Opinion
9:20-CV-00242
06-03-2022
LEROY PEOPLES, Plaintiff, v. RICHARD HOYT, JOHN SHEA, JAMES PIROZZOLO, and MICHAEL RUSSO, Defendants.
LETITIA JAMES LAUREN ROSE EVERSLEY, ESQ. MICHAEL RUSSO
LETITIA JAMES
LAUREN ROSE EVERSLEY, ESQ.
MICHAEL RUSSO
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
This matter has been referred for a Report-Recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Leroy Peoples commenced this action against Defendants Richard Hoyt, John Shea, James Pirozzolo, and Michael Russo asserting claims pursuant to 42 U.S.C. §1983 for violations of his Fourth and Fourteenth Amendment rights while a parolee on post-release supervision by the New York State Department of Corrections and Community Supervision (“DOCCS”). (Dkt. No. 1.) The Honorable Mae A. D'Agostino, United States District Judge, reviewed the complaint in accordance with 28 U.S.C. §§ 1915(e) and 1915A, and directed Defendants to respond to Plaintiff's Fourteenth Amendment due process claims challenging (1) the imposition of GPS monitoring as a special condition to Plaintiff's post-release supervision and (2) the requirement that Plaintiff pay to attend mandated sex offender programming conducted by Russo. (Dkt. No. 5 at 4-6, 8.) Defendants Hoyt, Shea, and Pirozzolo answered the complaint through counsel, Defendant Russo answered the complaint pro se, and discovery ensued. (Dkt. Nos. 30, 34, 35, 40.)
Page references to documents identified by docket number are to the page numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs. Unless noted, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
Currently before the Court is a motion for summary judgment filed by Defendants Hoyt, Shea, and Pirozzolo, in which Defendant Russo joins. (Dkt. No. 59; see also Dkt. Nos. 58, 67, 69.) Plaintiff opposed the motion and Defendants Hoyt, Shea, and Pirozzolo replied. (Dkt. Nos. 65, 66.) For the following reasons, the undersigned recommends granting Defendants' motion and dismissing Plaintiff's complaint in its entirety. (Dkt. No. 59.)
I. LEGAL STANDARD
Summary judgment is warranted if the parties' submissions show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (citing Fed.R.Civ.P. 56(a)). A fact is “material” if it “might affect the outcome of the suit under the governing law[,]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and a dispute of a material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The movant bears the burden of pointing the court to the materials that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Salahuddin v. Goord, 467 F.3d 263, 273 (2nd Cir. 2006). In that context, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
The Second Circuit instructs that on summary judgment motions, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (emphasis in original; citation omitted). In other words, “a nonmoving party must offer some hard evidence showing that [his] version of the events is not wholly fanciful.” Id. (citation and internal quotation marks omitted). Accordingly, statements “that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999). At bottom, summary judgment tasks the court with assessing the assembled evidence and determining whether a reasonable factfinder could find in the nonmovant's favor. Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obligated to “read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
II. DEFICIENCIES IN PLAINTIFF'S OPPOSITION SUBMISSION
While courts are required to give due deference to a plaintiff's pro se status, that status “does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003). In opposing Defendants' motion for summary judgment, Plaintiff failed to respond to the statement of material facts filed by Defendants in the manner required under Local Rule 56.1(b). (See Dkt. No. 65 at 4-8.) “This requirement is not a mere formality; rather ‘this and other local rules governing summary judgment are essential tools intended to relieve the district court of the onerous task of hunting through voluminous records without guidance from the parties.'” Cao-Bossa v. New York State Dep't of Lab., No. 1:18-CV-0509 (GTS/TWD), 2021 WL 3674745, at *1 (N.D.N.Y. Aug. 19, 2021).
Local Rule 56.1(b) requires the opposing party to file a Response to the movant's Statement of Material Facts. Under the rule, the Response “shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in a short and concise statement, in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises.” L.R. 56.1(b).
Here, as pointed out by Defendants, much of Plaintiff's response provides inconsequential background information as to why Plaintiff “disputes” the facts set forth in Defendants' statement of material facts, i.e., his belief that he was not convicted of a sexually motivated felony and that recreational marijuana is currently legal in New York State. (See, e.g., Dkt. No. 65 at 1-8; Dkt. No. 66 at 3.) Where, as in this case, a party has failed to respond to the movant's Statement of Material Facts in the manner required under Local Rule 56.1(b), the facts in the movant's statement to which the plaintiff has not properly responded will be accepted as true (1) to the extent that they are supported by evidence in the record, and (2) provided that the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Plaintiff was provided with the requisite notice of the consequences of his failure to properly respond to the motion. (Dkt. No. 60.)
