Opinion
03 Civ. 826 (LTS) (KNF).
September 11, 2007
REPORT AND RECOMMENDATION
I. INTRODUCTION
Pro se plaintiff, Echo Dixon ("Dixon"), brought this action, pursuant to 42 U.S.C. § 1983, alleging that the rights secured to him by the Eighth and Fourteenth Amendments to the Constitution were violated by defendants New York City Correction Officer Jeffrey Ragland ("Ragland"), New York City Correction Officer Stephen Ryan ("Ryan") (collectively "Officer Defendants"), New York City Correction Captain James Salvio ("Salvio"), New York City Correction Captain Stephen Cottone ("Cottone"), and New York City Correction Captain Angel Luyanda ("Luyanda"). Dixon contends that, while he was an inmate at the Downstate Correctional Facility ("DCF"), he was transported to the New York State Supreme Court, New York County, and that his Eighth Amendment rights were violated when, upon arriving at the court, Ragland, Ryan and Salvio assaulted him physically, without justification, while Cottone and Luyanda "stood by laughing" and failed to stop the assault. Dixon also alleges that, as a result of the assault, he sustained significant injuries, which were not treated, for nearly thirteen hours, after the assault ended. Dixon maintains the defendants' failure to provide him with adequate medical care constitutes a second Eighth Amendment violation by the defendants.
The defendant's name is misspelled in the caption of the action.
Although Dixon's complaint does not identify the specific right(s) that might have been violated by the defendants, the alleged misconduct implicates Dixon's rights, under the Eighth and Fourteenth Amendments, to be free from the use of excessive force and to receive adequate medical care while in state custody.
Ragland, Ryan, Cotton and Luyanda have made a motion for summary judgment (Docket Entry No. 56). Cottone and Luyanda (the "moving defendants") contend: (1) the plaintiff has failed to state a claim; (2) they were not personally involved in the alleged deprivation of Dixon's constitutional rights; (3) they are shielded from liability by the doctrine of qualified immunity; (4) the plaintiff cannot demonstrate deliberate indifference by the defendants to his alleged "serious" medical needs; and (5) any claim of verbal harassment which the plaintiff may have attempted to assert in this litigation is not actionable under § 1983.
Salvio has not joined the motion because he was never served with the summons and complaint. In addition, the involvement of Ragland and Ryan in this motion is curious, inasmuch as they have no standing to make the instant motion, since judgment by default was entered against them. See Dixon v. Ragland, No. 03 Civ. 0826, 2005 WL 2649484, at *4 (S.D.N.Y. Oct. 14, 2005).
The defendants' sixth contention, that the plaintiff is not entitled to recover damages from Ragland and Ryan based on his excessive use of force claim, will not be addressed by the Court because, following the entry of a judgment by default against Ragland and Ryan, at the defendants' request, an inquest on damages was stayed pending the resolution of the instant motion.
The plaintiff opposes the moving defendants' motion for summary judgment. In doing so, he relies upon the submissions he made previously in support of his motion for a judgment by default.
As noted above, in responding to the defendants' motion for summary judgment, the plaintiff has requested that the submissions he made in support of his motion for a judgment by default against the defendants be considered his opposition to the instant motion. By doing so, the plaintiff has not complied with Local Civil Rule 56.1(c) of this court. However, "[t]he district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules. See Holtz v. Rockefeller, 258 F.3d 62, 73 (2d Cir. 2001). In the instant case, the Court finds it appropriate to rely on Dixon's earlier submissions, which contest many of the facts asserted in the defendants' Local Civil Rule 56.1 statement.
II. BACKGROUND
Early on the morning of December 4, 2002, members of the New York City Department of Correction, Emergency Service Unit ("ESU"), transported the plaintiff from DCF, in Fishkill, New York, to Manhattan, so that he could appear in the New York State Supreme Court, New York County. The plaintiff contends that, while being transported, he initiated a conversation with an inmate who was sitting near him in the ESU vehicle. In response to the conversation, Dixon recalls that Ragland stated to him: "shut the fuck up." Dixon asked Ragland not to speak to him in such a manner.At approximately 9:20 a.m., after arriving in Manhattan, the plaintiff was taken to a holding cell, where his restraints were removed. The moving defendants contend that, after Dixon's restraints were removed, he punched Ragland's face, without provocation. According to the plaintiff, Ragland punched him first, without provocation. In response, he hit Ragland about the face, knocking Ragland's eyeglasses to the ground. Dixon alleges his conduct was a reflexive response to Ragland's attack. Dixon recalls that, after he hit Ragland, Ryan and Ragland wrestled him to the ground and "proceeded to kick and punch [him] in the ribs, back, forehead, and [to] stomp [his] head to the floor." While Dixon was on the ground, Salvio sprayed his face with a chemical agent, and handcuffs were reapplied to restrain Dixon. Dixon contends a chemical agent should not have been used to subdue him, because he suffers from asthma.
