Opinion
07 Civ. 1807 (LAK) (KNF).
February 3, 2010
REPORT and RECOMMENDATION
I. INTRODUCTION
Plaintiff Ricardo G. White ("White"), brought this action pro se, pursuant to 42 U.S.C. § 1983, alleging that, while he was incarcerated in New York City's jail facilities, between February 26, 2006, and March 2, 2007, when he filed his complaint with the court, defendants Dr. David Rosenberg and Dr. Edward Berkelhammer (hereinafter "the defendants"), did not provide him "vitally needed" psychotropic medication. As a consequence, according to White, his constitutional rights were violated. Before the Court is the defendants' motion for summary judgment, pursuant to Fed.R.Civ.P. 56. The defendants contend they are entitled to judgment, as a matter of law, because they did not deprive White of medical treatment, and the care and treatment they rendered to White, while he was incarcerated, was, in all respects, proper. In addition, the defendants have requested that the court decline to exercise its supplemental jurisdiction authority over any "identifiable state law claims" asserted by the plaintiff. White opposes the motion, which is analyzed below.
After commencing the action, White engaged counsel.
In responding to the defendants' summary judgment motion, the plaintiff failed to comply with Local Civil Rule 56.1(b) of this court, which requires that he submit a statement of material facts with numbered paragraphs corresponding "to each numbered paragraph in the statement of the moving party, and, if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried." Local Civil Rule 56.1(b) informs that "[e]ach numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party." The Court also notes the plaintiff's failure to comply with Local Civil Rule 7.1(a) of this court, which states that "all motions and all oppositions thereto shall be supported by a memorandum of law, setting forth the points and authorities relied upon in support of or in opposition to the motion and divided, under appropriate headings, into as many parts as there are points to be determined." Furthermore, the plaintiff's counsel submitted an affirmation in opposition to the defendants' summary judgment motion. This contravenes Fed.R.Civ.P. 56(e), which allows supporting or opposing affidavits to be submitted with respect to a summary judgment motion, but they "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated."
II. BACKGROUND
In 1994, White was hit on his head, by a blunt instrument wielded by an unknown assailant. He was admitted to Harlem Hospital, where he remained in a coma for two months, emerging, therefrom, in January 1995. The blow to White's head caused him to suffer a traumatic brain injury. The injury causes White to experience chronic insomnia and a constant headache, making it difficult for him to function daily. White testified, at his deposition, that his constant headache has been diagnosed as "head trauma syndrome."White has been incarcerated in New York City's jail facilities on approximately 54 occasions, between 1991 and 2007. While so incarcerated, White has been treated by the defendants and other medical and mental-health professionals. The defendants are employed as psychiatrists by Prison Health Services, Inc. ("PHS"), a private corporation that contracts with the city of New York to provide medical and mental-health care to the city's inmate population. Among the duties the defendants perform are: making full psychiatric assessments, through which inmates are evaluated, making diagnoses, prescribing medications and, if needed, initiating therapy.
The record indicates that, in or about January 2001, White began taking Elavil, a tricyclic antidepressant used for treating symptoms of depression, for his headaches and to help him sleep. When not incarcerated, White's Elavil prescription has been renewed at Bellevue Hospital. In 2002, Christina Sekaer, M.D., a Bellevue psychiatrist, cautioned the plaintiff about consuming alcohol, while also taking Elavil. That same year, White was referred, by Medicaid, to Alcoholics Anonymous, as Medicaid personnel believed he was an alcoholic. In February 2003, a Bellevue physician determined not to prescribe a higher dose of Elavil for White, due to White's alcohol consumption.
In March 2004, White was incarcerated at the Rikers Island jail facility. An intake history and physical examination performed at the time indicate the plaintiff was taking 250 milligrams of Elavil and may also have been taking Zyprexa, which is used to treat psychotic disorders. White was described, at that time, as having a history of alcohol abuse and hypertension. On March 19, 2004, defendant Dr. Rosenberg, who was then a senior psychiatrist at the jail facility, evaluated the plaintiff. During their meeting, White advised Dr. Rosenberg that he needed Elavil, but did not make reference to his insomnia. Dr. Rosenberg determined the plaintiff was depressed and was stable on his current medications, without any adverse effect. He directed that White be continued on 200 milligrams of Elavil to address White's depression, not his insomnia. Dr. Rosenberg continued White on this treatment plan through June 2004.
