Opinion
6:23-CV-1543 (DNH/ML)
06-20-2024
SYLVESTER COLLINS, Plaintiff, v. DINO JUKIC, Police Officer; JOHN P. DETRAGLIA, Police Officer; and PATRICK WEST, Police Officer, Defendants.
SYLVESTER COLLINS Plaintiff, Pro Se Hale Creek ASACTC
SYLVESTER COLLINS Plaintiff, Pro Se Hale Creek ASACTC
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
The Clerk has sent a pro se complaint in the above captioned action together with a second amended application to proceed in forma pauperis and inmate authorization filed by Sylvester Collins (“Plaintiff”) to the Court for review. (Dkt. Nos. 1, 8, 9.) For the reasons discussed below, I grant Plaintiff's second amended in forma pauperis application and recommend that Plaintiff's Complaint be dismissed in its entirety with leave to amend. (Dkt. Nos. 1, 8.)
I. BACKGROUND
Construed as liberally as possible, Plaintiff's Complaint alleges that defendants Dino Jukic, John P. Detraglia, and Patrick West (collectively “Defendants”)-who are police officers employed by the City of Utica-violated his civil rights. (See generally Dkt. No. 1.)
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)).
More specifically, the Complaint alleges that on December 6, 2020, Plaintiff parked in the driveway of a private residence and Defendant Jukic parked his patrol vehicle on the street blocking the driveway where Plaintiff was parked. (Dkt. No. 1 at 3.) The Complaint alleges that Defendant Jukic reviewed Plaintiff's driver's license, determined that Plaintiff's driving privileges were suspended, and informed Plaintiff that he would be issuing citations for aggravated unlicensed operation of a motor vehicle in the third degree and failure to signal during a turn. (Id.) The Complaint alleges that Defendant Jukic told Plaintiff that Plaintiff would not be permitted to drive the vehicle away because of the suspension and Plaintiff told Defendant Jukic that a licensed driver would retrieve the vehicle. (Id.)
The Complaint alleges that a few minutes later, Defendant Detraglia arrived on the scene and demanded that Plaintiff get out of the vehicle because it was being impounded. (Dkt. No. 1 at 3.) Plaintiff alleges that he told Defendant Detraglia that a licensed driver was on the way to retrieve the vehicle. (Id.) The Complaint alleges that Defendant Detraglia attempted to open the driver's side door to forcefully remove Plaintiff from the vehicle because Plaintiff refused Defendant Detraglia's commands to exit the vehicle. (Id.) The Complaint alleges that Defendant Detraglia threatened to break the vehicle's window, forcefully remove Plaintiff, and charge Plaintiff with a crime. (Id.) The Complaint alleges that Plaintiff “reluctantly, under protest and duress exited the automobile” and stated that he did “not consent to any search and/or seizure of the automobile.” (Id.)
The Complaint alleges that before Plaintiff exited the vehicle, two of Plaintiff's family members arrived on scene to retrieve the vehicle. (Dkt. No. 1 at 3.) The Complaint alleges that notwithstanding the arrival of licensed drivers and Plaintiff's refusal to consent to a vehicle search, Defendants Detraglia and West began searching the vehicle. (Id.)
The Complaint alleges that Plaintiff walked down the street after being issued two traffic citations. (Id.) The Complaint alleges after Plaintiff walked away from the scene, Defendant Jukic ran up behind Plaintiff, grabbed Plaintiff, and told Plaintiff that he was being placed under arrest based on evidence found in the vehicle during an inventory search. (Id.)
The Complaint alleges that Plaintiff was placed in handcuffs and refused to get into the patrol vehicle. (Dkt. No. 1 at 3.) The Complaint alleges that Defendant Detraglia pushed Plaintiff into the backseat of the patrol vehicle. (Id.) The Complaint alleges that non-party Officer Husney transported Plaintiff to the Utica Police Department. (Id.)
The Complaint alleges that during court proceedings, Defendant Jukic provided inconsistent testimony, which “ultimately le[]d to” and has continued to cause Plaintiff's incarceration for over one thousand days. (Dkt. No. 1 at 4.)