The defendants contend Ragland, Ryan and Salvio used the minimum force necessary to subdue the plaintiff and to restore institutional security after the plaintiff, who had been released from mechanical restraints, struck Ragland. The plaintiff contends that, while he was being assaulted, Cottone and Luyanda observed what was happening, laughed and failed to intervene to stop the assault.
As a result of the assault, the plaintiff alleges he sustained several injuries and that the defendants failed to provide him with medical treatment. According to Dixon, he was not decontaminated or afforded medical attention until he returned to DCF, at approximately 11:00 p.m., that evening. The defendants maintain that Dixon was decontaminated while in their custody, was given a change of clothing and, further, that Dixon declined to visit the defendants' medical clinic or to be examined by medical personnel associated with them.
When the plaintiff returned to DCF on the night of the alleged assault, DCF medical personnel, who examined Dixon, observed that he had suffered minor contusions to his face and reported that Dixon complained of lower back pain. As a result, Dixon was prescribed Ibuprofen.
On December 5, 2002, the plaintiff failed to appear for a follow-up medical appointment at DCF's medical clinic. On December 6, 2002, Dixon was seen by DCF medical personnel, due to his complaints of pain in his lower back. On December 10, 2002, a radiographic examination of the plaintiff's lumbosacral spine revealed normal vertebral body alignment and curvature. Furthermore, the bodies, arches and pedicales were intact and the intervertebral disc spaces were well maintained. In addition, no compression fracture, bone destruction or significant arthritic changes to the plaintiff's back were observed. Moreover, no fractures of the plaintiff's facial bones or other osseous abnormality were discovered.
On February 11 and February 12, 2003, the plaintiff was seen by DCF medical clinic personnel, after he complained of backache and head pain. Dixon attributed the backache and head pain to an "assault by staff [at New York City's] Riker's [Island jail facility] one day ago." However x-rays taken of Dixon revealed no deformity in or fracture of the plaintiff's back or facial bones.
In April 2003, the plaintiff reported to prison personnel that he had cysts on several parts of his body. The plaintiff's medical records indicate that, in early 2005, a cyst was detected in his right nostril. The cyst was attributed to dental problems. However, Dixon's medical records also show that, about seven months prior to the alleged assault by the defendants, a cyst was found in the plaintiff's right nostril.
III. DISCUSSION
Summary Judgment
Summary judgment may be granted in favor of the moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). When considering a motion for summary judgment, "[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles. Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356).
The moving party bears the burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552 (1986). Once the moving party has satisfied its burden, the non-moving party must come forth with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511 (1986).
In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S. Ct. at 1355. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510. The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Id., at 256, 106 S. Ct at 2514. Summary judgment should only be granted if no rational jury could find in favor of the non-moving party. See Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 721 (2d Cir. 1994).
Where, as here, a litigant appears before the court pro se, that litigant's submissions should be read liberally and interpreted so as "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). However, this does not mean that the pro se litigant is released from the typical requirements of summary judgment. A "bald assertion" made by thepro se litigant that is not supported by evidence will not be sufficient to overcome a motion for summary judgment. See Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995).
Section 1983"To state a claim under § 1983, a plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citing Dwares v. City of New York, 985 F.2d 94, 98 [2d Cir. 1993]). In the instant case, it is undisputed that the conduct complained of by the plaintiff is alleged to have been committed by persons acting under color of state law,to wit, New York City corrections personnel. Therefore, Dixon has surmounted the first handle he must overcome to state a § 1983 claim.
Eighth Amendment Claims
The plaintiff contends Cottone and Luyanda violated his Eighth Amendment rights by: (1) failing to intervene when Ragland, Ryan and Salvio used excessive force against him; and (2) failing to provide him with medical care after the above-described assault ended.
