Opinion
1:24-cv-0311 (AMN/TWD)
04-19-2024
NICHOLAS OUDEKERK, Plaintiff, v. NICHOLAS LEHOISKY, Defendant.
NICHOLAS OUDEKERK Plaintiff
NICHOLAS OUDEKERK Plaintiff
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff Nicholas Oudekerk (“Plaintiff”) asserting claims pursuant to 42 U.S.C. § 1983 (“Section 1983”), together with an application to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2.) Plaintiff, who is incarcerated at Warren County Correctional Facility, has not paid the filing fee for this action.
Plaintiff currently has seven other actions pending in this District. See Oudekerk v. Glens Falls PD Officer Doe 1, No. 23-cv-0288 (BKS/TWD) (N.D.N.Y. filed Mar. 3, 2023); Oudekerk v. Hearing Officer Doe, No. 24-cv-0111 (AMN/CFH) (N.D.N.Y. filed Jan. 23, 2024); Oudekerk v. Doe #1, No. 24-cv-0113 (DNH/MJK) (N.D.N.Y. filed Jan. 23, 2024); Oudekerk v. Thomas, No. 24-cv-0109 (AMN/TWD) (N.D.N.Y. filed Jan. 23, 2024); Oudekerk v. Springer, No. 9:24-cv-0310 (DNH/ML) (N.D.N.Y. filed Mar. 4, 2024); Oudekerk v. Canale, No. 24-cv-0408 (LEK/DJS) (N.D.N.Y. filed Mar. 25, 2024); and Oudekerk v. Eldrige, No. 24-cv-0309 (FJS/CFH) (N.D.N.Y. filed Mar. 3, 2024).
I. 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)).
Section 1915(g) prohibits a prisoner from proceeding IFP where, absent a showing of “imminent danger of serious physical injury,” a prisoner has filed three or more actions or appeals that were subsequently dismissed as frivolous, malicious, or failing to state a claim upon which relief may be granted. 28 U.S.C. § 1915(g). Based upon the Court's review of Plaintiff's litigation history on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) Service, it does not appear that Plaintiff has accumulated three strikes for purposes of 28 U.S.C. § 1915(g).
Upon review, Plaintiff's IFP application is properly completed and signed, and demonstrates economic need. See 28 U.S.C. § 1915(a)(2). He has also filed the inmate authorization form required in this District. (Dkt. No. 2-1.) Accordingly, the IFP application is granted. (Dkt. No. 2.) II. SUFFICENCY OF THE COMPLAINT
A. Standard of Review
Section 1915(e) directs that, when a plaintiff seeks to proceed IFP, “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)(B).
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).
Likewise, under 28 U.S.C. § 1915A, a court must review any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity” and must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per curiam) (Section 1915A applies to all actions brought by prisoners against government officials even when plaintiff paid the filing fee); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (stating that both sections 1915(e) and 1915A are available to evaluate prisoner pro se complaints).
In reviewing a pro se complaint, the court has a duty to show liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should exercise “extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal citations omitted). Therefore, 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).
“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) (citing Twombly, 550 U.S. at 556). Although 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.” Id. “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).
“[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 ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Thus, a pleading that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Id. (internal quotation marks and alterations omitted).
B. Summary of the Complaint
Plaintiff asserts allegations of wrongdoing related to his arrest on October 20, 2023. (See generally, Dkt. No. 1.) Plaintiff claims that on October 20, 2023, defendant Glens Falls Police Officer Nicholas Lehoisky (“Defendant”) falsely arrested him and maliciously prosecuted him for burglary in the second degree, contempt in the first degree, and aggravated family offense first degree. Id. at 5-6. As a result, Plaintiff was “unlawfully incarcerated” at the Warren County Jail for more than five months. Id. at 7.