During his deposition, Dr. Rosenberg denied that he had ever prescribed Elavil for anyone. However, after being confronted with medical records bearing his signature and showing that he prescribed Elavil for the plaintiff, in 2004, he retreated from his initial position.
On July 22, 2004, Cassandra S. Newkirk, M.D., PHS' director of mental health for the city's jail facilities, and the defendants' superior, issued a memorandum to all psychiatric clinicians directing them to inform inmates that sleep medications would not be prescribed for them, if lack of sleep was their only complaint. The memorandum barred the psychiatric staff, as of August 2, 2004, from issuing new prescriptions for "sleep [medication]." According to Dr. Newkirk's memorandum, prescriptions for sleep medication would, thereafter, be the province of the medical staff, not the mental-health staff. As a result, Dr. Rosenberg did not prescribe medication to address insomnia, for any inmate, after the above-referenced memorandum was issued. Dr. Rosenberg explained that Dr. Newkirk issued her directive because: (a) sleep-aiding medications have side effects; (b) they are used "as a commerce" in jail settings; and (c) if a person gets too much of these types of medications, it can lead to suicide. He explained further that, the jail's mental-health professionals try "to keep the patients safe," and they want inmates to maintain good "sleep hygiene" without treatment. According to Dr. Rosenberg, after Dr. Newkirk's memorandum was issued, the plaintiff was referred to neurologists, on the medical staff, to address his complaints of insomnia, and those physicians prescribed Atarax and Benadryl to treat White's insomnia. However, White contends those medications were ineffective in treating his insomnia.
In February 2006, White was again incarcerated at the Rikers Island jail facility. White's physical and mental status were evaluated at that time. A mental-health clinician evaluated White upon his re-entrance and made a provisional diagnosis of depressive disorder.
In early March 2006, Dr. Rosenberg found that the plaintiff had "no clinical, psychiatric indication for Elavil." When White learned, during a psychiatric assessment, that Elavil would not be prescribed for him, the plaintiff ended the meeting abruptly and left the facility's mental-health area. A psychiatric assessment was performed on the plaintiff, by a nurse practitioner, on March 29, 2006. White complained of being depressed and acknowledged having a history of abusing alcohol and using cocaine, secondary to his medications, because it "relieved some of the tension" he experienced. The nurse practitioner noted that the plaintiff complained of chronic pain and an inability to sleep. White acknowledged, to the nurse practitioner, that he was receiving Benadryl, as a sleep medication, from the medical clinic at Rikers Island. During the nurse practitioner's assessment of the plaintiff, he denied audio or visual hallucinations and any suicidal or homicidal ideations or intent. The nurse practitioner found no clinical indication for Elavil and noted that the feelings White expressed were "typical for being incarcerated." No psychotropic medications were prescribed for the plaintiff, as a result of the March 29 evaluation conducted by the nurse practitioner. The record does not indicate that, after March 2006, Dr. Rosenberg had any involvement in White's treatment.
White was arrested anew and incarcerated at the Rikers Island jail facility on April 27, 2006. During his intake history and physical examination, White denied using alcohol or having hypertension. White's mood was described as euthymic, and he did not report any suicidal or homicidal ideations, delusions or hallucinations. At that time, a physician at the facility, Dr. Eugenio Mateo, prescribed 100 milligrams of Elavil for White, to address "depression."
On April 30, 2006, defendant Dr. Berkelhammer performed a psychiatric assessment of White. Dr. Berkelhammer noted that White "persists in wanting any Rx for depression, particularly Elavil." Dr. Berkelhammer found that Elavil was "contraindicated." Therefore, the prescription for Elavil, that had been written by Dr. Mateo, was discontinued.
On May 4, 2006, White underwent a "Psychiatry-Medication Re-evaluation." The physician who performed the reevaluation found that White had a depressed mood and prescribed 100 milligrams of Elavil for him. The physician made no reference to insomnia. Four days later, another physician renewed the Elavil prescription, but noted the plaintiff exhibited "drug seeking behavior." That physician noted White's traumatic brain injury and anxiety disorder, but made no reference to insomnia.
