Opinion
1:24-cv-0668 (DNH/TWD)
11-07-2024
YI SUN, Plaintiff, v. NEW YORK STATE WORKERS' COMPENSATION BOARD, et al., Defendants.
YI SUN Plaintiff, pro se
YI SUN
Plaintiff, pro se
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff Yi Sun (“Plaintiff”). Dkt. No. 1. Plaintiff has not paid the statutory filing fee for this action and seeks leave to proceed in forma pauperis (“IFP”). Dkt. No. 2. For the reasons that follow, Plaintiff's IFP application is granted, and the Court recommends dismissal of the complaint with leave to amend.
II. IFP APPLICATION
Upon review, Plaintiff's IFP application demonstrates economic need. Dkt. No. 2. Therefore, her IFP application is granted. However, Plaintiff will still be required to pay fees that she may incur in this action, including copying and/or witness fees.
III. BACKGROUND
Plaintiff commenced the instant action utilizing the Court's form complaint pursuant to the American with Disabilities Act, 42 U.S.C. § 12101 et seq. See Dkt. No. 1. The complaint lists six defendants: (1) New York State Workers' Compensation Board (“WCB”); (2) New York State Insurance Fund (“NYSIF”); (3) NCA Comp Inc. (“NCA Comp.”); (4) New York State Office of Victim Services (“OVS”); (5) New York City Human Resources Administration or Department of Social Services (“HRA/DSS”); and (6) New York State Office of Temporary and Disability Assistance (“OTDA”). Id. at 2. Plaintiff states her disability is as follows:
Citations to Plaintiff's submissions 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.
(1) Permanent partial disability in lung with dyspnea and bronchial asthma, patient with poorly control persistent asthma symptoms.
(2) Musculoskeletal health ‘persistent backache' and ‘stiff neck' (and sore shoulders, joint pain) after spinal cord injury.
(3) As a ‘facial disfigurement' and ‘internal organ loss function and related disabilities' in the twice work injurys.
(4) Became a ‘moving functional limitation' or ‘motion and balance impairment' in the last injured at ‘hate crime' case during the time of Pandemic (COVID-19).Id. She indicates, by checking off boxes, that this action involves: the failure to employ; termination of employment; denial of participation in public service or program; failure to make alterations to accommodate disability; retaliation; and “other” specified as “racial discrimination and racial prejudice, etc.” Id. at 3.
In the facts section of the ADA form complaint, Plaintiff references the “right of life and health” and “the right of personal dignity.” Id. She further states, “The ‘multiple disabilities' person filed a complaint/lawsuit against these agencies on May, accusing it of dereliction of duty etc.” Id. Reference is also made to a thirty-three-page, typed, singled-spaced document entitled, “VERIFIED COMPLAINT (With Factual Allecations) AND DEMAND FOR A JURY TRIAL, etc.” (hereafter “Verified Complaint”). Id.; see Dkt. No. 1-1. As relief, Plaintiff requests the following:
I. First of all, Plaintiff seeks an order of ‘Summary Judgment' in ‘the recommended lifesaving anti-inflammatory drug treatment' so that the ‘Multiple Disabilities' person can get the life-saving pharmaceuticals and order the WCB (and NYSIF Insurers) must provide medical treatment expenses and disability benefits for injured worker;
II. Order the OVS must provide related assistances for the survivor/victim, who is/was a criminal victim of hate crime case (the claim # 81593) and a rape survivor in past. Order the HRA/DSS must provide the basic living needs for the disabled, pursuant to the Federal Regulations/Law or and Rules ‘Title II of the Federal Social Security Act' and or and ‘Americans with Disabilities Act of 1990.'
III. Award Yi Sun compensatory damages in an amount to be determined at trial;
IV. Award Yi Sun punitive and exemplary damages (against Defendants) in an amount to be determined at trial; and such other and further relief as the Court may deem just and power.Dkt. No. 1 at 4.