Plaintiff utilized the Court's form complaint for civil rights actions under 42 U.S.C. § 1983 (“Section 1983”) and attached additional pages to elaborate upon his claims. (Dkt. No. 1.) Citations to Plaintiff's complaint will refer to the pagination generated by CM/ECF, the Court's electronic filing system. 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.
According to Plaintiff, the order of protection at issue was “exspired” because it “was put in place over 8 years ago.” Id. Furthermore, he “never unlawfully entered the building” because the sole resident gave him the security code to enter through the front door. Id. at 5. Indeed, Plaintiff told “the officer . . . down the street” it was “exspired” and “even gave the officer a copy of § 530.13 proving the order of protection could not legally be valid at the time on 10/29/23 witch in fact it wasnt.” Id at 6. Plaintiff claims Defendant maliciously prosecuted him “by filing the false charges.” Id. at 7. Defendant even “looked up” the law for § 530.13 while at the Glens Fall Police Department. Id.
Plaintiff claims the October 20, 2023, false arrest was “to retaliate” against Plaintiff for the lawsuit he filed against Defendant's “friends & co workers at the Glens Fall Police Department,” Oudekerk v. Glens Falls PD Officer Doe 1, No. 23-cv-0288 (BKS/TWD) (N.D.N.Y. filed Mar. 3, 2023) (“Oudekerk I”).
In Oudekerk I, Plaintiff brings Fourth Amendment false arrest/false imprisonment and malicious prosecution claims against Glens Falls Police Officers Foo and Lyons based on Plaintiff's arrest on February 18, 2020. (See Oudekerk I, Dkt. Nos. 41, 44.)
Liberally construed, the complaint asserts the following claims against Defendant in his individual and official capacity: (1) a false arrest and false imprisonment claim pursuant to the Fourth Amendment; (2) a malicious prosecution claim pursuant to the Fourth Amendment; (3) a claim of retaliation pursuant to the First Amendment; (4) a cruel and unusual punishment claim pursuant to the Eighth Amendment; and (5) a due process claim pursuant to the Fourteenth Amendment. Id. at 8. Plaintiff seeks monetary and declaratory relief. Id. at 9. For a complete statement of Plaintiff's claims, reference is made to the complaint.
III. ANALYSIS
Plaintiff asserts claims pursuant to Section 1983, which establishes a cause of action for ‘“the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States.” German v. Fed. Home Loan Mortg. Corp., 885 F.Supp. 537, 573 (S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)) (footnote omitted). “Section 1983 itself creates no substantive rights, [but] . . . only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted).
To state a valid claim under Section 1983, a 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. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997). To establish liability under the statute, a plaintiff must plead that each government official defendant violated the Constitution through that official's own individual actions. Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020).
A. Official Capacity Claims
Insofar as Plaintiff asserts official capacity claims against Defendant, such claims are, in effect, claims against the City of Glens Falls. See generally Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 n.55 (1978) (explaining “official-capacity suits generally represent . . . another way of pleading an action against an entity of which an officer is an agent”).
“To hold a municipality liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Lucente v. Cnty. of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020). “Absent such a custom, policy, or usage, a municipality cannot be held liable on a respondeat superior basis for the tort of its employee.” Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012); Los Angeles Cnty., Cal. 562 U.S. 29, 36 (2010) (A municipality may not be held liable solely because it employs a tortfeasor.).
There is no basis for municipal liability alleged in the complaint. Plaintiff essentially complains of a single incident, during which an officer employed by the Glens Fall Police Department did not act properly. See, e.g. Flagg v. NYS Division of Parole, No. 5:19-CV-0886 (TJM/ATB), 2019 WL 5002215, at *5 (N.D.N.Y. Aug. 15, 2019) (citing DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998)) (“A single incident, particularly if it involved individuals below the policy-making level is insufficient to state a Monell claim.”), report-recommendation adopted, 2019 WL 4963112 (N.D.N.Y. Oct. 8, 2019). There is no indication that Plaintiff can assert a policy or custom which would support municipal liability based on these facts.