1. Excessive Force: Failure to Intervene
"The Eighth Amendment, which applies to the states through the Due Process Clause of the Fourteenth Amendment . . . prohibits the infliction of cruel and unusual punishments, U.S. Const. amend. VIII, including the unnecessary and wanton infliction of pain'. . . ." Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (citation omitted). "[T]he Eighth Amendment . . . serves as the primary source of substantive protection to convicted prisoners in cases . . . where the deliberate use of force is challenged as excessive and unjustified." Whitley v. Albers, 475 U.S. 312, 327, 106 S. Ct. 1078, 1088 (1986).
"It is widely recognized that all 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. Allen v. City of New York, 480 F. Supp. 2d 689, 694 (S.D.N.Y. 2007) (quoting Anderson v. Branen, 17 F.3d 552, 557 [2d Cir. 1994]). "An officer who does not personally inflict the injury at the core of an excessive use of force claim may still be liable under § 1983 where the officer fails to intervene to prevent the harm, in spite of a 'realistic opportunity' to do so, O'Neill [v. Krezminski, 839 F.2d 9, 11-12 (2d Cir. 1988)], and 'observes or has reason to know . . . that excessive force is being used.'" Id. (Quoting Anderson, 17 F.3d at 557). However, an individual cannot be held liable for damages under § 1983 "merely because he held a high position of authority," a person holding such a position can be held liable only if he was personally involved in the alleged deprivation of a constitutional right. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). In this context, personal involvement means direct participation, or failure to remedy any alleged wrongdoing after learning of it, or creation of a policy or custom under which unconstitutional practices were allowed to occur, or gross negligence in managing subordinates. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994).
In the case at bar, the plaintiff maintains that Ragland, Ryan and Salvio used excessive force on him and that Cottone and Luyanda "stood by laughing" and "gave no orders . . . to stop." Cottone and Luyanda contend they were not present during the alleged assault and, therefore, they were not personally involved in the alleged assault and cannot be held liable to the plaintiff for the deprivation of his civil rights he asserts he suffered. To support their position, the defendants rely on reports prepared by the Officer Defendants and other witnesses to the December 4, 2002 incident, none of which indicates that Cottone or Luyanda witnessed the confrontation. See Dawkins' Dec. Ex. C-H. However, evidence in the record, upon which the plaintiff relies, rebuts the documentary evidence upon which the defendants rely. For example, in the affidavit Dixon submitted, in support of his motion for a judgment by default, he states,inter alia, that Cottone and Luyanda witnessed the assault he endured and failed to intervene. The Court is mindful that sworn statements of fact, made under penalty of perjury, in an affidavit, must be treated as evidence when rendering a determination on a summary judgment motion. See Scott v. Coughlin, 344 F.3d 282, 289 (2d Cir. 2003). In addition, while testifying under oath at his deposition, Dixon described the physical appearances of Cottone and Luyanda on the day of the incident, stated where Cottone and Luyanda were standing during the alleged assault and recounted what Cottone and Luyanda were doing during the alleged assault. See Pl.'s Conclusions of Law in Support of Default Judgment, Ex. B., Pl.'s Aff. at ¶ 19.
Whether Cottone and Luyanda were present during the December 4, 2002 incident is a material issue of fact in dispute. Since the parties have presented conflicting evidence about who was present during the incident, the Court finds that, in such a circumstance, summary judgment on the plaintiff's claim, that Cottone and Luyanda failed to intervene while correction personnel employed excessive force against him, is inappropriate.
2. Failure to Provide Medical Care
A person, who is incarcerated, is entitled to receive adequate medical care from the officials who have him in custody. See Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994); see also Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290 (1976). Deliberate indifference to the serious medical needs of a prisoner constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment and states a claim under 42 U.S.C. § 1983. Indifference may be demonstrated by prison officials who intentionally deny or delay a prisoner's access to medical care See id., at 104-105, 97 S. Ct. at 291.
In order for a plaintiff to satisfy his burden, when alleging that corrections officials have shown deliberate indifference to his serious medical needs, he must establish two things. "First, he must establish, objectively, that his medical needs were sufficiently serious. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). Medical needs are sufficiently serious, for purposes of an Eighth Amendment claim, when they present "a condition of urgency, one that may produce death, degeneration, or extreme pain." Id. (Citation omitted). Moreover, "[i]n cases where a claim is based on a delay or interruption in treatment, the Second Circuit focuses on the delay in addition to the seriousness of the prisoner's underlying medical condition in determining whether the deprivation is sufficiently serious."Pressley v. Green, No. 02 Civ. 5261, 2004 WL 2978279, at *4 (S.D.N.Y. Dec. 21, 2004).