The Verified Complaint is confusing and difficult to understand. See generally Dkt. No. 1-1. By way of example, Plaintiff states:
For the sake of brevity and clarity, the Court will not endeavor to summarize each occurrence or condition described in Plaintiff's lengthy and disorganized Verified Complaint.
This Verified Complaint is the helpless survivor Yi Sun filed a lawsuit again the local government authorities' blatant gave
malfeasance, he/she/they practies favoritism, makes falsification, neglects his/her/their duties, or has any other malfeasance. Include: Serous prejudice and discrimination against the Asian injured worker, “Testing their drugs” on the injured woman with disabilities (who was a vulnerable groups); Arbitrary deprivation of the injured woman's ‘Right to Life and Health' through abuse of power shielded by impunity; knowingly encourages someone to suicide.
Plaintiff Yi Sun's disclaimer: this Verified Complaint/Statement is not malicious, is full of my blood and tears of history. “What Yi Sun requires is, that justice be done.” I always believe that “In a just society there must be a system whereby people case seek redress through the Courts.”Id. at 2. The Verified Complaint references two workers' compensation claims (case number 00319053 and case number 00839618). Id. at 3. Plaintiff alleges she is “currently 100% disability” but she “didn't get these disability benefits during the period of disability under the disability clause of ‘Workers' Compensation Law' or and ‘Americans with Disabilities Act of 1990'” because of “artificial mistakes.” Id. at 9-10. The WCB ignored Plaintiff's request for “error correction.” Id. at 10. Plaintiff continues to file motions and contacts the WCB and related offices (by phone, Email, fax, and mailings), but she is ignored. Id. at 11-13. Additionally, when Plaintiff calls the defendant insurance companies, NYSIF and NCA Comp Inc., she “got ‘Language Discrimination' by the Insurer staffs.” Id. at 11 (emphasis in original).
Plaintiff also claims she was assaulted on November 5, 2020, and April 30, 2021 (NYPD complaint report Number: 2021-005-1954 and 2021-025-14540). Id. Plaintiff believes the attacks were racially motivated. Id. She was further injured and incurred medical bills. Id. at 14-16. “The helpless victim is struggling to survive. An employee suffering from work-related injury or occupation disease is entitled to work-related injury medical treatment according to laws and regulations.” Id. at 13.
“To add insult to injury only a minimal amount of money ($50 in Bounced Check) was offered as compensation in the Matter of ‘Hate Crime' by ‘New York State Office of Victim Services; And a minimal amount of money ($2.5 only) was offered as Emergency Housing Assistance by the Members of the local HRA-18 (New York City Human Resources Administration or Department of Social Services) in the time of the Pandemic (Covid 19).” Id. at 14. “Plaintiff believed that the ‘disabled Asian female client Yi Sun' who is essentially disxcriminated against because of racism.” Id. Plaintiff hopes that the OTDA “can watch on all this and to lend me a hand.” Id. at 27. Plaintiff further states “if the WCB or OTDA administers a scheme to provide interest-free loans to those who need financial assistance as a result of work-related accident like me, I believe that the ‘Multiple Disabilities' (this Asian woman admitted to higher education) will doing very well as a small business investor.” Id. at 29.
IV. LEGAL STANDARD
Section 1915 of Title 28 requires a district court to dismiss an in forma pauperis complaint if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint, or portion thereof, when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal punctuation and citation omitted, emphasis in original). A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (“[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible.”); Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous' when either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an indisputably meritless legal theory.”).
Additionally, when reviewing a complaint, a court may look to the Federal Rules of Civil Procedure. To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Twombly, 550 U.S. at 570. “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).
See also Fed.R.Civ.P. 10(b) (“A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence--and each defense other than a denial--must be stated in a separate count or defense.”).
In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citations omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
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. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). An opportunity to amend is not required, however, where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo, 987 F.2d at 131.