Accordingly, the Court recommends any “official capacity” claims asserted against Defendant be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A for failure to state a claim upon which relief may be granted.
B. False Arrest and False Imprisonment
A Section 1983 claim for false arrest or false imprisonment “rest[s] on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). “False arrest is simply false imprisonment accomplished by means of an unlawful arrest.” Jenkins v. City of N.Y., 478 F.3d 76, 88 n.10 (2d Cir. 2007). Such claims are one and the same because “[f]alse arrest and false imprisonment overlap; the former is a species of the latter.” Wallace v. Kato, 549 U.S. 384, 388 (2007).
The substantive elements of a false arrest claim under Section 1983 are “substantially the same as [for] a claim for false arrest under New York law.” Id. To establish a claim for false arrest and imprisonment, a plaintiff must prove: “(1) the defendant intended to confine plaintiff; (2) plaintiff was conscious of the confinement; (3) did not consent to such confinement; and (4) the confinement was not otherwise privileged.” Savino v. City of N. Y., 331 F.3d 63, 75 (2d Cir. 2003).
Mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, see e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the Court recommends that Plaintiff's Fourth Amendment false arrest/false imprisonment claim survives sua sponte review and requires a response. The Court expresses no opinion as to whether this claim can withstand a properly filed dispositive motion.
Only those events occurring pre-arraignment are properly considered part of Plaintiff's false arrest/false imprisonment claim, as opposed to his malicious prosecution claim, discussed below. A false arrest claim “consists of detention without legal process ....” Wallace, 549 U.S. at 389. As a result, the false arrest ends once the arrestee is arraigned and subject to legal process, and thereafter any claim of unlawful detention forms part of the entirely separate tort of malicious prosecution. Id. at 389-390. “If there is a false arrest claim, damages for that claim cover the time for detention up until issuance of process or arraignment, but not more. From that point on, any damages recoverable must be based on a malicious prosecution claim and on the wrongful use of judicial process rather than detention itself.” Id. at 390 (citation omitted).
C. Malicious Prosecution
To establish a claim under § 1983 for malicious prosecution, the plaintiff must show: (1) the initiation or continuation of a criminal proceeding by the defendant against him; (2) the termination of that proceeding in his favor; (3) a lack of probable cause; (4) that actual malice motivated the defendant's actions; and (5) a sufficient post-arraignment liberty restraint for Fourth Amendment purposes. Harris v. Tioga Cnty., 663 F.Supp.3d 212, 237 (N.D.N.Y. 2023) (citing Dettelis v. Sharbaugh, 919 F.3d 161, 163-64 (2d Cir. 2019) and Buari v. City of N.Y., 530 F.Supp.3d 356, 383 (S.D.N.Y. 2021)).
“To demonstrate a favorable termination of a criminal prosecution for purposes of the Fourth Amendment claim under § 1983 for malicious prosecution, a plaintiff [must] show that his prosecution ended without a conviction.” Thompson v. Clark, 596 U.S. 36, 39 (2022); see Spak v. Phillips, 857 F.3d 458, 462 (2d Cir. 2017) (“A ‘favorable termination' does not occur until the prosecution against the plaintiff has ‘conclusively' ended.”).
Here, Plaintiff claims the “arrest resulted in me being unlawfully incarcerated at the Warren County Jail from 10/20/23 to the date of when I was released over 5 months later[.]” But Plaintiff has failed to allege a favorable termination. (See Dkt. No. 1 at 7.) Therefore, the Court recommends the malicious prosecution be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A for failure to state a claim upon which relief may be granted.
D. Retaliation
To state a claim of retaliation under the First Amendment, a plaintiff must allege facts plausibly suggesting the following: (1) the speech or conduct at issue was “protected;” (2) the defendants took “adverse action” against the plaintiff - namely, action that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights; and (3) there was a causal connection between the protected speech and the adverse action - in other words, that the protected conduct was a “substantial or motivating factor” in the defendant's decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); see also Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004). “[A] complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the pleadings alone.” Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)).