On May 19, 2006, Dr. Berkelhammer discontinued White's Elavil prescription. In doing so, Dr. Berkelhammer made reference to a report, prepared three weeks earlier, indicating White had no depression and wanted Elavil to facilitate sleeping. Dr. Berkelhammer testified, at his deposition, that he discontinued the plaintiff's Elavil prescription because Elavil is "potentially dangerous[,] and [he] didn't think [the plaintiff] should be receiving it." Dr. Berkelhammer also testified that Elavil "can cause delirium." Dr. Berkelhammer noted, in White's medical records, that Elavil "is strongly anticholinergic" and, further, that it "is best avoided in [cases of] brain injury/questionable dementia." Dr. Berkelhammer explained that he considered Elavil "to be an antiquated, unsafe drug with more side effects than almost anything else [he] could give anybody." Moreover, Dr. Berkelhammer recalled that PHS' medical director had issued an "edict or ukase" prohibiting the use of "Elavil" by her staff, for inmates' sleep complaints, except in the case of inmates for whom a consulting neurologist directed that it be prescribed.
On May 23, 2006, Constantine Canal, M.D., conducted a psychiatry medication reevaluation of the plaintiff. Dr. Canal agreed with Dr. Berkelhammer's determination not to renew the plaintiff's psychotropic medications. Moreover, he concluded that White was malingering. In a May 31, 2006 consultation note, Dr. Berkelhammer remained steadfast in his position that White should not receive Elavil. On June 3, 2006, another physician provided the plaintiff with Benadryl, to treat White's insomnia. While White was incarcerated on several occasions, in New York City jail facilities, after June 2006, the record does not indicate that the defendants treated him on those occasions. The record does indicate that, during those periods of incarceration occurring after June 2006 and in 2007, White received Benadryl for insomnia and was not observed to exhibit any clinical indications for Elavil.
The defendants submitted an affirmation from Paul Nassar, M.D., in support of their summary judgment motion. Dr. Nassar, a physician licensed to practice medicine in New York, is Board-certified in psychiatry and neurology, with a sub-specialty in forensic psychiatry. Dr. Nassar reports that he reviewed "all of the pertinent medical records, the pleadings" as well as "the deposition transcripts" relevant to this action. Based on his review of that material, Dr. Nasser opines, within a reasonable degree of medical certainty, that the defendants' care and treatment of White did not depart from good and accepted practice and that they "acted appropriately in managing Mr. White's care and treatment."
According to Dr. Nasser, Elvail "is a norepinephrine and serotonin reuptake inhibitor that is prescribed to treat the symptoms of depression. It also has anti-cholinergic properties as well which can cause side effects such as lethargy." These side effects can disrupt organ functioning and lead to "disruption of the memory." "Elavil is sometimes prescribed by neurologists to treat chronic headaches," as "it appears to elevate the threshold for pain." Dr. Nasser concludes that it was appropriate for the defendants to prescribe Elavil to treat White, when he appeared in a depressed mood and "stated he felt depressed." However, in instances when White complained of insomnia and headaches, and had "no signs of a psychological disorder," warranting the administration of Elavil, it was appropriate for the defendants to refer White to a neurologist to treat his insomnia and headaches. White neither identified nor submitted evidence from an expert witness to controvert the opinions expressed by Dr. Nasser.
White contends he is a beneficiary of the class action litigation commenced by Brad H. ("Brad H. Litigation"). See Brad H. v. City of New York, 185 Misc.2d 420, 712 N.Y.S.2d 336 (S. Ct. N.Y. Cty. 2000); aff'd, 276 A.D. 2d 440, 716 N.Y.S.2d 852 (App. Div. 1st Dept. 2000). According to White, the Brad H. Litigation requires the defendants to provide him with psychotropic medication, when he is incarcerated in a New York City jail, "simply because [he's] a member of [] Brad H." Therefore, White maintains, whenever the defendants failed to prescribe Elavil for him, between February 26, 2006, and March 2, 2007, they violated his right to medication, afforded by the Brad H. Litigation.
The defendants maintain that the plaintiff's understanding of the effect of the Brad H. Litigation is wrong. According to the defendants, the Brad H. Litigation resulted only in a mandate that the city of New York comply with its legal obligation to furnish a discharge plan to every inmate treated for a mental-health condition, upon release from a New York City jail.See New York Mental Hygiene Law § 29.15. The defendants assert the suit does not override a psychiatrist's ability to exercise professional judgment in determining what medication, if any, to prescribe to an inmate patient.
White also contends that Dr. Rosenberg acted "out of spite," when he did not prescribe Elavil for him, because: (1) the Legal Aid Society made inquiries, of Correction Department administrators, on White's behalf, when White alleged he did not receive any medication, while incarcerated; and (2) White, in 1999, initiated an unsuccessful special proceeding, in state court, pursuant to New York Civil Practice Law and Rules ("CPLR") Article 78, against the city of New York and its Correction Department, alleging he was not allowed to be examined by a neurologist.
