Opinion
Civil Action No. 9:14-CV-0540 (TJM/DEP)
02-29-2016
ALAN M. OUTMAN, Plaintiff, v. JOANN WALDRON, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: ALAN M. OUTMAN, Pro Se 12-B-3915 Five Points Correctional Facility Caller Box 119 Romulus, NY 14541 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: CHRISTOPHER W. HALL, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: ALAN M. OUTMAN, Pro Se
12-B-3915
Five Points Correctional Facility
Caller Box 119
Romulus, NY 14541 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224 OF COUNSEL: CHRISTOPHER W. HALL, ESQ.
Assistant Attorney General DAVID E. PEEBLES U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
This is an action brought by pro se plaintiff Alan Outman, a prison inmate formerly confined in the New York State Office of Mental Health ("OMH") Satellite Unit at the Clinton Correctional Facility ("Clinton"), pursuant to 42 U.S.C. § 1983, against three individuals employed by the OMH, alleging that they deprived him of constitutionally adequate medical care and failed to protect him from self-harm in connection with a suicide attempt in December 2013.
Currently pending before the court is a motion by defendants seeking the entry of summary judgment dismissing plaintiff's complaint based on the lack of personal involvement and qualified immunity. For the reasons set forth below, I recommend the motion be denied. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Although plaintiff is now confined elsewhere, at the times relevant to this action, he was a prison inmate being held in the OMH Satellite Unit at Clinton, located in Dannemora, New York. See generally Dkt. No. 1; Dkt. No. 55-2 at 1. Plaintiff has been "diagnosed with an 'Axis II - Personality Disorder' and Post-traumatic Stress Disorder / Anxiety & Panic Disorder," as well as gender dysphoria, depression, and anxiety. Dkt. No. 1 at 4; Dkt. No. 55-5 at 29-30, 57, 30-31, 34, 35, 36-37. Plaintiff contends that, prior to the series of incidents giving rise to this action, he had a history of suicide attempts, including on or about September 30, 2013, and November 14, 2013. Dkt. No. 1 at 4; Dkt. No. 55-5 at 54-55, 58.
The events relevant to plaintiff's claims in this action occurred between December 16, 2013 and December 22, 2013. Dkt. No. 1 at 3-6. Specifically, on December 16, 2013, plaintiff wrote a letter to defendant Victoria Chase, a Rehabilitation Counselor 2, who was stationed at the OMH Satellite Unit at Clinton at the time and assigned as plaintiff's therapist. Dkt. No. 1 at 3; Dkt. No. 55-2 at 1; Dkt. No. 55-5 at 62-63, 64. In that letter, plaintiff advised defendant Chase that he was "severely depressed and in need of being seen as soon as possible[.]" Dkt. No. 1 at 3, 8; Dkt. No. 55-5 at 68, 73. According to plaintiff, the next day, defendant Chase responded through a nurse, identified by him as "Sarah Fadden," who told plaintiff that defendant Chase did not have the time to see him due to her caseload but that she would see him at his next scheduled appointment, which was more than three weeks away. Dkt. No. 1 at 3; Dkt. No. 55-5 at 75, 76-77; Dkt. No. 59 at 1.
Plaintiff wrote defendant Chase a second letter, dated December 17, 2013, after receiving her response to the first, intending "to impress upon her the severity of [his] situation and advised her that [he] was facing an impending crisis and needed immediate emergant [sic] intervention." Dkt. No. 1 at 3, 9; see also Dkt. No. 55-5 at 78. On December 19, 2013, plaintiff was told by defendant Patrick McCoy, a Nurse 2 employed by the OMH and stationed at the OMH Satellite Unit at Clinton on that day, that defendant Chase "had instructed him to tell [plaintiff] that she would not see or refer [him] due to a [sic] over-burdened case-load[.]" Dkt. No. 59 at 2; see also Dkt. No. 1 at 3-4; Dkt. No. 55-5 at 83-84. Plaintiff thereafter informed defendant McCoy that he was experiencing suicidal thoughts and needed to be placed in an observation suicide cell. Dkt. No. 1 at 4; Dkt. No. 55-5 at 79; Dkt. No. 59 at 2. According to plaintiff, defendant McCoy responded by telling plaintiff that he needed to "'stop being so emotional and learn to deal with it.'" Dkt. No. 1 at 4; see also Dkt. No. 55-5 at 79; Dkt. No. 59 at 2.
