Opinion
3:23-CV-0471 (GTS/ML)
04-20-2023
THERESA A. LOGAN, Plaintiff, v. NEW YORK MUNICIPAL INSURANCE RECIPROCAL, for the Town of Windsor, New York; ROBERT BRINK, Snowplow Truck Driver; and GREG STORY, Wingman incharge of snowplow blade, Defendants.
APPEARANCES: OF COUNSEL: THERESA A. LOGAN Plaintiff, Pro Se
APPEARANCES: OF COUNSEL:
THERESA A. LOGAN
Plaintiff, Pro Se
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
The Clerk has sent this pro se Complaint together with an application to proceed in forma pauperis filed by Theresa A. Logan (“Plaintiff”) to the Court for review. (Dkt. Nos. 1, 2.) For the reasons discussed below, I grant Plaintiff's in forma pauperis application (Dkt. No. 2) and recommend that Plaintiff's Complaint (Dkt. No. 1) be dismissed without leave to amend.
I. PROCEDURAL HISTORY
On May 18, 2018, Plaintiff commenced a pro se action in the Northern District of New York, Case No. 3:18-CV-0593 (GTS/DEP) (“Logan I”) against the Town of Windsor, Robert Brinks, Gregg Story, and New York Municipal Insurance Reciprocal (“Defendants”) asserting claims of common law assault and battery based on injuries that she sustained on or about March 7, 2011, when she was allegedly struck by debris thrown in her direction by a snowplow operated by Defendants Brinks and Story, who were employees of the Town of Windsor at the time. (Logan I, Dkt. No. 4 at 2.)
The correct spelling of Defendant Story's name is unclear. (Compare Logan I, Dkt. No. 1 at 1 [referring to “Gregg Story”], Logan I, Dkt. No. 5 at 3 [same], Logan I, Dkt. No. 7 at 1 [same], Logan I, Dkt. No. 13 at 1 [same], and Logan II, Dkt. No. 1 at 1 [same], with Dkt. No. 1 at 1 [referring to “Greg Story”], and Dkt. No. 1 at 2 [referring to “Greg Storey”].) For purposes of clarity, the Court will refer to him as “Defendant Story.”
On June 26, 2018, United States Magistrate Judge David E. Peebles granted Plaintiff's IFP application but recommended that Plaintiff's Complaint be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), with leave to replead because it did not allege facts plausibly suggesting that the Court had subject matter jurisdiction over her claims. (Logan I, Dkt. No. 4 at 9.)
On July 11, 2018, Plaintiff filed an Amended Complaint. (Logan I, Dkt. No. 5.) On August 14, 2018, Chief United States District Judge Glenn T. Suddaby, accepted and adopted in its entirety Magistrate Judge Peebles's Report-Recommendation and dismissed Plaintiff's Amended Complaint. (Logan I, Dkt. No. 6.) Chief Judge Suddaby held that Plaintiff's Amended Complaint did “not cure the pleading defects identified by Magistrate Judge Peebles in his thorough Report-Recommendation.” (Id. at 3.) In addition, Chief Judge Suddaby noted that “the Amended Complaint does not allege either events occurring within three years of the date of the filing of the Complaint or facts plausibly suggesting an exception to the statute of limitations (such as a continuing violation).” (Id. at 4.) However, since Plaintiff did not have the benefit of Chief Judge Suddaby's Decision and Order when she filed her Amended Complaint on July 11, 2018, she was given “one final chance to correct these pleading defects.” (Id. at 5 [emphasis in original].)
On September 14, 2018, Plaintiff filed a Second Amended Complaint. (Logan I, Dkt. No. 7.) On September 28, 2018, Magistrate Judge Peebles recommended that Plaintiff's Complaint be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), without leave to replead. (Logan I, Dkt. No. 8.)
On October 19, 2018, Plaintiff filed a Third Amended Complaint. (Logan I, Dkt. No. 13.) On December 17, 2018, Chief Judge Suddaby accepted and adopted Magistrate Judge Peebles's Report-Recommendation in its entirety, dismissed Plaintiff's Third Amended Complaint, and certified that an appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). (Logan I, Dkt. No. 14.)
On January 11, 2019, Plaintiff filed a notice of appeal. (Logan I, Dkt. No. 16.) On June 5, 2019, the Second Circuit issued an order dismissing Plaintiff's appeal because it “lacks an arguable basis either in law or in fact.” (Logan I, Dkt. No. 18.)