Based on these factual allegations, the Complaint asserts the following five causes of action: (1) a claim of unlawful seizure against Defendant Jukic in violation of the Fourth Amendment and 42 U.S.C. § 1983 based on the impoundment of Plaintiff's vehicle; (2) a claim of unlawful search against Defendant Detraglia in violation of the Fourth Amendment and 42 U.S.C. § 1983 based on the search of the vehicle; (3) a claim of unlawful search against Defendant West in violation of the Fourth Amendment and 42 U.S.C. § 1983 based on the search of the vehicle; (4) a claim of deliberate indifference to Plaintiff's Fourth Amendment rights against Defendant Jukic for not intervening while Defendants West and Detraglia were conducting the unlawful search of the vehicle; and (5) a claim of unlawful arrest against Defendant Jukic in violation of the Fourth Amendment and 42 U.S.C. § 1983. (Dkt. No. 1 at 45.) As relief, Plaintiff seeks compensatory damages in the amount of $20,000 for the unlawful search, $20,000 for the unlawful seizure, and $1,000 per day that Plaintiff has been incarcerated. (Dkt. No. 1 at 6.)
II. PLAINTIFF'S SECOND AMENDED APPLICATION TO PROCEED IN FORMA PAUPERIS
“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, 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.” Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
Section § 1915(g) prohibits a prisoner from proceeding in forma pauperis where, absent a showing of “imminent danger of serious physical injury,” a prisoner has filed three or more actions that were subsequently dismissed as frivolous, malicious, or failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g). 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 from that review that Plaintiff had accumulated three strikes for purposes of 28 U.S.C. § 1915(g) as of the date this action was commenced.
Upon review, the Court finds that Plaintiff has submitted a completed IFP application which has been certified by an appropriate official at his facility (Dkt. No. 8 at 2), and which demonstrates economic need. See 28 U.S.C. § 1915(a)(2). Plaintiff has also filed the inmate authorization required in the Northern District. (Dkt. No. 9.)
Accordingly, Plaintiff's second amended application to proceed with this action IFP is granted. (Dkt. No. 8.)
III. LEGAL STANDARD FOR REVIEW OF THE COMPLAINT
Having found that Plaintiff met the financial criteria for commencing this action in forma pauperis, the Court must consider the sufficiency of the allegations set forth in the Complaint in light of 28 U.S.C. §§ 1915(e). Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed in forma pauperis, “the court shall dismiss the case at any time if the court determines that- . . . (B) 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)(B); see also 28 U.S.C. 1915A(a) (“The court shall review . . . as soon as practicable . . . a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.”).
To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Additionally, when reviewing a complaint, a court may also look to the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading which sets forth a claim for relief shall contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 “is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable.” Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, C.J.) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977)).
A court should not dismiss a complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), rev'd on other grounds, 682 Fed.Appx. 30. “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 should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rule 8 “demands more than an unadorned the-defendant-unlawfully-harmed-me accusation.” Id. Thus, a pleading that contains only allegations which “are so vague as to fail to give the defendants adequate notice of the claims against them” is subject to dismissal. Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009).
IV. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the court must construe his pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff's Complaint with this principle in mind, I recommend that it be dismissed.
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
A. Unlawful Seizure Claim Against Defendant Jukic
Plaintiff's first claim relates to the impoundment of his vehicle.
The impoundment of a vehicle may implicate rights guaranteed by the Fourth Amendment's protection against unreasonable searches and seizures. See Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th Cir. 2005) (“The impoundment of an automobile is a seizure within the meaning of the Fourth Amendment.”); see also United States v. Coccia, 446 F.3d 233, 237-38 (1st Cir. 2006) (considering a challenge to the towing of a vehicle as an unreasonable seizure in violation of the Fourth Amendment). However, “[i]n the interests of public safety and as part of what the [Supreme] Court has called ‘community caretaking functions,' automobiles are frequently taken into police custody.” S. Dakota v. Opperman, 428 U.S. 364, 368-69 (1976) (quoting Cady v. Dombrowski, 413 U.S. 433, 441 (1973)). “When a person is taken into custody after being stopped in his vehicle, it is reasonable for police officers to impound the vehicle under the community care functions where, among other things, the vehicle would otherwise potentially impede traffic, threaten public safety, or be subject to vandalism.” United States v. Colon, 10-CR-0498, 2011 WL 569874, at *14 (S.D.N.Y. Feb. 8, 2011) (citing United States v. Bailey, 468 F.Supp.2d 373, 392 (E.D.N.Y. 2006); Opperman, 428 U.S. at 373).
The Complaint alleges that Defendant Jukic “learn[ed] that [Plaintiff's] alleged driver's license and/or driving privileges were suspended.” (Dkt. No. 1 at 3.)