Plaintiff alleges that he wrote a letter to defendant Joann Waldron, the OMH Unit Chief Forensic I at the OMH Satellite Unit at Clinton, on December 19, 2013, explaining that he needed immediate treatment for his depression and suicidal thoughts. Dkt. No. 1 at 4, 10; Dkt. No. 55-5 at 48, 60, 113-15, 116. Plaintiff recounted in his letter that he had previously informed "two OMH nurses, one being McCoy, of [his] severe depression and suicidal thoughts[.]" Dkt. No. 1 at 10; see also Dkt. No. 55-5 at 113-15. Plaintiff did not receive a response from defendant Waldron. Dkt. No. 1 at 4; Dkt. No. 55-5 at 116.
In the evening of December 21, 2013, plaintiff again explained to defendant McCoy that he was depressed and suicidal, and stated that he had been hoarding his medications and planned to commit suicide by overdosing. Dkt. No. 1 at 4; Dkt. No. 59 at 2. Defendant McCoy allegedly responded by telling plaintiff that "the OMH unit was 'full' and that they did not have the time/resources to see [him] on an individual basis." Dkt. No. 1 at 4; see also Dkt. No. 55-5 at 83-84; Dkt. No. 59 at 2. When plaintiff replied with a direct threat to commit suicide, defendant McCoy allegedly told plaintiff, "'Well, then do it and stop whining, it'll save us all a lot of time and money, so just go ahead. No one really cares, your [sic] in prison.'" Dkt. No. 1 at 4; see also Dkt. No. 59 at 2.
On December 22, 2013, at approximately 7:00 p.m., plaintiff attempted suicide by swallowing twelve Celexa pills, amounting to 180 milligrams. Dkt. No. 1 at 3, 6; Dkt. No. 55-5 at 47-48, 103; Dkt. No. 59 at 2. Although plaintiff alleges in his complaint that he hoarded three pills per day "for four days" leading up to December 22, 2013, Dkt. No. 1 at 6, in response to defendants' pending motion, he states that he hoarded two Celexa pills per day between December 16, 2013 and December 22, 2013. Dkt. No. 59 at 2.
Defendants sharply dispute plaintiff's rendition of the events occurring between December 16, 2013 and December 22, 2013. Defendant Chase does not recall ever receiving plaintiff's letters dated December 16 and 17, 2013, and plaintiff's OMH chart does not include a copy of them. Dkt. No. 55-2 at 2. Defendant Chase similarly does not recall making any statements to a nurse regarding plaintiff's letters in or around the time plaintiff contends he sent his letters. Id. Defendant Waldron contends that she never received a letter from plaintiff dated December 19, 2013. Dkt. No. 55-4 at 2. For his part, defendant McCoy denies ever being informed by plaintiff between December 16, 2013 and December 22, 2013 that he was hoarding medication. Dkt. No. 55-3 at 2.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on or about May 8, 2014, with the filing of a complaint and accompanying applications to proceed in the matter in forma pauperis ("IFP") and for the appointment of pro bono counsel. Dkt. Nos. 1-3. Plaintiff's complaint names, as defendants, (1) Joann Waldron, the OMH Unit Chief at the OMH Satellite Unit at Clinton; (2) Victoria Chase, an OMH Rehabilitation Counselor 2 at the OMH Satellite Unit at Clinton; and (3) Patrick McCoy, an OMH Nurse 2 at the OMH Satellite Unit at Clinton. Dkt. No. 1 at 1. Plaintiff asserts two causes of action against each of the defendants arising under the Eighth Amendment, including (1) deliberate medical indifference and (2) failure to protect. Id. at 7; Dkt. No. 55-5 at 46-47. On June 16, 2014, the court issued a decision and order granting plaintiff's IFP application, denying his motion for pro bono counsel, and accepting plaintiff's complaint for filing. Dkt. No. 7.