Nevertheless, the Second Circuit has ruled that “[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules,” including local rules relating to requirements regarding the submission of and response to statements of material facts on summary judgment motions, and to “conduct an assiduous review of the record.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted).
In deference to Plaintiff's pro se status, the Court has reviewed the entire record. See Parker v. Fantasia, 425 F.Supp.3d 171, 176 n.2 (S.D.N.Y. 2019) (noting that special solicitude afforded to pro se litigants suggests that courts should review record when pro se plaintiff fails to appropriately respond to defendants' properly supported statement of material facts).
III. FACTS
At all times relevant to the claims in this action, Plaintiff was a parolee in custody of DOCCS. (Dkt. No. 59-2 at ¶ 1.) On June 6, 2019, Plaintiff was released to parole supervision as a Level 3 Sex Offender after serving a maximum term of incarceration for convictions of two counts of rape in the first degree, stemming from two separate incidents. Id. at ¶¶ 5, 8, 10. Plaintiff was assigned Hoyt as his parole officer, and was required to report to the Binghamton Area office every Thursday to meet with Hoyt for a weekly check-in. Id. at ¶ 10. Although Shea worked alongside Hoyt and interacted with Plaintiff on occasion, Shea was not Plaintiff's assigned parole officer. Id. at ¶ 11.
The first rape for which Plaintiff was convicted occurred on or about March 7, 1998, and the second instance was on or about April 7, 2003. (Dkt. No. 59-2 at ¶ 7.) As Plaintiff was fifteen when he committed the first rape, he was sentenced as a juvenile offender. However, he was charged as an adult for the second rape. Id. at ¶ 7 n.1.
As relevant here, Plaintiff's conditions of release included refraining from marijuana use, imposition of a curfew, and participation in sex offender treatment programming. Id. at ¶ 12.On or about June 13, 2019, Plaintiff failed to comply with the substance abuse condition by consuming marijuana without the written permission of his parole officer after testing positive for THC use. Id. at ¶ 13. In response to the positive test, Plaintiff was directed to participate in drug abuse treatment. Id. at ¶ 14.
While Plaintiff disputes this paragraph, he does not do so in the manner required under L.R. 56.1(b). (See Dkt. No. 65 at 5 (“Plaintiff disputes paragraph ‘12' because materials cited by defendants do not establish the absence of a genuine dispute of fact. Recreation marijuana is legal in NYS, and under ‘The less is more Community Supervision Reform Act,' Plaintiff cannot be incarcerated for missing sex offender programming or being late for curfew. (See, 2021 NY Senate Bill S2244A/2021 NY Assembly Bill A5576A.)”).)
Plaintiff disputes this paragraph because “recreation marijuana is legal in NYS.” (Dkt. No. 65 at 5.)
On June 25, 2019, Plaintiff was approximately two hours late for his curfew. Id. at ¶¶ 1620. As a result, Hoyt recommended to Pirozzolo, Acting Bureau Chief of the Binghamton Area Office and Senior Parole Officer, that based on Plaintiff's crime history and history of parole violations, Plaintiff be placed on GPS monitoring. Id. at ¶ 21. Pirozzolo conferred with his supervisor, non-party Jeffrey Jones, Assistant Regional Director for the Western Region of DOCCS, who approved the implementation of the condition. Id. at ¶ 22. On June 27, 2019, Hoyt and Pirozzolo issued Plaintiff the special condition imposing GPS monitoring, which Plaintiff signed. Id. at ¶ 23. Plaintiff alleges Hoyt and Pirozzolo did not have the authority to impose the new condition. (Dkt. No. 1 at 4-5.)
Plaintiff has a history of parole violations, including failing to report to his parole officer, changing his residence without notifying his parole officer, and raping the second victim while on parole for the March 7, 1998, rape conviction. Id. at ¶ 8.
From approximately June 11 through July 30, 2019, Plaintiff participated in the weekly sex offender programming conducted by Russo, a private practitioner, in Broome County in conjunction with DOCCS re-entry services. (Dkt. No. 1 at 6; Dkt. No. 59-2 at ¶¶ 29, 30.)