V. ANALYSIS
Federal courts exercise limited jurisdiction pursuant to Article III of the Constitution. A court may exert subject matter jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States” and civil actions where there is diversity of citizenship between the parties and the amount in controversy exceeds the sum of $75,000. 28 U.S.C. §§ 1331, 1332. In the absence of a basis for exercising jurisdiction, the case must be dismissed. Fed.R.Civ.P. 12(h)(3); United States v. Cotton, 535 U.S. 625, 630 (2002); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 513 n.10 (2006) (“A claim invoking federal-question jurisdiction under 28 U.S.C. § 1331 . . . may be dismissed for want of subject-matter jurisdiction if it is not colorable, i.e., if it is ‘immaterial and made solely for the purpose of obtaining jurisdiction' or is ‘wholly insubstantial and frivolous.'”) (citing Bell v. Hood, 327 U.S. 678, 682-83 (1946)) (additional citations omitted). “[F]ailure of subject matter jurisdiction is not waivable and may be raised at any time by a party or by the court sua sponte.” Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000).
As noted above, it appears Plaintiff seeks to invoke federal question subject matter jurisdiction given that she utilized a form ADA complaint. See Dkt. No. 1; see also Dkt. No. 1-1 at 1 (“This is a civil acting seeking Judgment, relief and/or damages brought pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., as amended, for discrimination based upon a disability and the failure to accommodate same.”).
The ADA “forbids discrimination against persons with disabilities in three major areas of public life[.]” Tennessee v. Lane, 541 U.S. 509, 516 (2004). The first of the three is employment; ADA claims arising in the employment context are called “Title I” claims because they are governed by Title I of the statute. See id. Title II governs “public services, programs, and activities,” and Title III covers “public accommodations.” Id. at 517.
Even afforded a liberal construction, Plaintiff has not pled sufficient facts to support an ADA claim at this juncture and Plaintiff's complaint fails to meet the pleading requirements set forth in Rules 8 and 10 of the Federal Rules of Civil Procedure.
As set forth above, Rule 8 requires, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief ....” Fed.R.Civ.P. 8(a)(2). Each statement must be “simple, concise, and direct,” Fed.R.Civ.P. 8(d)(1), and provide “fair notice of the claims asserted.” Whitfield v. Johnson, 763 Fed.Appx. 106, 107 (2d Cir. 2019) (Summary Order) (citing Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)). 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). “A complaint may be dismissed under Rule 8 if it ‘is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.'” Id. (quoting Simmons, 49 F.3d at 86 (2d Cir. 1995)).
Moreover, as noted above, Rule 10 provides “[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Fed.R.Civ.P. 10(b). The Rule's purpose is “to provide an easy mode of identification for referring to a particular paragraph in a prior pleading[.]” Clervrain v. Robbins, No. 1:22-CV-1248 (MAD/DJS), 2022 WL 17517312, at *2 (N.D.N.Y. Dec. 8, 2022) (citation omitted), report and recommendation adopted, 2023 WL 3170384 (N.D.N.Y. May 1, 2023).
A complaint that fails to comply with basic pleading requirements presents too heavy a burden for defendants to craft a defense, “provides no meaningful basis for the Court to assess the sufficiency of [the plaintiff's] claims[,]” and may properly be dismissed. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). Such is the case here.
Accordingly, the Court recommends dismissal of the complaint because it is not acceptable under Rules 8 and 10 of the Federal Rules of Civil Procedure and, for the reasons set forth below, fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e).
From what the Court can discern, Plaintiff could not proceed with a claim under Title 1 of the ADA because she has neither alleged that she was employed by any Defendant, nor alleged that she exhausted administrative remedies by filing a charge with the Equal Employment Opportunity Commission before pursuing litigation in federal court. 42 U.S.C. § 12117; see Mary Jo C. v. New York State Local Retirement Sys., 707 F.3d 144, 169 (2d Cir. 2013) (citation omitted); see also Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (holding Title I of the ADA does not abrogate Eleventh Amendment sovereign immunity).