Following the close of discovery, defendants filed the currently pending motion for summary judgment, contending that no reasonable factfinder could conclude, based on the record now before the court, that any of them were personally involved in the conduct giving rise to the violations alleged, and, in any event, they are entitled to qualified immunity. See generally Dkt. No. 55-6. The filing of that motion was followed by plaintiff's submission in opposition, a reply on behalf of defendants, and a surreply by plaintiff. Dkt. Nos. 59, 61, 63. Defendants' motion is now fully briefed and ripe for determination, and has been referred to me or the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Personal Involvement
Defendants' primary ground for seeking dismissal of plaintiff's complaint is their contention that none of them were personally involved in the conduct giving rise to plaintiff's Eighth Amendment deliberate medical indifference and failure-to-protect causes of action. Dkt. No. 55-6 at 6-10.
"Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). As the Supreme Court has noted, a defendant may only be held accountable for his actions under section 1983. See Iqbal, 556 U.S. at 683 ("[P]etitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic."). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show "a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). "To be sufficient before the law, a complaint must state precisely who did what and how such behavior is actionable under law." Hendrickson v. U.S. Attorney Gen., No. 91-CV-8135, 1994 WL 23069, at *3 (S.D.N.Y. Jan. 24, 1994).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
One of the named defendants, Joann Waldron, appears to be named principally based upon her role as a supervisor at the OMH Satellite Unit at Clinton. It is well-established that a supervisor cannot be liable under section 1983 solely by virtue of being a supervisor, "and [liability] cannot rest on respondeat superior." Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501. To establish responsibility on the part of a supervisory official for a civil rights violation, a plaintiff must demonstrate that the individual (1) directly participated in the challenged conduct; (2) after learning of the violation through a report or appeal, failed to remedy the wrong; (3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; (4) was grossly negligent in managing the subordinates who caused the unlawful event; or (5) failed to act on information indicating that unconstitutional acts were occurring. Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007), rev'd on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 554 (2009); see also Richardson, 347 F.3d at 435; Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Wright, 21 F.3d at 501.
In this case, the record evidence clearly gives rise to a dispute of material fact as to whether each of the defendants was personally involved in ignoring plaintiff's warnings that he was suffering from severe depression and suicidal thoughts between December 16, 2013 and December 22, 2013. Turning first to defendant Chase, plaintiff's therapist, while she states in her declaration that she does not remember receiving the letters plaintiff allegedly sent her on December 16, 2013 and December 17, 2013, and that plaintiff's OMH record does not include a copy of those letters, Dkt. No. 55-2 at 2, 3, there is evidence in the record by way of plaintiff's sworn testimony that he, indeed, sent those letters. Dkt. No. 1 at 3-4; Dkt. No. 55-5 at 62-63, 68; Dkt. No. 59 at 1. Adding credence to plaintiff's claim is the fact that he included copies of the letters as attachments to his complaint. Dkt. No. 1 at 8-9. Plaintiff also maintains that defendant Chase responded to his letters through OMH nurses on December 17, 2013 and December 19, 2013. Dkt. No. 1 at 3-4; Dkt. No. 55-5 at 75, 76-77, 83-84; Dkt. No. 59 at 1-2. While defendants contend that the substance of what those nurses told plaintiff constitutes inadmissible hearsay and cannot be relied upon by plaintiff in opposing their summary judgment motion, Dkt. No. 55-6 at 8, plaintiff is not offering the nurses' statements for the truth of the matter asserted. Instead, plaintiff offers the nurses' statements to substantiate his claim that the letters were sent and responded to. Accordingly, the statements are not hearsay. See Fed. R. Evid. 801(c), Advisory Committee Note ("If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay."); accord, United States v. Dupree, 706 F.3d 131, 136 (2d Cir. 2013); see also George v. Celotex Corp., 914 F.2d 26, 30 (2d Cir.1990) ("To be sure, an out of court statement offered not for the truth of the matter asserted, but merely to show that the defendant was on notice of a danger, is not hearsay."). Because the parties have submitted evidence that is squarely in conflict with respect to whether defendant Chase was personally involved in ignoring plaintiff's complaints about being suicidal just days before his suicide attempt, I recommend defendants' motion be denied as to that defendant.