On August 6, 2019, Plaintiff removed his GPS device. (Dkt. No. 59-3 at 37-38; Dkt. No. 59-4 at ¶ 15.) It was determined Plaintiff had left his approved residence at 4:54 a.m. that morning. (Dkt. No. 59-4 at ¶ 15.) Hoyt attempted to contact Plaintiff and visited his residence, his mother's residence, and his wife's residence, but he was not located. Id. Hoyt also conducted a visit to Plaintiff's sex offender treatment program class. Id. Russo informed Hoyt that Plaintiff failed to show up for class. (Dkt. No. 59-2 at ¶ 25.) At 1:30 p.m., an absconder warrant was issued for Plaintiff's arrest, and he was taken into custody later that day. Id. at ¶ 28.
Plaintiff's Fourth Amendment false arrest claim asserted against Shea was dismissed on initial review. (Dkt. No. 5 at 6-8.)
Plaintiff claims he failed to attend the sex offender treatment program on August 6, 2019, because Russo and Hoyt “demanded” Plaintiff “start making $5 dollar-payments every Tuesday to Defendant Russo or [else] Plaintiff would be expelled from sex offender training for refus[ing] to participate.” (Dkt. No. 1 at 8.) He further claims that although he was required to pay for the sex offender programming, Hoyt denied Plaintiff permission to accept an offer of employment until after he completed the program. Id.
In his submissions to the Court, Russo explains that “[t]he New York state rate is set at $50/person/session for parolees that are mandated for sex offender treatment. New York State pays a portion of this counseling fee for all parolees depending on their income status. The balance is expected to be paid by the parolee.” (Dkt. No. 69 at 1.)
Neither Hoyt nor Pirozzolo had control over the payment structure for the sex offender treatment program. (Dkt. No. 59-2 at ¶ 31.) Hoyt never asked for and/or accepted payment from Plaintiff with respect to the sex offender program. Id. at ¶ 32. Plaintiff did not speak with Pirozzolo concerning the payment for treatment of services. Id. at ¶ 33. Plaintiff did not miss any treatment classes for failing to pay and was not removed from the program for failing to pay at any time. Id. at ¶ 34. The parties agree Shea had no personal involvement with respect to the GPS condition or payment for sex offender treatment programming. Id. at ¶ 35.
IV. DISCUSSION
A. Personal Involvement of Shea
Defendants argue the complaint should be dismissed as against Shea for lack of his personal involvement in any of the alleged constitutional violations. (Dkt. No. 59-1 at 7-8.) In response to the summary judgment motion, Plaintiff has requested that Shea be dismissed from this action. (Dkt. No. 65 at 9.) Considering Plaintiff's request for a voluntary dismissal, and in the absence of any factual allegations alleging Shea's personal involvement in the underlying causes of action, the Court recommends granting summary judgment to Shea on this ground.
B. GPS Monitoring
The Court liberally construed the complaint as alleging Fourteenth Amendment due process claims against Defendants regarding the imposition of GPS monitoring as a special condition to Plaintiff's post-release supervision. (Dkt. No. 5 at 5-6.) Defendants seek summary judgment and argue the challenged special condition relating to GPS monitoring is constitutional, reasonably related to Plaintiff's past conduct, and was tailored to serve legitimate state interests. (Dkt. No. 59-1 at 9-13.) In his opposition submission, Plaintiff states he “waives” all claims against Shea and Pirozzolo and maintains his claims “only” against Hoyt and Russo regarding the payment of funds to participate in the sex offender treatment program conducted by Russo. (Dkt. No. 65 at 9.) Considering Plaintiff's request for a voluntary dismissal, and for the reasons set forth in Defendants' memorandum of law (Dkt. No. 59-1 at 913), the Court recommends that summary judgment be granted to Defendants on this ground.
C. Requirement to Pay for the Sex Offender Treatment Program
As indicated above, Plaintiff foregoes all claims except for his Fourteenth Amendment due process claims against Hoyt and Russo involving the alleged requirement that Plaintiff pay for the mandated sex offender treatment program conducted by Russo. Considering Plaintiff's request for a voluntary dismissal of all claims against Shea and Pirozzolo and in the absence of any facts establishing Shea's and Pirozzolo's personal involvement in this underlying cause of action, (Dkt. No. 59-1 at 14-15), the Court recommends that summary judgment be granted to Shea and Pirozzolo on this ground.
Turning to the merits, the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law ....” U.S. CONST. amend. XIV. A liberty interest may arise from the Constitution itself, . . . or it may arise from an expectation or interest created by state laws or policies. Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citations omitted).
Here, Defendants argue that Plaintiff fails to demonstrate that such allegations amount to a constitutional violation as he does not set forth an implicated liberty interest and fails to allege that he suffered any injury from failing to pay. (Dkt. No. 59-1 at 13-15.) This Court agrees.