As to the first element of a retaliation claim, Plaintiff has sufficiently plead that he engaged in protected speech when he filed Oudekerk I. However, even assuming Plaintiff suffered an adverse action, the complaint lacks facts suggesting a causal connection between the protected speech and the adverse action. “As a general matter, it is difficult to establish one defendant's retaliation for complaints against another defendant.” Hare v. Hayden, No. 09-CV-3135, 2011 WL 1453789, at *4 (S.D.N.Y. Apr. 14, 2011).
Here, Plaintiff has not plead facts related to how Defendant became aware of Oudekerk I or any connection between Defendant and the lawsuit. See id. at *4-5 (holding that the plaintiff “fail[ed] to establish that [the defendant] had a motive to retaliate” against him for complaints filed against another corrections officer). Thus, there is no basis for the Court to infer a causal connection between the alleged adverse action and protected conduct. Accordingly, Plaintiff has not plead a viable retaliation claim. See Guillory v. Haywood, No. 13-CV-1564 (MAD/TWD), 2015 WL 268933, at *23 (N.D.N.Y. Jan. 21, 2015) (concluding that the plaintiff failed to allege facts identifying the grievances and lawsuits from which the defendant's awareness could be inferred).
The Court notes Plaintiff did not identify the Doe defendants in Oudekerk I as Lyons and Foo until January 30, 2024, and summons were issued March 21, 2024. (See Oudekerk I, Dkt. Nos. 41, 44, 46.) To date, it does not appear defendants Lyons and Foo have been served with the amended complaint in Oudekerk I.
Therefore, the Court recommends dismissing the retaliation claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted.
E. Cruel and Unusual Punishment
The Eighth Amendment protects against cruel and unusual punishment. See U.S. Const. amend. VIII. The protections of the Eighth Amendment “only apply to a person who has been criminally convicted and sentenced; they do not apply to the conduct of police officers in connection with the investigation and arrest of suspects prior to conviction and sentencing.” Spicer v. Burden, 564 F.Supp.3d 22, 31 (D. Conn. 2021) (citing Whitley v. Albers, 475 U.S. 312, 318-19 (1986)); City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).
Thus, to the extent Plaintiff has alleged an Eighth Amendment claim of “cruel and unusual punishment/arbitrary punishment”, the Court recommends that it be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted.
F. Due Process
The Fourteenth Amendment provides, in relevant part, that “[n]o state shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Two constitutional doctrines emerge from the Due Process Clause: procedural due process, and substantive due process.
Here, Plaintiff generally claims Defendant violated his Fourteenth Amendment “right to life, liberty & due process right against deliberate indifference & arbitrary punishment unlawful imprisonment, unlawful detainment.” (Dkt. No. 1 at 9.) It is unclear whether he is alleging the violation of his procedural or substantive due process rights, or both, so the Court addresses both.
Upon review, Plaintiff's substantive and/or procedural due process claims are predicated on the exact same factual basis as his claims for false arrest, false imprisonment, and malicious prosecution. Because Plaintiff's due process claims are merely duplicative of his other claims that are explicitly covered by the Fourth Amendment, he cannot bring an additional claim for violation of his right to substantive or procedural due process under the Fourteenth Amendment. See Perry v. Kozuch, No. 14-cv-1026, 2017 WL 1025663, at *6 (D. Conn. Mar. 16, 2017) (“As a matter of law, [plaintiff] cannot bring a Fourteenth Amendment procedural due process claim based on facts that could support a Fourth Amendment false arrest or false imprisonment claim.”); see also Jackson ex rel. Jackson v. Suffolk Cnty., 87 F.Supp.3d. 386, 399 (E.D.N.Y. 2015) (“Because the Fourth Amendment provides the source for a claim under Section 1983 premised upon an allegedly false arrest, false imprisonment, or malicious prosecution, plaintiffs cannot state a substantive due process claim against defendants based on such conduct.”).