To plead a violation of Title II of the ADA, a plaintiff must allege “(1) that she is a qualified individual with a disability; (2) that she was excluded from participation in a public entity's services, programs, or activities or was otherwise discriminated against by a public entity; and (3) that such exclusion or discrimination was due to her disability.” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (brackets omitted) (quoting Hargrave v. Vermont, 340 F.3d 27, 34-35 (2d Cir. 2003)). The public entities defined in the ADA are state or local governments and their instrumentalities. 42 U.S.C. § 12131(1).
Here, the complaint is devoid of factual allegations plausibly suggesting that Plaintiff was excluded or unable to access programs due to her disability, how her disability prevented her from accessing those programs, or what accommodations she sought and was denied by Defendants. See generally Dkt. Nos. 1, 1-1. Rather, it appears Plaintiff is unhappy with the results of her workers' compensation claims because she is “100% disabled” and “is struggling to survive.” Dkt. No. 1-1 at 4; see, e.g., Id. at 10 (“I had to file “Notice of Appeal To the State of New York Supreme Court, Appellate Division, Third Judicial Department From the WCB Decision on NYS Worker's Compensation Board.”); see also Sun v. State Ins. Fund, 161 N.Y.S.3d 474, 475-76 (N.Y. A.D.3d Dep't 2022) (affirming decision of the Workers' Compensation Board, filed August 14, 2020, which, among other things, denied Yi Sun's request to reopen two workers' compensation claims (case number 00319053 and case number 00839618) seeking an increase in her benefits and requesting emergency medical and financial assistance).
As summarized by the Appellate Division, “In October 2002, [Yi Sun] established a workers' compensation claim (case number 00319053) for occupational bronchitis causally related to her employment as a jeweler technician. Ultimately, by decision filed December 20, 2012, claimant was classified with a 40% permanent partial disability and, based upon her average weekly wage, received ongoing benefits at a rate of $78.06 a week. In 2008, [Yi Sun], who was working as a hotel housekeeper, established an additional, unrelated workers' compensation claim (case number 00839618) for work-related injuries to her back, right shoulder and right elbow. In a decision filed January 21, 2015, claimant was classified with a permanent partial disability and found to have sustained a 40% loss of wage-earning capacity, entitling her to 275 weeks of indemnity benefits at a rate of $150 a week. Claimant's permanent partial disability benefits were apportioned equally between the two claims.” Sun, 161 N.Y.S.3d at 475-76.
To state a claim under Title III of the ADA, a plaintiff “must allege (1) that she is disabled within the meaning of the ADA; (2) that defendants own, lease, or operate a place of public accommodation; and (3) that defendants discriminated against her by denying her a full and equal opportunity to enjoy the services defendants provide.” Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008). The complaint fails to allege facts plausibly suggesting that Defendants discriminated against Plaintiff by denying her a full and equal opportunity to enjoy the services that any Defendant provides. See generally Dkt. Nos. 1, 1-1.
Title IV of the ADA does not appear to be applicable to Plaintiff's claims because Title IV prohibits disability discrimination in telecommunications. Genco v. Sargent & Collins LLP, No. 18-CV-0107, 2018 WL 3827742, at *3 n.5 (W.D.N.Y. June 4, 2018).
Finally, Title V of the ADA, sometimes referred to as the “retaliation provision,” also does not appear applicable because Plaintiff does not allege that she engaged in activity protected by the ADA, that Defendants were aware of that activity, or that Defendants took any adverse action against Plaintiff causally related to that protected activity. Chiesa v. New York State Dep't of Labor, 638 F.Supp.2d 316, 323 (N.D.N.Y. 2009); see also Constantine v. Merola, No. 20-CV-1012 (DNH/ML), 2020 WL 8450544, at *5 (N.D.N.Y. Nov. 6, 2020) (recommending dismissal of the plaintiff's Title V ADA claims where the complaint failed to allege that the plaintiff “engaged in any protected activity, that any [d]efendant knew that [p]laintiff was involved in the protected activity, or that any adverse decision or course of action taken by [d]efendants was causally connected to that protected activity.”), report-recommendation adopted, 2021 WL 392487 (N.D.N.Y. Feb. 4, 2021).