III. DISCUSSION
Standard of Review for Summary Judgment
Summary judgment may be granted in favor of the moving party "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(c); see also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998), cert. denied, 524 U.S. 911, 118 S. Ct. 2075 (1998); Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006). When considering a motion for summary judgment, "[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356).
The moving party bears the burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986). "A fact is 'material' for these purposes if it 'might affect the outcome of the suit under the governing law. . . .' An issue of fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510). Once the moving party has satisfied its burden, the non-moving party must come forward with "specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2).
In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon the allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S. Ct. at 1356. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment."Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510 (emphasis omitted). The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor."Id. at 256, 106 S. Ct. at 2514. Summary judgment should only be granted if no rational jury could find in favor of the non-moving party. See Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 721 (2d Cir. 1994).
Brad H. Litigation
White's reliance on his status as a beneficiary of the Brad H. Litigation, in opposing the instant motion for summary judgment, is to no avail. Contrary to the plaintiff's understanding, the Brad H. Litigation did not impose, on the defendants, a requirement that they prescribe Elavil or any other medication for White, based solely on his status, as a beneficiary of the Brad H. Litigation. Rather, the litigation, which was resolved through a negotiated disposition, imposed an obligation on the city of New York "to provide discharge planning" for those of its jail inmates who received "treatment for mental illness while incarcerated." Brad H. v. City of New York, 33 A.D.3d 301, 822 N.Y.S.2d 245, 245-46 (App. Div. 1st Dep't 2006). Accordingly, the plaintiff's status, as a beneficiary of that litigation, does not implicate any rights secured to him via the Constitution and is irrelevant to this action.
Eighth Amendment — Deliberate Indifference to Medical Care
A person who is incarcerated is entitled to receive adequate medical care. See Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994); Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290 (1976). Deliberate indifference to the serious medical needs of an incarcerated person constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment and states a claim under 42 U.S.C. § 1983. See id., at 104-05, 97 S. Ct. at 291. However, "in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute 'an unnecessary and wanton infliction of pain' or to be 'repugnant to the conscience of mankind.' Thus, a complaint that a [healthcare professional] has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment." Id., at 105-06, 97 S. Ct. at 292.
In order for a plaintiff to allege successfully deliberate indifference to serious medical needs, he must satisfy an objective and a subjective test. First, he must establish, objectively, that his medical needs were "sufficiently serious."Wilson v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 2324 (1991). Medical needs are sufficiently serious, for purposes of an Eighth Amendment claim, when they present "a condition of urgency, one that may produce death, degeneration, or extreme pain." See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (citing Nance v. Kelly, 912 F.2d 605, 607 [2d Cir. 1990] [Pratt, J., dissenting]).
"Second, he must establish a subjective component — that [the Defendant 'knew] of and disregard[ed] an excessive risk to [his] health or safety.'" Chatin v. Artuz, No. 95 Civ. 7994, 1999 WL 587885, at *2 (S.D.N.Y. Aug. 4, 1999) (quoting Farmer, 511 U.S. at 837, 114 S. Ct. at 1979). "With respect to the subjective showing, prison officials are not liable 'if they responded reasonably to a known risk, even if the harm ultimately was not averted.'" Chatin, 1999 WL 587885, at *2 (quoting Farmer, 511 U.S. at 826, 114 S. Ct. at 1974); see also Estelle, 429 U.S. at 106-07, 97 S. Ct. at 292-93 (prisoner not entitled to treatment by every medical alternative as long as treatment is reasonable).
Objective Component
The Second Circuit Court of Appeals has identified several factors relevant to determining whether a serious medical condition exists. They include "[t]he existence of an injury that a reasonable [healthcare professional] or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotation marks and citations omitted).
The record evidence establishes that during the relevant time period, February 26, 2006, through March 2, 2007, the defendants, who are psychiatrists, were employed by PHS to treat the mental-health conditions of inmates housed in New York City jails. The defendants were not responsible for treating medical conditions, such as insomnia and headaches. The record also establishes that between February 2006 and June 2006, the last month in the relevant time period when either Dr. Rosenberg or Dr. Berkelhammer treated White, neither the medical records they reviewed nor the individual psychiatric assessments each psychiatrist performed on White, warranted prescribing Elavil or any other psychotropic medication for him, because White did not present with a psychiatric complaint; rather, he complained of a medical condition: insomnia.