The special condition provided Plaintiff “will enter, attend, cooperate, participate, and complete sex offender treatment, and will not leave this program without prior knowledge of and permission of [his] Parole Officer.” (Dkt. No. 59-4 at 13.) As set forth above, Plaintiff claims he failed to attend the program on August 6, 2019, because Russo and Hoyt demanded that Plaintiff pay $5.00 to Russo. (Dkt. No. 1 at 8.) The record belies Plaintiff's claim.
Plaintiff attended the weekly sex offender treatment programming conducted by Russo in Broome County from approximately June 11, 2019, through July 30, 2019. (Dkt. No. 1 at 8; see also Dkt. No. 59-3 at 50-51 (indicating that that he likely attended classes for a month or two before his re-incarceration on August 6, 2019).) Plaintiff testified that he paid Russo on two such occasions when he “had the money.” (Dkt. No. 59-3 at 56.) Notably, Plaintiff did not pay on the remaining occasions and was still permitted to attend the program without penalty, despite his claim that Hoyt told him that he would be removed from the program if he failed to pay. Id. at 56-57.
In his declaration, Hoyt states that as a parole officer, he had no control over whether Plaintiff was required to pay for such services. (Dkt. No. 59-4 at ¶¶ 16, 17.) Hoyt avers he never requested or received money from Plaintiff to attend the programming. Id. at ¶ 18. Nor was he present during the programming. Id. Similarly, Plaintiff testified that he never spoke with Hoyt regarding his ability to pay for the sex offender treatment program, stating, “No, I never had that conversation with him.” (Dkt. No. 59-3 at 59-60.) Plaintiff testified that the only conversation he had with Hoyt concerning the payment for treatment services was questioning whether he had to pay to attend, and Hoyt responded that he was “under the impression that he did.” Id. at 5152. Hoyt does not recall conversing with Plaintiff regarding program payment, but if he did, he would have told Plaintiff to speak with Russo or DOCCS re-entry services. (Dkt. No. 59-4 at ¶¶ 19-20.) Russo submits that he “never told Plaintiff he would be denied services for not having the money” to pay for class. (Dkt. No. 69 at 1.)
To the extent Plaintiff claims Hoyt “allowed this financial hardship” to continue by not communicating with DOCCS re-entry services about Plaintiff's alleged “financial plight”, (Dkt. No. 65 at 9-10), such statement is contradictory to Plaintiff's deposition testimony, wherein he stated that he never spoke to Hoyt concerning his inability to pay for treatment. (See Dkt. No. 59-3 at 59.) Plaintiff's self-serving statements, presented for the first time in his opposition to the motion for summary judgment, are unsupported by the record and do not create a material issue of fact for a jury. See, e.g., Peoples v. Leon, No. 9:18-CV-1349 (LEK/ML), 2021 WL 1582173, at *10 (N.D.N.Y. Jan. 4, 2021) (citing Stolow v. Greg Manning Auctions Inc., 80 Fed.Appx. 722, 725 (2d Cir. 2003) (citing Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996) (“[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that . . . contradicts the affiant's previous deposition testimony.”))); Fox v. Harris, No. 6:15-CV-0616 (LEK/ATB), 2017 WL 1319835, at *2 (N.D.N.Y. Apr. 7, 2017) (holding that the plaintiff “cannot escape summary judgment via ‘selfserving statements . . . made in his opposition that contradict his sworn deposition testimony.'”) (citation omitted), report-recommendation adopted, 2021 WL 977222 (N.D.N.Y. Mar. 16, 2021).
In short, the record demonstrates Plaintiff was never denied treatment services for failure to pay the $5.00 fee at issue. Id.
Additionally, the Court agrees with Defendants that Plaintiff fails to establish any hardship associated with the requirement to pay for the sex offender treatment program. (Dkt. No. 59-1 at 15; Dkt. No. 69 at 1.) As indicated, Plaintiff likely attended six to eight classes from June 11 through July 31, 2019, and although he only paid on two occasions, Plaintiff was still permitted to attend the program without penalty despite his claims that Hoyt and Russo told Plaintiff that he would be removed from the program if he failed to pay. The record evidence demonstrates Plaintiff did not miss programming on August 6, 2019, because “he couldn't pay” but rather because of “other issues” including that Plaintiff removed his GPS monitor. (Dkt. No. 59-3 at 56-57.)
