1:24-cv-0376 (BKS/TWD)
05-10-2024
SCOTT PHILLIP LEWIS, Plaintiff, v. ADIRONDACK MEDICAL CENTER, et al., Defendants.
SCOTT PHILLIP LEWIS, Plaintiff, pro se.
THERESE WILEY DANCKS, United States Magistrate Judge.
APPEARANCES:
SCOTT PHILLIP LEWIS, Plaintiff, pro se.
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, United States Magistrate Judge.
The Clerk has sent to the Court for review a civil complaint submitted by pro se plaintiff Scott Phillip Lewis (“Plaintiff”), as well as a motion to proceed in forma pauperis (“IFP”). Dkt. No. 1 (“Compl.”); Dkt. No. 2. For the reasons discussed below, the Court grants Plaintiff's IFP application and recommends that the complaint be dismissed in its entirety with leave to amend.
Plaintiff has filed numerous other actions that are presently pending in this District, as well as others. See, e.g., Lewis v. Town of Elizabethtown, 8:24-CV-00535 (AMN/DJS) (N.D.N.Y. filed Apr. 18, 2024); Lewis v. Paymaster Payroll Sys., Inc., 8:24-CV-00121 (MAD/DJS) (N.D.N.Y. filed Jan. 25, 2024), Dkt. No. 9 (dismissing complaint and entering judgment in favor of the defendants); Lewis v. Walsh, 8:24-CV-00098 (GTS/CFH) (N.D.N.Y. filed Jan. 21, 2024); Lewis v. Essex Cnty., 8:24-CV-00100 (MAD/CFH) (N.D.N.Y. filed Jan. 19, 2024); Lewis v. Despos, LLC, 8:24-CV-00079 (AMN/CFH) (N.D.N.Y. filed Jan. 17, 2024); Lewis v. R. L. Vallee, Inc., 8:24-CV-00069 (AMN/DJS) (N.D.N.Y. filed Jan. 16, 2024), Dkt. No. 17 (dismissing complaint with leave to amend); Lewis v. Affiliated Enter. Sol., LLC, 8:24-CV-00061 (BKS/DJS) (N.D.N.Y. filed Jan. 15, 2024), Dkt. No. 17 (dismissing complaint with leave to amend); Lewis v. Redline Hockey, LLC, 8:24-CV-00068 (BKS/DJS) (N.D.N.Y. filed Jan. 15, 2024), Dkt. No. 17 (dismissing complaint with leave to amend); Lewis v. Citizens United, Inc., 8:24-CV-00029 (DNH/DJS) (N.D.N.Y. filed Jan. 8, 2024), Dkt. No. 22 (dismissing complaint with leave to amend); Lewis v. Adirondack Med. Ctr., 8:24-CV-00027 (BKS/DJS) (N.D.N.Y. filed Jan. 7, 2024), Dkt. No. 17 (dismissing complaint with leave to amend); Lewis v. Onondaga Cnty., 8:24-CV-00013 (GTS/DJS) (N.D.N.Y. filed Jan. 3, 2024), Dkt. No. 11 (Report-Recommendation recommending dismissal pending review); Lewis v. Essex Cnty., 8:23-CV-01636 (TJM/CFH) (N.D.N.Y. filed Dec. 26, 2023); Lewis v. Williamson Cnty., 1:24-CV-00118 (ADA) (W.D. Tex. filed Jan. 29, 2024); Lewis v. Franklin Cnty., 8:23-CV-1647 (DNH/CFH) (N.D.N.Y. filed Dec. 28, 2023), Dkt. No. 10 (Report-Recommendation recommending dismissal pending review); Lewis v. Williamson Cnty., 1:21-CV-00074 (ADA/SH) (W.D. Tex. filed Jan. 25, 2021), Dkt. No. 142 (Report-Recommendation recommending granting summary judgment in favor of the defendants pending review).
I. IFP APPLICATION
Plaintiff has not paid the filing fee for this action and seeks leave to proceed IFP. Dkt. No. 2. Upon review, Plaintiff's IFP application demonstrates economic need. See 28 U.S.C. § 1915(a)(1). Therefore, he is granted permission to proceed IFP.