This Court has held that a due process or constitutional claim regarding the impoundment of a vehicle is not viable where the plaintiff's drivers license had expired. Derocha v. Dewitt Police Dep't, Civil Action No. 5:22-CV-1344 (N.D.N.Y. filed Dec. 14, 2022) at Dkt. No. 5 at 3 n.2 (Baxter, M.J.) (citing Carter v. Campanelli, 22-CV-2702, 2022 WL 1667022, at *2-3 (E.D.N.Y. May 20, 2022) (finding no due process or other constitutional violations arising from the impoundment of a vehicle with a suspended registration)), report and recommendation adopted, Dkt. No. 7 (Hurd, J.); see also N.Y. Veh. & Traf. Law § 509 (a valid driver's license issued by the State of New York is required to operate a motor vehicle). Thus, it was not a constitutional violation for Defendant Jukic to impound Plaintiff's vehicle after determining that Plaintiff was not licensed to operate a vehicle.
Moreover, the Complaint alleges that Defendant Jukic testified (presumably during Plaintiff's criminal proceeding) that individuals on the property that Plaintiff's vehicle was parked on or near asked how long Plaintiff “would be in the driveway” which implied “that [Plaintiff] was blocking them from getting in or out.” (Dkt. No. 1 at 4.) Hence, the vehicle was impeding the flow of traffic in and out of a private driveway and it was appropriate for Defendant Jukic to take the vehicle into custody based on the community caretaking function.
For each of these reasons, I recommend that Plaintiff's unlawful seizure claim with respect to the impoundment of Plaintiff's vehicle be dismissed for failure to state a claim upon which relief may be granted.
B. Unlawful Search Claims Against Defendants Detraglia and West
“The Supreme Court has long recognized that when police take a vehicle into custody, they may search the vehicle and make an inventory of its contents without need for a search warrant and without regard to whether there is probable cause to suspect that the vehicle contains contraband or evidence of criminal conduct.” United States v. Williams, 930 F.3d 44, 53 (2d Cir. 2019) (internal quotation marks omitted). Plaintiff has not pleaded that Defendants' conduct- searching the vehicle-is inconsistent with an inventory search. See Colorado v. Bertine, 479 U.S. 367, 374 (1987) (holding that reasonable inventory search regulations administered in good faith satisfy the Fourth Amendment); United States v. Williams, 930 F.3d at 54 (noting that inventory searches must be performed using standardized criteria or established routine).
As a result, I recommend that Plaintiff's unlawful search claims related to the inventory search of his vehicle be dismissed for failure to state a claim upon which relief may be granted.
C. Deliberate Indifference Claim
Plaintiff appears to allege that Defendant Jukic was deliberately indifferent to the unlawful search conducted by Defendants Detraglia and West (or that Defendant Jukic failed to intervene on Plaintiff's behalf during the unlawful search). (Dkt. No. 1 at 5.)
Section 1983 recognizes “that law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.” Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir. 2014) (internal quotations and citation omitted). However, “the absence of any underlying constitutional violations requires dismissal of [P]laintiff's failure to intervene claims.” Sharpe v. City of New York, 11-CV-5494, 2013 WL 2356063, at *9 (E.D.N.Y. May 29, 2013), aff'd, 560 Fed.Appx. 78 (2d Cir. 2014).
As set forth above in Part IV.B. of this Order and Report-Recommendation, I find that Plaintiff failed to allege facts plausibly suggesting an unlawful search conducted by Defendants Detraglia and West. As a result, I recommend that Plaintiff's failure to intervene claim against Defendant Jukic for failing to intervene during the search, be dismissed. Townsend v. Livingston Cnty., 19-CV-6636, 2023 WL 2457072, at *7 (W.D.N.Y. Mar. 10, 2023) (dismissing the plaintiff's failure to intervene claims where there was no surviving underlying misconduct).
D. False Arrest Claim
It is well-settled in this Circuit that a traffic stop based on a reasonable suspicion of a traffic violation comports with the Fourth Amendment. Hawthorne by Hawthorne v. Cnty. of Putnam, 492 F.Supp.3d 281, 295 (S.D.N.Y. 2020) (citing United States v. Stewart, 551 F.3d 187, 191 (2d Cir. 2009)).
The Complaint alleges that Defendant Jukic informed Plaintiff “he would be issuing [Plaintiff] citations for . . . Failure to Signal During a Turn.” (Dkt. No. 1 at 3.) The Complaint does not deny the allegation that Plaintiff committed a traffic violation or accuse Defendant Jukic of falsifying the allegation in order to create a pretext for a traffic stop. (See generally Dkt. No. 1.) The Complaint does not contain facts plausibly suggesting that Defendant Jukic lacked a reasonable suspicion to justify the traffic stop. (Id.)