Lastly, to the extent Plaintiff contests the designation that he was “convicted of a sexually motivated felony,” and his alleged improper designation under Article 10 of the Menth Hygiene Law, (see Dkt. No. 65 at 10), such designations are not at issue in this case. Because of Plaintiff's two rape convictions, he was released as a Level 3 Sex Offender. (Dkt. No. 59-2 at ¶ 8.) “Mandatory sex offender programming for an individual convicted of a sex offense does not rise to the level of a substantive due process violation.” Maldonado v. Mattingly, No. 11-CV-1091, 2019 WL 5784940, at *9 (W.D.N.Y. Nov. 6, 2019) (citing Miller v. Annucci, 9:19-CV-0030, 2019 WL 2370295, at *13 (N.D.N.Y. June 5, 2019); Blake v. Fischer, No. 09-CV-266, 2010 WL 2522198, at *13 (N.D.N.Y. Mar. 5, 2010)); see also Mercer v. Sullivan, No. 18-CV-1148, 2018 WL 6787159, at *5 (N.D.N.Y. Dec. 26, 2018) (“[The] [p]laintiff was convicted of a sex offense, thus, [the] [p]laintiff does not have a liberty interest in being free from participation in a sex offender treatment program.” (citation omitted)), reconsideration denied, 2019 WL 569074 (N.D.N.Y. Feb. 12, 2019).
In sum, Plaintiff's conclusory and often contradictory allegations fail to demonstrate that there is a material dispute of fact that would necessitate a trial in this matter. Accordingly, for the reasons given above, the Court recommends granting summary judgment to Hoyt and Russo on this ground.
Considering this recommendation, the Court does not reach Defendants' qualified immunity argument. (See Dkt. No. at 15-17.)
V. PLAINTIFF'S ADDRESS
Local Rule 10.1(c)(2) states that “all attorneys of record and pro se litigants must immediately notify the court of any change of address,” and requires parties to file the notice of change with the Clerk and serve all other parties to the action. L.R. 10.1(c)(2). In turn, Local Rule 41.2(b) provides that “failure to notify the Court of a change of address in accordance with Rule 10.1(c)(2) may result in the dismissal of any pending action.” L.R. 41.2(b).
Here, Plaintiff was placed on notice by the Court of his duty to promptly notify the Clerk's Office and all parties or their counsel, in writing, of any change in his address and that his failure to do so may result in the dismissal of this action. (Dkt. No. 5 at 9-10.) Plaintiff demonstrated that he understood this requirement and its importance when he updated his address with the Court on four occasions. (See Dkt. Nos. 18, 21, 29, 45.) However, on May 9, 2022, a mailed copy of the 05/02/2022 Text Order (Dkt. No. 67) that was sent to Plaintiff at his address on file was returned as undeliverable. (Dkt. No. 68.) The envelope was marked “return to sender - not in custody.” Id. The Clerk's Office confirmed Plaintiff was released from the Broome County Correctional Facility on April 29, 2022.
Plaintiff must file a change of address in writing within fourteen (14) days, and he must continue to submit any address changes to the Court as long as this action is pending. “Failure to notify the Court of a change of address in accordance with L.R. 10.1(c)(2) may result in the dismissal of any pending action.” L.R. 41.2(b).
In an extraordinary display of special solicitude to Plaintiff as a pro se litigant, the Clerk is directed to mail a one-time courtesy copy of this Order and Report-Recommendation along with a copy of the docket and a notice of change of address to Plaintiff at the address identified by Defendant Russo in Dkt. No. 69.
VI. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the applicable law, and for the reasons stated herein, the undersigned recommends granting summary judgment to Defendants Shea, Hoyt, Pirozzolo, and Russo and dismissing Plaintiff's complaint in its entirety.
WHEREFORE, it is hereby
RECOMMENDED that the motion for summary judgment filed by Defendants Shea, Hoyt, Pirozzolo (Dkt. No. 59), and in which Defendant Russo has joined (see Dkt. Nos. 58, 67, 69) be GRANTED; and it is further
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED IN ITS ENTIRETY WITH PREJUDICE; and it is further
ORDERED that Plaintiff must file a CHANGE OF ADDRESS within fourteen (14) days of the date of the foregoing report, and he must continue to submit any address changes to the Court as long as this action is pending; failure to notify the Court of a change of address in accordance with L.R. 10.1(c)(2) may result in the dismissal of this action; and it is further
ORDERED that the Clerk provide a copy of this Order and Report-Recommendation to the parties in accordance with the Local Rules of Practice, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further ORDERED that the Clerk provide a one-time courtesy copy of this Order and ReportRecommendation, along with a copy of the docket and a notice of change of address to Plaintiff at the Del Motel, Room 8, 609 Upper Court Street, Binghamton, NY 13904.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) 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 (14) 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); Fed.R.Civ.P. 72.
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.P. 6(a)(1)(C).