II. BACKGROUND
On January 7, 2024, Plaintiff submitted a complaint against Adirondack Medical Center d/b/a Adirondack Health alleging violations of Title III of the American with Disabilities Act (“ADA”), 42 U.S.C. § 1218 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Lewis v. Adirondack Med. Ctr., No. 8:24-cv-27 (BKS/DJS) (N.D.N.Y. filed Jan. 7, 2024) (“Lewis I”). On February 29, 2024, United States Magistrate Judge Daniel J. Stewart granted Plaintiff's application to proceed IFP and recommended Plaintiff's complaint be dismissed with leave to amend. Lewis I, Dkt. Nos. 13, 14. As detailed therein, Plaintiff's claims under both the ADA and Rehabilitation Act stemmed from Adirondack Medical Center's purported failure to timely provide physical therapy service in 2022, which Plaintiff alleged was financially motivated. Lewis I, Dkt. No. 14 at 4. On March 18, 2024, Plaintiff filed objections to the Report-Recommendation. Lewis I, Dkt. No. 16.
By Memorandum-Decision and Order issued April 17, 2024, Chief United States District Judge Brenda K. Sannes adopted Magistrate Judge Stewart's Report-Recommendation and dismissed the complaint with leave to amend. Lewis I, Dkt. No. 17. Any amended complaint must be filed by July 4, 2024. Lewis I, Dkt. No. 19. To date, Plaintiff has not filed an amended complaint in Lewis I.
On March 19, 2024, Plaintiff filed the complaint in the instant matter against Adirondack Medical Center, Lake Placid Sports Medicine, PLLC, CDPHP Universal Benefits, Inc., Eugene Byrne, Daniel P. Bullock, Bartlomiej Szczech, Tracey Viola, and William J. Smith alleging violations of the ADA and 42 U.S.C. § 1985(3). Compl. at ¶¶ 1-9.,
Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
According to Plaintiff, “[t]he claims made without this complaint are wholly separate from any made within Plaintiff's previous complaint made against Adirondack Medical Center.” Compl. at ¶ 19. However, the facts as alleged in the instant matter bear, at least some, relation to those facts asserted in Lewis I. Compare Lewis I, Dkt. No. 1 with Compl.
Plaintiff explains he sought treatment at Adirondack Medical Center in March 2022 for chronic pain from a “previously injured left wrist, hand and fingers and left shoulder.” Id. at ¶ 12. Further, he states he was diagnosed with attention-deficit hyperactivity disorder (“ADHD”) and post traumatic stress disorder (“PTSD”) in January 2022 and May 2023, respectively. Id. at ¶ 16. Plaintiff complains that “After being denied medical care by Adirondack Medical Center, Plaintiff's injuries still produced chronic pain that disrupted Plaintiff's everyday life.” Id. at ¶ 20. In April 2023, Plaintiff was scheduled for an MRI. Id. at ¶ 22. “Plaintiff was on Medicaid through CDPHP Universal Benefits, Inc.” Id. “Plaintiff was told the imaging would be done on the left forearm. Plaintiff was immediately concerned because the injury was within the left wrist, hand and fingers, and not the forearm.” Id. at ¶ 23. “Plaintiff was told that the insurance company could only take images on the forearm since that was the imaging that was approved.” Id. at ¶ 24. Although he was “enraged,” Plaintiff proceeded with the imaging of the forearm. Id. “The results of the first MRI were inconclusive, since it did not take an image of the injury.” Id. at ¶ 25. “When Plaintiff brought this to the attention of the Adirondack Medical Center, Plaintiff was told by Dr. Lindsay Wilhelm, the physician who made the referral, said that Plaintiff never mentioned injuries to his hand and fingers.” Id. According to Plaintiff, “[t]his is a bold faced lie.” Id. at ¶ 26. “Plaintiff perceived the imaging taken on the wrong body part to be organized fraud to take advantage of Plaintiff's [M]edicaid insurance.” Id. at ¶ 27. He further claims. “[t]his tactic is done knowing that Plaintiff will need to return for additional MRI's (sic) after images on the wrong body part are taken.” Id.