Even if the Court were to review Plaintiff's allegations within the framework of Fourteenth Amendment substantive due process, Plaintiff's allegations do not plausibly state Defendant's conduct “shocks the conscience” so as to rise to the level of a violation of his substantive due process rights. See Spear v. Town of W. Hartford, 954 F.2d 63, 68 (2d Cir. 1992) (“Government conduct may be actionable under section 1983 as a substantive due process violation if it ‘shocks the conscience.'”) (quoting Rochin v. California, 342 U.S. 165, 172 (1952)); Lombardi v. Whitman, 485 F.3d 73, 81 (2d Cir. 2007) (“In order to shock the conscience and trigger a violation of substantive due process, official conduct must be outrageous and egregious under the circumstances; it must be truly brutal and offensive to human dignity.”).
Thus, to the extent Plaintiff is attempting to bring either a substantive or procedural due process claim under the Fourteenth Amendment, the Court recommends dismissing the claim as duplicative.
IV. OPPORTUNITY TO AMEND
Generally, before the Court dismisses a pro se complaint or any part of the complaint sua sponte, the Court should afford the plaintiff the opportunity to amend at least once; however, leave to re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).
Here, the Court recommends that Plaintiff be given an opportunity to amend to cure the deficiencies identified above.
Any amended complaint filed by Plaintiff must be a complete pleading which will supersede and replace the original complaint in its entirely. Any amended complaint must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Any such amended complaint should specifically identify the legal theory or theories that form the basis for his claim.
V. CONCLUSION
For the reasons stated above, the Court finds only Plaintiff's Section 1983 Fourth Amendment false arrest/false imprisonment claim against Defendant, in his individual capacity, survives sua sponte review and requires a response.
WHEREFORE, it is hereby
ORDERED that Plaintiff's application to proceed IFP (Dkt. No. 2) is GRANTED; and it is further
Plaintiff will still be required to pay fees that he may incur in this action, including copying and/or witness fees.
ORDERED that the Clerk provide the Superintendent of the facility, designated by Plaintiff as his current location, with a copy of Plaintiff's inmate authorization (Dkt. No. 2), and notify the official that this action has been filed and that Plaintiff is required to pay the Northern District of New York the statutory filing fee of $350.00 in installments, over time, pursuant to 28 U.S.C. § 1915; and it is further
ORDERED that the Clerk of the Court provide a copy of Plaintiff's inmate authorization (Dkt. No. 2) to the Financial Deputy of the Clerk's Office; and it is further
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be ACCEPTED for filling to the extent that Plaintiff's Fourth Amendment false arrest/false imprisonment claim against defendant Lehoisky, in his individual capacity, survives initial review and requires a response; and it is further
RECOMMENDED that Plaintiff's other claims be DISMISSED WITH LEAVE TO AMEND; and it is further
RECOMMENDED that the Clerk be directed to issue a summons and forward it along with a copy of the complaint to the United States Marshal for service upon defendant Lehoisky; and it is further
RECOMMENDED that a response to the complaint be filed by defendant Lehoisky, or counsel, as provided for in the Federal Rules of Civil Procedure; and it is further
ORDERED that all pleadings, motions and other documents relating to this action be filed with the Clerk of the United States District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St., Syracuse, New York 13261-7367. Plaintiff must comply with any requests by the Clerk's Office for any documents that are necessary to maintain this action. All parties must comply with Local Rule 7.1 of the Northern District of New York in filing motions. All motions will be decided on submitted papers without oral argument unless otherwise ordered by the Court. Plaintiff is also required to promptly notify, in writing, the Clerk's Office and all parties or their counsel of any change in Plaintiff's address; his failure to do so may result in the dismissal of this action ; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Decision and Order, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
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. 6(a)(1)(C).
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) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
IT IS SO ORDERED.