On December 20, 2019, Plaintiff commenced another pro se action against Defendants in the Northern District of New York, Case No. 3:19-CV-1590 (GTS/ML) (“Logan II”). That action also related to the alleged incident that occurred on March 7, 2011, when Plaintiff was struck by debris thrown in her direction by a snowplow operated by Defendants Brinks and Story, who were employees of the Town of Windsor at the time. (Logan II, Dkt. No. 1.) Plaintiff asserted one claim of negligence based on the operation of the snowplow, and one claim of defamation based on Defendants' attorney's statements. (Id.)
On April 23, 2020, the undersigned granted Plaintiff's motion for leave to proceed in forma pauperis and recommended that Plaintiff's claims be dismissed without leave to amend. (Logan II, Dkt. No. 5.) On July 20, 2020, Chief United States District Judge Glenn T. Suddaby accepted and adopted the undersigned's report-recommendation in its entirety. (Logan II, Dkt. No. 12.) Chief Judge Suddaby dismissed Plaintiff's Complaint in Logan II without leave to amend. (Id.; Logan II, Dkt. No. 13.)
On July 29, 2020, Plaintiff filed a notice of appeal in Logan II. (Logan II, Dkt. No. 14.) On March 19, 2021, the Second Circuit affirmed the judgment of the district court. (Logan II, Dkt. No. 18.)
II. PLAINTIFF'S ALLEGATIONS
Construed as liberally as possible, Plaintiff's Complaint alleges that she sustained injuries on or about March 7, 2011, when she was struck by debris thrown in her direction by a snowplow operated by Defendants Brinks and Story, who were employees of the Town of Windsor at the time. (See generally Dkt. No. 1.) Plaintiff alleges that as a result of these injuries, she sustained permanent physical damage, resigned from her job, and has become financially stressed. (Id.) Plaintiff does not appear to assert any causes of action and seeks at least $75,000.00 in damages. (Id.)
The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
Plaintiff also filed an application for leave to proceed in forma pauperis. (Dkt. No. 2.)
III. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS
When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $402, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff's in forma pauperis application (Dkt. No. 2), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's application to proceed in forma pauperis is granted.
The language of that section is ambiguous because it suggests an intent to limit availability of IFP status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that section, however, as making IFP status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed.Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F.Supp.2d 534, 536 n.1 (S.D.N.Y. 2002).
Plaintiff is reminded that, although the application to proceed in forma pauperis has been granted, she will still be required to pay fees that she may incur in this action, including copying and/or witness fees.
Plaintiff is advised that the ability to litigate an action without prepayment of fees is a privilege that can be denied, revoked, or limited based upon a showing of prior abuses. See In re Anderson, 511 U.S. 364, 365-66 (1994) (denying the pro se petitioner's request for leave to proceed IFP where the Court found that, like the previous twenty-two petitions filed during the three immediately preceding years, the instant petition was “patently frivolous”); see also Cuoco v. United States Bureau of Prisons, 328 F.Supp.2d 463, 467 (S.D.N.Y. 2004) (“The ability to proceed IFP is a privilege provided for the benefit of indigent persons.”). The authority of a court to deny or limit a request to proceed IFP is implicit in the permissive, rather than compulsory, language of the controlling statute, which provides that “any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor[.]” 28 U.S.C. § 1915(a)(1) (emphasis added); In re McDonald, 489 U.S. 180, 183 (1989). For this reason, courts are regarded as possessing discretionary authority to deny IFP status to litigants who have abused the privilege. See Hurt v. Soc. Sec. Admin., 544 F.3d 308, 309-310 (D.C. Cir. 2008) (quoting Butler v. Dep't of Justice, 492 F.3d 440, 444-45 (D.C. Cir. 2007) (“This Circuit grants IFP status to various plaintiffs, but asserts its discretion to deny or revoke this privilege for abusive litigants, looking to ‘the number, content, frequency, and disposition of their previous filings[.]'”).
Plaintiff's litigation history in this district suggests that she is on the brink of being found to have abused the privilege of proceeding IFP. In fact, United States District Judge Glenn T. Suddaby cautioned Plaintiff in Logan II that, “further unmerited filings by her will likely result in an Order for her to Show Cause why a Pre-Filing Order should not be issued against her, enjoining her from filing any future documents in this Court as a pro se litigant without leave of the Court.” Logan v. Town of Windsor, New York, 19-CV-1590, 2020 WL 4049943, at *1 (N.D.N.Y. July 20, 2020) (Suddaby, C.J.).