"Second, [the plaintiff] must establish a subjective component — that Defendants 'kn[ew] of and disregard[ed] an excessive risk to [his] health or safety.'" Chatin v. Artuz, No. 95 Civ. 7994, 1999 WL 587885, at *2 (S.D.N.Y. Aug. 4, 1999) (alterations in original) (quoting Farmer, 511 U.S. at 837, 114 S. Ct. at 1979). "With respect to the subjective showing, prison officials are not liable 'if they responded reasonably to a known risk, even if the harm ultimately was not averted.'" Chatin, 1999 WL 587885, at *2 (quoting Farmer, 511 U.S. at 826, 114 S. Ct. at 1974).
Dixon contends that, as a result of the assault he suffered at the hands of Ragland, Ryan and Salvio, he sustained the following injuries: lacerations to his left eye and lip; a swollen mouth; pain in and bruises on his lower back; swollen and bruised ribs; and headaches. In addition, Dixon maintains he: (a) experienced regurgitation, as a result of digesting the chemical agent Salvio sprayed on his face; (b) suffered injuries to his spine; and (c) had blurred vision in his left eye. See Complaint at 5. As discussed earlier in this writing, according to Dixon, the defendants denied him medical care for his injuries, in violation of the Eighth Amendment.
In several submissions made after the plaintiff filed his complaint, Dixon contends that, as a result of the alleged assault, he suffered from dental problems and developed a cyst in his right nostril.
The moving defendants contend the plaintiff was offered medical treatment immediately after he was subdued and restrains were reapplied to him, but Dixon refused medical treatment. In support of their claim, Cottone and Luyanda rely on the following documentary evidence: (1) the December 4, 2002 Injury to Inmate Report, which indicates that at 10:30 a.m., on December 4, 2002, the plaintiff reported for medical attention at the Manhattan Detention Complex ("MDC") but "refused to be seen by medical staff," see Dawkins' Dec. Ex. I; and (2) a Use of Force Witness Report, which indicates the plaintiff was "removed from area by B.B.K.C. staff for immediate decontamination and medical [t]reatment," see Dawkins' Dec. Ex. G.
In addition to asserting that the plaintiff was provided with prompt medical attention, the defendants contend the plaintiff sustained minor injuries only. According to the defendants, the minor nature of Dixon's injuries is evident from the: (1) December 4, 2002 DCF medical clinic records indicating the plaintiff had minor contusions to his face and complained of lower back pain, see Dawkins' Dec. Ex. P. at 265; (2) DCF medical clinic records indicating that, on December 5, 2002, the plaintiff failed to appear for a follow-up medical clinic appointment, see Dawkins' Dec. Ex. P. at 265; and (3) x-rays taken of Dixon on December 10, 2002, and February 12, 2003, indicating no abnormalities in the plaintiff's spine or face, see Dawkins' Dec. Ex. P. at 287; 288-290.
A dispute exists about whether the plaintiff received medical treatment at MDC. However, whether Dixon received medical treatment at MDC is not a material fact in dispute. This is so because the plaintiff's injuries were not serious. The plaintiff's injuries were described by DCF medical personnel, on the night of the December 4, 2002 incident, as "minor contusions to [the] face" and "lower back pain." See Dawkins' Dec. Ex. P. at 265. Moreover, medical records generated for Dixon subsequent to December 4, 2002, do not indicate Dixon suffered a serious injury or that he experienced severe pain. Dixon has not offered any evidence that contradicts the information in DCF's medical records and establishes that the injuries he suffered were serious.