As a result, I recommend that, to the extent Plaintiff's unlawful detention claim relates to the initial traffic stop, it be dismissed for failure to state a claim upon which relief may be granted.
To the extent that the false arrest claim relates to Defendant Jukic's arrest of Plaintiff based on evidence located during the inventory search of the vehicle, I recommend that it be dismissed.
As set forth above, the Complaint fails to allege facts plausibly suggesting that the inventory search was unconstitutional. Moreover, the Complaint fails to set forth what Plaintiff was arrested for or what evidence was allegedly located in the vehicle. (See generally Dkt. No. 1.)
However, there was probable cause for Defendant Jukic to arrest Plaintiff for the traffic offenses that the Complaint appears to concede were committed. Even where a traffic “violation may be reasonably characterized as a ‘minor' offense, it is well-established that an officer's direct observation of even a minor traffic violation is sufficient probable cause to arrest the violator.” Smart v. City of New York, 08-CV-2203, 2009 WL 862281, at *4 (S.D.N.Y. Apr. 1, 2009) (relying on United States v. Scopo, 19 F.3d 777, 781-782 (2d Cir. 1994) (officers had probable cause to stop and arrest defendant that they directly observed violate traffic laws by not signaling lane changes)); Fleming v. Esposito, 08-CV-4584, 2009 WL 10739921, at *4 (S.D.N.Y. Nov. 23, 2009) (noting that Section 155 of the New York Vehicle and Traffic Law states that “[f]or purposes of arrest without a warrant, pursuant to article one hundred forty of the criminal procedure law, a traffic infraction shall be deemed an offense” and that under N.Y. Crim. Proc. Law § 140, “a police officer may arrest a person for: (a) any offense when he [or she] has reasonable cause to believe that such person has committed such offense in his [or her] presence,” though this is a matter of state law rather than the constitutionally required standard); People v. Marsh, 20 N.Y.2d 98, 101 (N.Y. 1967) (holding that “traffic violation may serve as a predicate for an arrest without a warrant pursuant to [Vehicle and Traffic Law § 155]”); see People v. Miller, 539 N.Y.S.2d 809, 812 (N.Y. 1989) (“[B]ased on the defendant's failure to produce a driver's license and his admission that he was operating the car, an arrest of the defendant for driving without a license was also warranted.”).
The undersigned notes that “a claim for false arrest turns only on whether probable cause existed to arrest a defendant . . . it is not relevant whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of arrest.” Jaegly v. Couch, 439 F.3d at 154; see also Devenpeck v. Alford, 543 U.S. 146, 153-55 (2004) (“[A]n arresting officer's . . . subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.”).
As a result, I recommend that Plaintiff's false arrest claim against Defendant Jukic be dismissed.
V. OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to amend 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 amend 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.
Given that this is the Court's first review of Plaintiff's pleading and that Plaintiff is a pro se litigant, out of an abundance of caution, I recommend that he be permitted to replead the Complaint.
If Plaintiff chooses to file an amended complaint, he should note that the law in this circuit clearly provides that “‘complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.'” Hunt v. Budd, 895 F.Supp. 35, 38 (N.D.N.Y. 1995) (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)); accord Pourzancvakil v. Humphry, 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22, 1995) (Pooler, J.). Therefore, in any amended complaint, Plaintiff must clearly set forth facts that give rise to the claims, including the dates, times, and places of the alleged underlying acts, and each individual who committed each alleged wrongful act. In addition, the revised pleading should allege facts demonstrating the specific involvement of any of the named defendants in the constitutional deprivations alleged in sufficient detail to establish that they were tangibly connected to those deprivations. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Finally, Plaintiff is informed that any such amended complaint will replace the existing Complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.”).
ACCORDINGLY, it is
ORDERED that Plaintiff's second amended application to proceed in forma pauperis (Dkt. No. 8) is GRANTED; and it is further
ORDERED that the Clerk of the Court (1) provide the Superintendent of the facility that Plaintiff has designated as his current location with a copy of Plaintiff's inmate authorization form (Dkt. No. 9) and notify that official that Plaintiff has filed this action and is required to pay the Northern District of New York the entire statutory filing fee of $350.00 in installments, over time, pursuant to 28 U.S.C. § 1915; and (2) provide a copy of Plaintiff's inmate authorization form (Dkt. No. 9) to the Financial Deputy of the Clerk's office; and it is further respectfully
RECOMMENDED that the Court DISMISS the Complaint (Dkt. No. 1) WITH LEAVE TO REPLEAD pursuant to 28 U.S.C. § 1915(e)(2)(B), 1915A(b); 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).