Turning to defendant Waldron, plaintiff attests that he sent defendant Waldron a letter on December 19, 2013, alerting her to his suicidal ideations and that he was hoarding medicine in advance of a suicide attempt. Dkt. No. 1 at 4; Dkt. No. 55-5 at 48, 60, 113-15; Dkt. No. 59 at 2. He also advised defendant Waldron that he had previously told two OMH nurses that he needed immediate treatment but they failed to respond. Dkt. No. 1 at 4, 10. A copy of plaintiff's letter is included in the record. Dkt. No. 1 at 10. While it is undisputed that defendant Waldron did not respond to this letter, Dkt. No. 55-5 at 116, defendants contend that this is because defendant Waldron "never received" it. Dkt. No. 55-4 at 2.
In her capacity as the Unit Chief at the OMH Satellite Unit at Clinton, and therefore a supervisory official, defendant Waldron may be held responsible for failing to cure a constitutional violation after she learned about it. See, e.g., Colon, 58 F.3d at 873. The question in this case is whether defendant Waldron actually learned about plaintiff not receiving adequate mental health care after informing two OMH nurses, including defendant McCoy, of his suicidal tendencies. Plaintiff insists he sent defendant Waldron a letter informing her of those circumstances and provides, as evidence, a copy of the letter. Dkt. No. 1 at 4, 10. Defendant Waldron, on the other hand, attests that she did not receive plaintiff's letter. Dkt. No. 55-4 at 2. It therefore appears clear that the record contains a dispute of material fact as to whether defendant Waldron learned of the alleged unconstitutional conduct by OMH mental health care providers. Without rendering a credibility determination, I am unable to conclude in favor of either party at this juncture. For this reason, I recommend defendants' motion be denied as it relates to defendant Waldron.
Addressing next plaintiff's claims against defendant McCoy, there is a stark contrast in the record between plaintiff's version of his communications with that defendant and defendant McCoy's version. Plaintiff maintains that the first time he informed defendant McCoy he was "having thoughts of self-harm and suicide," McCoy responded only by telling plaintiff to "'stop being so emotional.'" Dkt. No. 1 at 4; see also Dkt. No. 59 at 2. On December 21, 2013, plaintiff allegedly told defendant McCoy again that he was feeling suicidal and that he was "hoarding [his] medication to try and overdose." Dkt. No. 1 at 4; see also Dkt. No. 59 at 2. According to plaintiff, defendant McCoy did not take any steps to address plaintiff's symptoms or otherwise verify whether plaintiff was hoarding medicine. Id. Instead, defendant McCoy allegedly responded by telling plaintiff that, because he is a prisoner, no one cares if he commits suicide. Id. In his declaration in support of defendants' motion, however, defendant McCoy unequivocally "den[ies] that [plaintiff] ever told [him] between December 16, 2013 and December 22, 2013 that [plaintiff] was hoarding the medication [he] was giving [plaintiff], hoarding any other medication or that [plaintiff] had suicidal thoughts except on the night of December 22, 2013." Dkt. No. 55-3 at 2. In light of the parties' disputes as to whether defendant McCoy ignored plaintiff's suicidal tendencies in the days leading up to his suicide attempt, I recommend defendants' motion be dismissed with respect to this defendant.