Plaintiff “eventually” received MRIs of the left wrist, hand, and fingers and left shoulder. Id. at ¶ 28. “His left shoulder was diagnosed with a torn labrum.” Id. Plaintiff claims he “has never reviewed these MRI's (sic) with staff from Adirondack Medical Center or any other individual.” Id at 29. “Instead, Plaintiff was referred to Lake Placid Sports Medicine in Lake Placid, New York.” Id. at ¶ 30.
“Before being seen by a physician, Plaintiff was told they needed to complete ‘a nerve test' in Plattsburgh, New York or Queensbury, New York.” Id. “Plaintiff declined the unnecessary testing prior to being seen by a physician.” Id. “After refusing a nerve test that would not benefit Plaintiff's injuries in any way but instead would benefit Defendant with monetary incentives, Plaintiff was told that there were no physicians available who would be able to treat his injuries.” Id. at ¶ 31. “Plaintiff was discontinued and refused to be seen in the future by Adirondack Health on or around May 2023.” Id. at ¶ 33. In June 2023, Plaintiff “reported the suspected fraud to CDPHP Universal Benefits, Inc.” but “was told, after investigation, that they cannot direct physicians how to run their businesses.” Id. at ¶ 34. According to Plaintiff, “CHPHP admitted that if medical professionals were abusing Medicaid reimbursements by ordering MRI's (sic) on the wrong body part, they would participate in the scheme.” Id.
The complaint lists two claims: (1) a Title III ADA claim against Lake Placid Sports Medicine, PLLC; id. at ¶¶ 35-40; and (2) a 42 U.S.C. § 1985(3) conspiracy claim against “All Defendants,” id. at ¶¶ 41-43. See also Dkt. No. 1-1 (citing “42 U.S.C. § 1985(3) Conspiracy to violate Americans with Disabilities Act 1990” and indicating “I'm just a poor boy from a poor family (with disabilities).”). As relief, Plaintiff seeks monetary damages. Id. at ¶ 46. For a complete statement of Plaintiff's claims, reference is made to the complaint.
III. STANDARD OF REVIEW
Section 1915 of Title 28 requires a district court to dismiss an IFP 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).
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 quotation marks and citation omitted). 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding “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.”).
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). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id at 678. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation marks and citations omitted); see also Fed.R.Civ.P. 8(a)(2).
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 at 663.
Generally, before the Court dismisses a pro se complaint or any part of the complaint sua sponte, the Court should afford the plaintiff the opportunity to amend at least once; however, leave to re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); see also Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999). Futility is present when the problem with 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) (citation omitted).
IV. ANALYSIS
Having liberally construed Plaintiff's complaint, Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the Court recommends it be dismissed for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii).
A. Plaintiff's ADA Claim against Lake Placid Sports Medicine, PLLC
Title III of the ADA prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). To state a claim under Title III, Plaintiff must allege that: (1) he has a disability; (2) Defendant owns, leases, or operates a place of public accommodation; and (3) that Defendant discriminated against Plaintiff within the meaning of the ADA. Roberts v. Royal Atl. Corp., 542 F.3d 363, 368 (2d Cir. 2008); see Rossman v. Dollar Gen. Corp., 368 F.Supp.3d 422, 426-27 (N.D.N.Y. 2019) (finding that plaintiff stated a claim under Title III of the ADA where she specifically alleged that, on two occasions, she had visited retailer's store and had encountered physical impediments that prevented her from navigating through the store in a wheelchair).
Plaintiff has not alleged an ADA claim against Lake Placid Sports Medicine, PLLC sufficient to withstand initial review. First, Plaintiff has not plausibly alleged he is disabled within the meaning of the ADA. The ADA defines “disability” as: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). “A diagnosis alone is insufficient to establish disability under the statute.” Terpening v. McGinty, No. 1:21-CV-1215 (GTS/CFH), 2022 WL 17418268, at *8 (N.D.N.Y. Oct. 5, 2022) (citations omitted), report-recommendation adopted, 2022 WL 17415121 (N.D.N.Y. Dec. 5, 2022).