Based on the record evidence, the Court cannot conclude that White has satisfied his burden of establishing, objectively, that any psychiatric ailment he had, between the months February 2006 and June 2006, when the defendants treated him, was sufficiently serious, that is, that it presented "a condition of urgency, one that may produce death, degeneration, or extreme pain." See Hathaway, 99 F.3d at 553. While the record evidence does indicate White suffered, inter alia, from chronic insomnia, that medical condition was addressed, by the jail facility's medical clinic, where neurologists prescribed medications, such as Benadryl and Atarax, for White.
Subjective Component
Challenges to medical judgments made concerning the type of treatment an incarcerated person should receive, do not give rise to an Eighth Amendment violation. See Estelle, 429 U.S. at 107, 97 S. Ct. at 292-93. "Although a prisoner is entitled to medical care, he does not have the right to the treatment of his choice."Muhammad v. Francis, No. 94 Civ. 2244, 1996 WL 657922, at *6 (S.D.N.Y. Nov. 13, 1996) (citing McCloud v. Delaney, 677 F. Supp. 230, 232 [S.D.N.Y. 1988]). A prisoner's right to medical care is not the right to have "the type or scope of medical care which he personally desires." United States ex rel. Hyde v. McGinnis, 429 F.2d 864, 867-68 (2d Cir. 1970); see also Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). Moreover, disagreements over proper treatment do not create a constitutional claim. So long as the treatment a prisoner receives is adequate, the fact that the prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation. See Chance, 143 F.3d at 703.
In order to meet the subjective component of an Eighth Amendment claim, a plaintiff must show that the defendant acted with a sufficiently culpable state of mind, since "[d]eliberate indifference is a mental state equivalent to subjective recklessness, as the term is used in criminal law." Salahuddin, 467 F.3d at 280.
White challenges the medical judgment made by the defendants, when each determined not to provide Elavil to him, when he complained of insomnia as opposed to depression or another mental-health condition. While Elavil was White's medication-of-choice to combat insomnia, White has no "right to the treatment of his choice." Muhammed, 1996 WL 657922, at *6;see also United States ex rel Hyde, 429 F.2d at 867-68.
The Court is mindful that White surmises that Dr. Rosenberg did not prescribe Elavil for him because of inquiries made by the Legal Aid Society and because of the unsuccessful litigation White pursued, against a municipality, that: (a) did not involve Dr. Rosenberg; and (b) was commenced before Dr. Rosenberg began to treat the plaintiff. White's theories are not competent evidence establishing that either of the defendants acted with the requisite mental state needed to satisfy the subjective component of White's Eighth Amendment claim.
Furthermore, nothing in the record supports a finding that White suffered serious harm, as a result of the defendants referring him to the jail facility's medical clinic after each of the defendants determined insomnia was not a psychiatric condition, but a medical condition to be treated by physicians who are not psychiatrists. Inasmuch as White has not met his burden, with respect either to the subjective component or the objective component of his Eighth Amendment claim, the Court finds that the defendants are entitled to the relief they seek, through the instant motion.
Medical Malpractice
It appears that the only state-law cause of action raised by the plaintiff is medical malpractice by the defendants. As noted above, an allegation that a healthcare professional was negligent in treating a medical condition "does not state a valid claim of medical mistreatment under the Eighth Amendment." Estelle, 429 U.S. at 105-06, 97 S. Ct. at 292. Moreover, in New York "[t]o establish a prima facie case of liability in a medical malpractice action, a plaintiff must prove (1) the standard of care in the locality where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach was the proximate cause of the injury []. To sustain this burden, a plaintiff must present expert opinion testimony that the defendant's conduct constituted a deviation from the requisite standard of care."Pace v. Jakus, 291 A.D.2d 436, 437, 737 N.Y.S.2d 123, 124-25 (App. Div. 2d Dep't 2002) (citations omitted). To the extent White contends the defendants are liable to him, because their conduct in treating him constitutes medical malpractice, his claim cannot be sustained, because, inter alia, he has failed to proffer evidence from an expert establishing that the defendants deviated from the requisite standard of psychiatric care, when they determined not to prescribe Elavil for his insomnia.
IV. RECOMMENDATION
I recommend that the court exercise its supplemental jurisdiction authority over the plaintiff's medical malpractice cause of action and, further, that with respect to all claims in this action, the court grant the defendants' summary judgment motion, Docket Entry No. 28.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983).