According to the amended petition, filed February 8, 2023, Williams was stopped and arrested by “Officer Spinelli” on June 14, 2022, “Officer Turner” signed a perjured felony complaint four days before the illegal traffic stop, “Cayuga County District Attorney Grome Antonacci” conducted the grand jury proceedings and prosecuted Williams, and “Attorney Sapio” rendered ineffective assistance of counsel. Williams, represented by “Joe Sapio,” pleaded guilty and was scheduled to be sentenced on March 30, 2023. Id., ECF Dkt. No. 5.
On February 17, 2023, the Hon. Brenda K. Sannes, Chief United States District Judge, liberally construed Williams' amended petitions as arguing that he was entitled to federal habeas corpus relief because (1) he was stopped without probable cause on June 14, 2022, (2) the felony complaint and grand jury proceedings were deficient; and (3) his trial counsel was constitutionally ineffective. Id., ECF Dkt. No. 6 at 2. By Decision and Order filed February 23, 2023, the amended petition was dismissed without prejudice as premature for failure to exhaust available state court remedies. Id.
In Heck v. Humphrey, the Supreme Court held that
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.512 U.S. at 487. “Subsequently, the Supreme Court and the Second Circuit extended Heck's reach to Section 1983 lawsuits brought during pending criminal prosecutions.” Dawson v. Lippiccolo, 590 F.Supp.3d 514, 517 (E.D.N.Y. 2022) (finding plaintiff's challenge to his ongoing criminal prosecution based on his claim of an “illegal search” to be barred by Heck and denying leave to amend); see also Curtis v. Rockland Cty., No. 21-CV-04294, 2022 WL 16540705, at *5 (S.D.N.Y. Oct. 28, 2022) (“A judgment in Plaintiff's favor on the unlawful search and seizure claim would clearly imply the invalidity of his conviction, and the claim is therefore barred by Heck v. Humphrey.”).
Here, all of Plaintiff's Section 1983 claims arise from Plaintiff's June 2022 prosecution and conviction in Cayuga County. As is readily apparent, affording the pro se complaint a liberal construction, there is no allegation that Plaintiff's conviction has been invalidated. Indeed, “Plaintiff requests injunctive relief of an order to the Cayuga County Sheriff releasing him from incarceration, expunging his criminal record, and an order to the Cayuga County D.A. to end all prosecution of this action in the present and future.” (Dkt. No. 1 at 2.) Given that Plaintiff has not alleged any injury other than those related to his conviction and imprisonment, which he asserts resulted from the alleged illegal search and arrest on June 14, 2022, he cannot recover any damages or seek injunctive relief for these injuries unless and until his conviction is overturned. See Curtis v. Rockland Cty., 2022 WL 16540705, at *5. Therefore, because Plaintiff's success on his civil rights claims in this action would necessarily invalidate the conviction, which is not alleged to have been reversed or vacated, Plaintiff's Section 1983 claims are not cognizable under Heck. Thus, Heck's bar precludes their adjudication.
“Although ‘[Section] 1983 remains a possible remedy when there is no other federal avenue through which to bring a claim,' Chillemi v. Town of Southampton, 943 F.Supp.2d 365, 375 (E.D.N.Y. 2013), Plaintiff has the opportunity to seek habeas relief once his constitutional claims are properly exhausted in state court.” Braithwaite v. Collins, No. 22-CV-0016, 2023 WL 2350030, at *7 (E.D.N.Y. Mar. 3, 2023).
Accordingly, at this juncture, Plaintiff's Section 1983 claims are not plausible and the Court recommends dismissing the complaint without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). See Arrington v. LoTempio, No. 22-CV-6141, 2023 WL 375098, at *3-4 (W.D.N.Y. Jan. 24, 2023) (sua sponte dismissing plaintiff's illegal search and denial-of-fair-trial claims without prejudice pursuant to Heck, including related conspiracy claims, brought pursuant to Section 1983 and Bivens).
E. Denial of Leave to Amend
Generally, when the court dismisses a pro se complaint sua sponte, the court should afford the plaintiff the opportunity to amend at least once; however, leave to amend may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). At this juncture, because the problems with Plaintiff's Section 1983 claims are substantive and because of the bar imposed by Heck, the Court recommends dismissal of the complaint in its entirety without leave to amend.
WHEREFORE, for these reasons, it is hereby
ORDERED that Plaintiff's IFP application (Dkt. No. 5) is GRANTED only for purposes of filing and any appeal unless the trial court certifies in writing that the appeal is not taken in good faith; and it is further
ORDERED that the Clerk is directed to amend the docket to add “District County Attorney for City of Auburn and County of Cayuga” as a Defendant; and it is further
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED IN ITS ENTIRETY WITHOUT LEAVE TO AMEND pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii), 1915A(b)(1); and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, along with a copy of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); 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).