Plaintiff's assertions that he has been diagnosed with ADHD and PTSD “without additional factual allegations to show how a major life activity is or was substantially limited by such conditions is not enough to satisfy his pleading burden under either prong (A) or prong (B) of the definition.” Lewis v. Redline Hockey, LLC, No. 8:24-CV-68 (BKS/DJS), 2024 WL 1652491, at *3 (N.D.N.Y. Apr. 17, 2024); see also Lewis v. R.L. Vallee, Inc., No. 8:24-CV-69 (AMN/DJS), 2024 WL 1739608, at *3 (N.D.N.Y. Apr. 23, 2024) (finding Plaintiff's allegations insufficient to allege he was disabled under ADA because Plaintiff did not describe how his ADHD or PTSD substantially limited a major activity). “And Plaintiff has not alleged facts that suggest [Lake Placid Sports Medicine, PLLC] perceived him as disabled, such that he would meet the definition under prong (C).” Lewis v. Redline Hockey, LLC, 2024 WL 1652491, at *3.
Second, Plaintiff has not pled Lake Placid Sports Medicine, PLLC's actions constituted discrimination under Title III of the ADA or resulted in the discriminatory provision of services to Plaintiff. Discrimination on the basis of disability in public accommodations involves, among other things, “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.” Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008) (citing 42 U.S.C. § 12182(b)(2)(A)(iii)); see also Krist v. Kolombos Rest. Inc., 688 F.3d 89, 94 (2d Cir. 2012) (quoting 42 U.S.C. § 12182(b)(2)(A)(ii) (“The Act defines discrimination to include . . . ‘a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods [and] services . . . to individuals with disabilities, unless . . . such modifications would fundamentally alter the nature of such goods [and] services.'”)). Although Plaintiff alleges Lake Placid Sports Medicine, PLLC engaged in a “fraudulent scheme for monetary incentives while ultimately refusing treatment to Plaintiff,” Compl. at ¶ 32, and Plaintiff was “told” there were “no physicians available who would be able to treat his injuries” after he refused “a nerve test,” id. at ¶¶ 30-32, Plaintiff does not allege Lake Placid Sports Medicine, PLLC took these actions for the purpose of discriminating against him because of an alleged disability.
Third, Plaintiff only seeks monetary damages-not injunctive relief. See Compl. at ¶ 46. However, as explained in Lewis I, “[i]t is well established that Title III of the ADA allows only for injunctive relief, not monetary damages.” Lewis v. Adirondack Med. Ctr., No. 8:24-CV-27 (BKS/DJS), 2024 WL 1652458, at *4 (N.D.N.Y. Apr. 17, 2024) (quoting Bacon v. Walgreen Co., 91 F.Supp.3d 446, 451 (E.D.N.Y. 2015) (citing Brief v. Albert Einstein C. of Med., 423 Fed.Appx. 88, 90 (2d Cir. 2011))).
Accordingly, based on the foregoing, and for substantially the same reasons set forth in Lewis I, the Court recommends Plaintiff's ADA claim against Lake Placid Sports Medicine, PLLC be dismissed for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii).
B. Plaintiff's 42 U.S.C. § 1985(c) Claim against “All Defendants”
“Section 1985 prohibits conspiracies to deprive individuals of civil rights.” Johnson v. N.Y.C., 669 F.Supp.2d 444, 451 (S.D.N.Y. 2009). To state a conspiracy claim under 42 U.S.C. § 1985(3), a plaintiff must allege: “(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; and (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.” Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 791 (2d Cir. 2007); accord Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999). Further, the “conspiracy must also be motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action.” Cine SK8, Inc., 507 F.3d at 791.
“Complaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct.” Walker v. O'Connor, No. 1:22-CV-581 (DNH/TWD), 2022 WL 2341420, at *4 (N.D.N.Y. June 29, 2022) (citation omitted), report-recommendation adopted, 2022 WL 2805462 (N.D.N.Y. July 18, 2022); see, e.g., Webb v. Goord, 340 F.3d 105, 110-11 (2d Cir. 2003) (“The plaintiffs have not alleged, except in the most conclusory fashion, that any such meeting of the minds occurred among any or all of the defendants. Their conspiracy allegation must therefore fail.”); Morpurgo v. Inc. Vill. of Sag Harbor, 697 F.Supp.2d 309, 340 (E.D.N.Y. 2010) (concluding the § 1985 conspiracy claim failed because “Plaintiff has provided only conclusory, vague and unsupported allegations . . . as a basis for asking the Court to find the existence of a conspiracy.”), aff'd, 417 Fed.Appx. 96 (2d Cir. 2011). “Moreover, a § 1985 conspiracy claim fails as a matter of law where there is no underlying constitutional violation.” Walker, 2022 WL 2341420, at *4 (citing Oliver v. Penny, No. 21-111, 2022 WL 2165814, at *3 (2d Cir. June 16, 2022) (summary order) (concluding plaintiff's § 1985 conspiracy claim “failed because she did not plausibly allege an underlying constitutional violation”)).
Here, Plaintiff has not alleged a conspiracy claim sufficient to withstand initial review. First, the complaint contains only “conclusory, vague, or general allegations, ” that “All Defendants” engaged in a conspiracy. See Compl. at ¶¶ 41-42. Although Plaintiff alleges “Defendants participated in a scheme to maximize their financial interests while refusing to provide medical care to Plaintiff,” and “conspired in a fraudulent scheme” “to maximize profits while refusing to treat Plaintiff”“ he fails to advance any factual allegations to support such conclusory statements. Id. at ¶ 42; see, e.g., Mir v. Zucker, No. 19-CV-06374, 2019 WL 5693695, at *7 (S.D.N.Y. Nov. 1, 2019) (“vague and unsupported” allegations regarding conspiracy insufficient to state claim under § 1985). Second, Plaintiff has failed to adequately allege the necessary racial or other invidious discriminatory animus. Cine SK8, Inc., 507 F.3d at 791; see, e.g., Wiltz v. New York Univ., No. 1:19-CV-03406, 2019 WL 8437456, at *15 (S.D.N.Y. Dec. 23, 2019), report-recommendation adopted, 2020 WL 614658 (S.D.N.Y. Feb. 10, 2020). Third, as discussed above, Plaintiff has not plausibly alleged an underlying violation of the ADA. See, e.g., Tirse v. Gilbo, No. 6:15-CV-0987 (GTS/ATB), 2016 WL 4046780, at *18 (N.D.N.Y. July 27, 2016) (“Because the Court has found that Plaintiff has failed to allege facts plausibly suggesting a conspiracy and/or an underlying constitutional violation, Plaintiff's § 1985 claim is likewise dismissed.”).
Accordingly, this Court recommends that Plaintiff's Section 1985(3) claim against “All Defendants” be dismissed for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii).
C. Leave to Amend
In deference to Plaintiff's pro se status and out of an abundance of caution, the Court recommends Plaintiff be afforded the opportunity to file an amended complaint to cure the deficiencies identified above. See Gomez, 171 F.3d at 796. The amended pleading must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Any amended complaint submitted by Plaintiff must also demonstrate that a case or controversy exists between the Plaintiff and the Defendants which Plaintiff has a legal right to pursue. Plaintiff is cautioned that no portion of his prior complaint shall be incorporated into his amended complaint by reference.
V. CONCLUSION
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's motion to proceed IFP (Dkt. No. 2) is GRANTED, and it is further
Plaintiff is advised that, although he has been granted IFP status, he is still required to pay any fees and costs he may incur in this action, including, but not limited to, copying fees, transcript fees, and witness fees.
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED WITH LEAVE TO AMEND; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation and Order, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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 Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation and Order 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).
IT IS SO ORDERED.