Common to the other dismissed actions filed by Plaintiff in this district (including, as will be discussed below, the current Complaint under consideration in this report) is her failure to include factual allegations in her complaints that demonstrate that the Court has jurisdiction to consider her claims. Accordingly, Plaintiff is hereby cautioned that (1) proceeding IFP is a privilege that is extended to litigants at the discretion of the court, and (2) any further filing of patently frivolous lawsuits may result in the denial of any request to proceed IFP in an action and/or a recommendation to the Chief District Judge that a filing injunction be issued against Plaintiff, barring her from filing any future lawsuits in this district without prior permission.
IV. LEGAL STANDARD FOR INITIAL REVIEW OF COMPLAINT
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
In addition, the Court shall dismiss any action where the complaint fails to allege facts plausibly suggesting subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3); see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-89 (1988) (holding that subject matter jurisdiction is a “threshold question that must be resolved . . . before proceeding to the merits.”); Humphrey v. Syracuse Police Dep't, 758 Fed.Appx. 205, 205-06 (2d Cir. 2019) (citing United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014)) (“[b]efore deciding any case on the merits, a district court must determine that it has subject matter jurisdiction over the matter.”); Koziel v. City of Yonkers, 352 Fed.Appx. 470, 471 (2d Cir. 2009) (summary order) (affirming sua sponte dismissal of complaint on initial review for lack of subject matter); Talley v. LoanCare Serv., Div. of FNF, 15-CV-5017, 2018 WL 4185705, at *5 (E.D.N.Y. Aug. 31, 2018) (dismissing on initial review, action challenging state court mortgage foreclosure judgment because the court lacked jurisdiction); Eckert v. Schroeder, Joseph & Assoc., 364 F.Supp.2d 326, 327 (W.D.N.Y. 2005) (citing Hughes v. Patrolmen's Benevolent Ass'n of the City of N.Y., Inc., 850 F.2d 876, 881 (2d Cir. 1988), cert. denied, 488 U.S. 967 (1988)) (“[a] court shall, sua sponte, dismiss a complaint for lack of subject matter jurisdiction as soon as it is apparent that it lacks subject matter jurisdiction.”).
In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief means that 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) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 [2007]). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense....[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).
“In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff's pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
The Court, however, also has an overarching obligation to determine that a claim is not legally frivolous before permitting a pro se plaintiff's complaint to proceed. See, e.g., Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee). “Legal frivolity . . . occurs where ‘the claim is based on an indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Aguilar v. United States, 99-MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal theory . . . or factual contentions lack an arguable basis.”); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (“[T]he decision that a complaint is based on an indisputably meritless legal theory for purposes of dismissal under section 1915(d), may be based upon a defense that appears on the face of the complaint.”).
V. ANALYSIS
After careful consideration, I recommend dismissal of Plaintiff's claims because the Complaint fails to allege facts plausibly suggesting that the Court has subject matter jurisdiction.
Subject matter jurisdiction can never be waived or forfeited. ACCD Global Agric., Inc. v. Perry, 12-CV-6286, 2013 WL 840706, at *1 (S.D.N.Y. March 1, 2013) (quoting Dumann Realty, LLC v. Faust, 09-CV-7651, 2013 WL 30672, at *1 (S.D.N.Y. Jan. 3, 2013)). Federal courts are mandated to examine their own jurisdiction sua sponte at every stage of the litigation. ACCD Global Agric., Inc., 2013 WL 840706, at *1; see In re Tronox, Inc., 855 F.3d 84, 85 (2d Cir. 2017) (federal courts have an independent obligation to consider the presence or absence of subject matter jurisdiction sua sponte).
A federal court exercises limited jurisdiction pursuant to Article III of the Constitution. It has subject matter jurisdiction over claims in which: (1) there is a ‘federal question' in that a colorable claim arises under the ‘Constitution, laws or treaties of the United States,' 28 U.S.C. § 1331; and/or if (2) there is complete “diversity of citizenship” between each plaintiff and all defendants and a minimum of $75,000 in controversy, 28 U.S.C. § 1332.Gonzalez v. Ocwen Home Loan Servicing, 74 F.Supp.3d 504, 511-12 (D. Conn. 2015) (quoting Da Silva v. Kinsho Int'l Corp., 229 F.3d 358, 363 (2d Cir. 2000) (delineating two categories of subject matter jurisdiction) (footnote omitted)), reconsideration denied, 14-CV-0053, 2015 WL 2124365 (D. Conn. May 6, 2015).
The existence of a federal question is governed by the “well-pleaded complaint” rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. 28 U.S.C. § 1331. A well-pleaded complaint presents a federal question where it “establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on a resolution of a substantial question of federal law.” Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9 (1983).