In sum, while referencing the ADA, it is unclear how it is that Plaintiff alleges these Defendants violated her rights under that statute. Plaintiff's allegations are conclusory and suggest that Plaintiff is merely dissatisfied with the rulings and/or actions of the WCB and other services provided the Defendants. Indeed, as relief, inter alia, Plaintiff asks the Court to “Order” the WCB to “correct the incorrect information” because “An employee suffering from work-related injury or occupational disease is entitled to work-related injury medical treatment according to laws and regulations.” Dkt. No. 1-1 at 31. She also asks the Court to “Order the WCB (and NYSIF Insurers) must provide medical treatment expenses and disability benefits for injured worker.” Dkt. No. 1 at 4; see also Dkt. No. 1-1 at 31. Setting aside the foregoing pleading defects, this Court does not have jurisdiction to grant Plaintiff any of the requested relief. Dkt. No. 1 at 4; Dkt. No. 1-1 at 31-33. See generally, Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (the plaintiff bears the burden of establishing subject matter jurisdiction).
In addition, Plaintiff's claim may be subject to dismissal based on the Rooker-Feldman doctrine, which directs that except for the Supreme Court, federal courts are not authorized to exercise appellate jurisdiction over state-court judgments. McKithen v. Brown, 481 F.3d 89, 96 (2d Cir. 2007). “The Second Circuit has explicitly applied the Rooker-Feldman doctrine to ADA claims.” Dees v. Zurlo, No. 1:24-CV-1 (MAD/DJS), 2024 WL 2291701, at *16 (N.D.N.Y. May 21, 2024) (citing DiLauria v. Town of Harrison, 64 Fed.Appx. 267, 270 (2d Cir. 2003)).
Accordingly, having carefully reviewed Plaintiff's submissions, the Court recommends dismissal of the complaint for failure to state a claim upon which relief may be granted. See, e.g., Valdez v. Soc. Sec. Admin., No. 8:20-CV-35 (GTS/DJS), 2020 WL 2575892, at *1 (N.D.N.Y. Apr. 23, 2020) (recommending dismissal without prejudice where the ADA form complaint stated that the plaintiff was not provided reasonable accommodations but was not employed by the defendants and appeared to be seeking judicial review of an administrative decision denying benefits under the Social Security Act), report and recommendation adopted, 2020 WL 2574632 (N.D.N.Y. May 21, 2020).
Given that this is the Court's first review of Plaintiff's complaint and she is proceeding pro se, out of an abundance of caution, the Court recommends Plaintiff be granted leave to amend the complaint.
If Plaintiff chooses to file an amended complaint, she should note that the law in this circuit clearly provides that “‘complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.'” Hunt v. Budd, 895 F.Supp. 35, 38 (N.D.N.Y. 1995) (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)); Pourzandvakil v. Humphry, No. 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22, 1995) (Pooler, J.). Any such amended complaint must set forth a short and plain statement of the facts on which she relies to support any legal claims asserted and must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. In addition, the amended complaint must include allegations reflecting that a case or controversy exists between the Plaintiff and the Defendants which Plaintiff has a legal right to pursue, and over which this Court has jurisdiction. Finally, Plaintiff is informed that any such amended complaint will replace the existing complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.” (internal quotation marks omitted)).
VI. CONCLUSION
WHEREFORE, it is hereby
ORDERED that Plaintiff's motion to proceed IFP (Dkt. No. 2) is GRANTED, and it is further
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED WITH LEAVE TO AMEND; and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam) on Plaintiff.
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. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL
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).
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.