Although Dixon alleges a delay in treating his injuries occurred, "[a] delay in treatment does not automatically indicate a violation of a prisoner's Eighth Amendment rights, unless the delay reflects deliberate indifference to a serious risk of health or safety, to a life-threatening or fast-degenerating condition or to some other condition of extreme pain that might be alleviated through reasonably prompt treatment." Rodriguez v. Mercado, No. 00 Civ. 8588, 2002 WL 1997885, at *9 (S.D.N.Y. Aug. 28, 2002) (Report and Recommendation adopted Oct. 3, 2002) (finding plaintiff, who was seen by a nurse eight to nine hours after alleged excessive force incident, failed to demonstrate an Eighth Amendment claim for failure to receive medical treatment) (quoting Amaker v. Coombe, No. 96 Civ. 1622, 2002 WL 523388, at *8 [S.D.N.Y. Mar. 29, 2002]). Therefore, since the plaintiff's DCF medical records demonstrate that his injuries did not constitute a "condition of urgency, one that may produce death, degeneration, or extreme pain," Hathaway, 37 F.3d at 66, the Court finds that even if a thirteen-hour delay in providing the plaintiff medical assistance occurred — a matter which is in dispute — he cannot meet the objective prong of his Eighth Amendment claim that is premised on the allegation that Cottone and Luyanda failed to provide him with prompt medical care and, thus, were deliberately indifferent to his serious medical needs.
Moreover, even if the plaintiff could demonstrate that he suffered sufficiently serious injuries or that material issues of fact exist relating to the severity of his injuries, the plaintiff has failed to alleged that Cottone and Luyanda acted with the requisite culpable mental state. That is to say that each knew of and disregarded an excessive risk to Dixon's health or safety. See Farmer, 511 U.S. at 837-838, 114 S. Ct. 1979. Inasmuch as the plaintiff has not made any allegations that Cottone and Luyanda denied him medical treatment knowingly and intentionally, granting them summary judgment, on Dixon's second Eighth Amendment claim, is warranted.
Qualified Immunity
The moving defendants contend they are shielded from liability to Dixon by the doctrine of qualified immunity. Since it appears that the moving defendants' motion for summary judgment should be granted with respect to the plaintiff's allegation that Cotton and Luyanda were deliberately indifferent to his serious medical needs, the doctrine of qualified immunity will be analyzed only with respect to Dixon's contention that Cottone and Luyanda failed to intervene during the alleged assault.
The doctrine of qualified immunity shields "government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). "Even where the plaintiff's federal rights and the scope of the official's permissible conduct are clearly established, the qualified immunity defense protects a government actor if it was 'objectively reasonable' for him to believe that his actions were lawful at the time of the challenged act."Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (quotingAnderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 3039 (1987).
When analyzing a claim for qualified immunity in a § 1983 action, a court must first determine whether the plaintiff has stated that a constitutional violation occurred. See Scott v. Harris, ___ U.S. ___, 127 S. Ct. 1769, 1774 (2007). Thereafter, the court must determine whether the constitutional right the plaintiff alleges was violated was clearly established at the time of the alleged wrongful act. If so, then the court may proceed to determine whether qualified immunity shields a government actor from liability for damages. See Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156).
"To overcome the defense of qualified immunity for failure to intercede where others have engaged in excessive force, a plaintiff must show that the failure to intercede permitted fellow officers to violate an individual's clearly established rights of which a reasonable officer would have known, and 'the failure to intercede must be under circumstances making it objectively unreasonable for him to believe that his fellow officers' conduct did not violate those rights.'" Allen, 480 F. Supp. 2d at 695 (quoting Speights v. City of New York, Nos. 98 Civ. 4635, 98 Civ. 4636, 2001 WL 797982, at *6 [E.D.N.Y. June 18, 2001]).
A material issue of fact exists: whether Cottone and Luyanda were in or about the vicinity where the assault on Dixon is alleged to have occurred and witnessed the incident. This disputed matter must be determined by a jury. Until that disputed material fact is determined, the Court cannot analyze the defendants' asserted qualified immunity defense. Therefore, at this juncture in the litigation, a grant of summary judgment for the moving defendants, based on the doctrine of qualified immunity, is not warranted.
IV. RECOMMENDATION
For the reasons set forth above, the moving defendants' motion for summary judgment (Docket Entry No. 56) should be: (1) denied with respect to the plaintiff's claim that Cottone and Luyanda failed to intervene, while Ragland, Ryan and Salvio used excessive force against him; and (2) granted with respect to the plaintiff's claim that Cottone and Luyanda displayed deliberate indifference to his serious medical needs. The Court recommends further that the action against Salvio be dismissed, pursuant to Fed.R.Civ.P. 4(m), because the plaintiff failed to effect service of the summons and complaint on Salvio timely.
The Court also recommends that counsel to the defendants be directed to show cause why she has not violated Fed.R.Civ.P. 11 by filing a motion for summary judgment on behalf of the defendants against whom a judgment by default had been entered by the court.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) 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 Laura T. Swain, 40 Centre Street, Room 410, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).