Here, the Complaint explicitly left blank whether the basis for federal court jurisdiction is based on a federal question or diversity of citizenship. (Dkt. No. 1 at 3.) Instead, it again appears as though Plaintiff believes she can bring her claims in federal court based on a friend's referral, despite the Court rejecting this contention in Logan II. (Dkt. No. 1 at 11; see also Logan II, Dkt. No. 1 at 3; Logan II, Dkt. No. 5 at 9-10.)
Notwithstanding, the Civil Cover Sheet, which accompanied Plaintiff's Complaint, alleges that the basis for the Court's jurisdiction is that it presents a federal question. (Dkt. No. 1, Attach. 1.) However, the Complaint fails to cite any federal statute, treaty, or the United States Constitution as a basis for Plaintiff's claims. Merely because the events giving rise to Plaintiff's claims occurred within the Northern District of New York, does not convey jurisdiction to this Court. The only conceivable cause of action based on the factual allegations contained in the Complaint is negligence, which is a New York State common-law tort governed by state law. As currently pleaded, this state-law claim does not raise any federal question. Logan v. Town of Windsor, New York, 19-CV-1590, 2020 WL 1950860, at *5 (N.D.N.Y. Apr. 23, 2020) (Lovric, M.J.) (recommending dismissal of Plaintiff's negligence and defamation claims based on the same factual assertions alleged here), report and recommendation adopted by, 2020 WL 4049943 (N.D.N.Y. July 20, 2020) (Suddaby, C.J.); see Wilson v. Neighborhood Restore Dev., 18-CV-1172, 2018 WL 2390143, at *3 (E.D.N.Y. May 18, 2018) (dismissing the complaint for lack of subject matter jurisdiction where the plaintiffs alleged claims of breach of contract, breach of warranty of habitability, negligence, personal injury, and fraud); Lindstrom v. Transervice Logistics Inc., 17-CV-6988, 2018 WL 1121598, at *2 (E.D.N.Y. Feb. 27, 2018) (sua sponte dismissing the complaint for lack of subject matter jurisdiction, where the plaintiffs alleged claims pursuant to negligence and loss of consortium based on a multi-vehicle automobile accident that occurred on Interstate 78); West v. Sanchez, 17-CV-2482, 2017 WL 1628887, at *2 (E.D.N.Y. May 1, 2017) (finding no federal question jurisdiction where the “allegations appear to amount to a state-law personal injury claim”); White v. Ercole, 06-CV-1136, 2009 WL 602890, at *5 (S.D.N.Y. Mar. 3, 2009) (negligence claim is a matter of state law).
Moreover, there is no diversity of citizenship sufficient to assert jurisdiction in this case pursuant to 28 U.S.C. § 1332. (Dkt. No. 1 at 1-2 [alleging that Plaintiff is a citizen of New York State and that Defendants Brink and Story are citizens of New York State]); see Moore v. Brooklyn Hosp. Ctr., 22-CV-4208, 2022 WL 16798230, at *2 (E.D.N.Y. Nov. 8, 2022) (“Because all parties to the action are citizens of New York, diversity of citizenship is lacking, and the requirements of 28 U.S.C. § 1332 are not met.”).
After carefully reviewing Plaintiff's Complaint and considering other possible bases for jurisdiction, I find that there is no basis for jurisdiction over Plaintiff's Complaint. As a result, I recommend that Plaintiff's Complaint be dismissed.
VI. OPPORTUNITY TO REPLEAD
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to replead at least once “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave when justice so requires.”). An opportunity to replead is not required, however, where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
See also Carris v. First Student, Inc., 132 F.Supp.3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)-that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”-is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds, 682 Fed.Appx. 30.
Here, leave to amend would be futile. As a result, I recommend that Plaintiff's claims be dismissed without leave to amend. See Vazquez v. New York, 22-CV-0196, 2022 WL 2390248, at *6 (N.D.N.Y. June 30, 2022) (Hummel, M.J.) (recommending dismissal without leave to amend the plaintiff's defamation claim because, inter alia, “plaintiff has not established jurisdiction.”), report and recommendation adopted by, 2022 WL 3100553 (N.D.N.Y. Aug. 4, 2022) (Suddaby, C.J.).
ACCORDINGLY, it is
ORDERED that Plaintiff's application to proceed in forma pauperis (Dkt. No. 2) 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 respectfully
RECOMMENDED that the Court DISMISS WITHOUT PREJUDICE BUT WITHOUT LEAVE TO REPLEAD Plaintiff's Complaint (Dkt. No. 1) because the Court lacks subject matter jurisdiction; and it is further
ORDERED that the Clerk of the Court shall file a copy of this order, report, and recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: 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 . 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; 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)).
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order 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).