C. Qualified Immunity
As an alternative basis for dismissing plaintiff's complaint, defendants contend that they are entitled to qualified immunity from suit. Dkt. No. 55-6 at 10-11.
"Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012); see also Pearson v. Callahan, 555 U.S. 223, 231 (2009); Sudler v. City of N.Y., 689 F.3d 159, 174 (2d Cir. 2012). The law of qualified immunity seeks to strike a balance between "the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson, 555 U.S. at 231. Government officials are shielded from liability by qualified immunity when making "reasonable mistakes" concerning the lawfulness of their conduct. Sudler, 689 F.3d at 174 (citing Saucier v. Katz, 533 U.S. 194, 206 (2001), abrogated on other grounds by Pearson, 555 U.S. 223)).
Because qualified immunity is "an immunity from suit rather than a mere defense to liability," Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), the Supreme Court has "repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in the litigation," Pearson, 555 U.S. at 231 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).
The determination of whether a government official is immune from suit is informed by two factors. Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir. 2011). Specifically, the inquiry turns on whether the facts alleged, taken in a light most favorable to the plaintiff, show that the conduct at issue violated a statutory or constitutional right, and if so, whether that right "was clearly established at the time of the challenged conduct." Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir. 2014) (citing Reichle, 132 S. Ct. at 2093). The Supreme Court has said that an officer's "conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quotation marks and alterations omitted). "To this end, a plaintiff need not show a case 'directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.'" Terebesi, 764 F.3d at 230 (quoting al-Kidd, 131 S. Ct. at 2083). However, '[e]ven where the law is 'clearly established' and the scope of an official's permissible conduct is 'clearly defined,' the qualified immunity defense also protects an official if it was 'objectively reasonable' for him at the time of the challenged action to believe his acts were lawful." Higazy v. Templeton, 505 F.3d 161, 169-70 (2d Cir. 2007) (citations omitted). This "objective reasonableness" part of the test is satisfied if "officers of reasonable competence could disagree on [the legality of the defendant's actions]." Malley v. Briggs, 475 U.S. 335, 341 (1986).
Defendants in this matter are not entitled to qualified immunity from suit at this stage of the litigation in light of the disputes of material fact that exist in the record with respect to whether they ignored plaintiff's complaints and warnings of his suicidal tendencies leading up to his suicide attempt on December 22, 2013. If a reasonable factfinder credits plaintiff's testimony and believes that he informed defendants Chase, Waldron, and McCoy, in advance of his suicide attempt, that he was experiencing suicidal tendencies and yet they took no steps to intervene, defendants' conduct could be determined to have been in violation of plaintiff's clearly established constitutional right to be free from deliberate indifference to a serious medical need and/or to a serious risk of harm. See, e.g., Kelsey v. City of N.Y., No. 03-CV-5978, 2006 WL 3725543, at *4 (E.D.N.Y. Dec. 18, 2006) ("In the detainee suicide context, deliberate indifference may exist . . . [when] the detaining authorities . . . discovered and have been aware of the [plaintiff's] suicidal tendencies, but [were] deliberately indifferent in the manner by which they respond to the recognized risk of suicide[.]" (citing Rellergert v. Cape Girardeau Cnty., Mo., 924 F.2d 794, 796 (8th Cir.1991)). Accordingly, I recommend that defendants' motion be denied to the extent it seeks dismissal of plaintiff's complaint on the basis of qualified immunity.
IV. SUMMARY AND RECOMMENDATION
Defendants' motion seeks dismissal of plaintiff's complaint on two narrow grounds: personal involvement and qualified immunity. Neither of defendants' arguments is addressed to the underlying merits of plaintiff's Eighth Amendment deliberate indifference and failure-to-protect causes of action. Based on review of the record evidence, it appears clear that there are disputes of material fact with respect to whether any of the named defendants were personally involved by becoming aware of plaintiff's suicidal thoughts prior to his suicide attempt but failing to take any steps to provide him treatment. For this reason, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 55) be DENIED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge Dated: February 29, 2016
Syracuse, New York