Opinion
Civil Action No. 9:15-CV-0909 (GLS/DEP)
01-20-2017
JOSE FIGUERAS, Plaintiff, v. D. VENETTOZZI and CAPTAIN WILKINS, Defendants.
APPEARANCES: FOR PLAINTIFF: JOSE FIGUERAS, Pro Se 89-B-2337 Fishkill Correctional Facility P.O. Box 1245 Beacon, New York 12508 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, New York 12224 OF COUNSEL: JOHN F. MOORE, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: JOSE FIGUERAS, Pro Se
89-B-2337
Fishkill Correctional Facility
P.O. Box 1245
Beacon, New York 12508 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, New York 12224 OF COUNSEL: JOHN F. MOORE, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
This is a civil rights action brought by pro se plaintiff Jose Figueras, a New York State prison inmate, against two individuals employed by the New York State Department of Corrections and Community Supervision ("DOCCS"), pursuant to 42 U.S.C. § 1983. In his complaint, plaintiff alleges that during the course of a disciplinary hearing and the ensuing appeal process, his procedural due process rights were violated by defendants.
Currently pending before the court is a motion by defendants seeking the entry of summary judgment dismissing plaintiff's complaint. Plaintiff has not opposed defendants' motion. For the reasons set forth below, I recommend that the motion be granted. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is a New York State prison inmate currently being held in the custody of the DOCCS. See generally Dkt. No. 1. Although he is now housed elsewhere, at the times relevant to the events giving rise to this action, plaintiff was confined in Eastern Correctional Facility ("Eastern"), located in Napanoch, New York. Id. at 1-2; Dkt. No. 25-2 at 71.
This action arises out a misbehavior report issued to plaintiff on May 13, 2013, by Corrections Officer N. Damian, who is not a named defendant. Dkt. No. 1 at 2-3; see also Dkt. No. 25-2 at 73, 81. In that misbehavior report, Damian accused plaintiff of violating several prison rules, charging him with interference, stalking, harassment, and refusing a direct order. Dkt. No. 25-2 at 13, 106. In its entirety, the misbehavior report reads as follows:
Inmate Figueras has initiated several interactions with me that are inappropriate and personal. On Thursday May 9, 2013 [sic] while sitting at a table writing, I felt someone grab my left foot and said 'boo'. [sic] I immediatly [sic] turned to my left and saw inmate Figueras bent down next to me. I told him that his actions were not appropriate. On several occassions [sic] while walking in the North Hall parking lot, I heard an inmate yell out the window to me, which I ignored. Last week inmate Figueras told me that he was trying to get my attention by yelling to me in the parking lot. He questioned me on what type of music I was listening to in my car. On May 11, 2013, while I was speaking with another inmate he repeatedly interrupted and attempted to persuade my decision in favor of the inmate. I gave him several direct orders to stop interfering but he continued to interupt [sic] me. He raised his voice gaining the attention of the other inmates in the area. I then told him to leave the area and he complied.Id.
A Tier III disciplinary hearing was conducted by defendant Captain Wilkins in connection with the misbehavior report beginning on May 15, 2013, and concluding on May 28, 2013. Dkt. No. 25-2 at 21, 44, 110. At the hearing several witnesses testified, including Damian. Id. at 21-44. To the extent relevant to plaintiff's claims in this action, Damian testified that she heard "somebody like say shu shu out the North Hall window" on an unspecified date, but definitely "sometime before the 9th [of May]." Id. at 28. Damian further stated that she did not know who called out the window to her, and she ignored the comment at the time. Id. No one else testified at the disciplinary hearing regarding this aspect of the misbehavior report. Plaintiff objected to the stalking charge on the ground that the misbehavior report did not specify a date or time associated with the allegation that he called to Damian out a window. Id. at 23. According to plaintiff, as a result of that omission, he was unable to mount a meaningful defense to the charge. Id.; see also Dkt. No. 1 at 7.
The DOCCS conducts three types of inmate disciplinary hearings. See 7 N.Y.C.R.R. § 270.3; see also Hynes v. Squillace, 143 F.3d 653, 655 n.1 (2d Cir. 1998). Tier I hearings address the least serious infractions and can result in minor punishments such as the loss of recreation privileges. Hynes, 143 F.3d at 655 n.1. Tier II hearings involve more serious infractions, and can result in penalties which include confinement for a period of time in the SHU. Id. Tier III hearings address the most serious violations and can result in unlimited SHU confinement and the loss of "good time" credits. Id.
The disciplinary hearing was conducted over the course of several, non-consecutive days to accommodate the availability of certain witnesses. See generally Dkt. No. 25-2 at 21-44.
With respect to the charge in the misbehavior report accusing plaintiff of disobeying a direct order, Damian testified at the disciplinary hearing that plaintiff would not listen to her on May 11, 2013, and that he did not remain silent when she directed him to do so. Dkt. No. 25-2 at 29. Several other witnesses, all called on behalf of the plaintiff, testified that plaintiff and Damian were not arguing on May 11, 2013, and that Damian never ordered plaintiff to stop interfering. Id. at 35, 37-38, 40. One of plaintiff's witnesses, however, acknowledged that Damian instructed plaintiff to leave the area and mind his own business. Id. at 34.
At the conclusion of the disciplinary hearing, plaintiff was exonerated in connection with the harassment charge but found guilty of disobeying a direct order, interference, and stalking. Dkt. No. 25-2 at 44, 47. In his written statement explaining the evidence upon which he relied in rendering his determination, defendant Wilkins stated the following:
The written misbehavior report & verbal testimony of CO Damien [sic]. One of the witnesses stated that CO Damien [sic] did tell you to not get involved with her verbal counseling another [inmate] & you disregarded that order & continued to intervine [sic] on the other [inmate's] behalf. CO Damien [sic] testimony indicates that you were attempting to get
familiar with her on a personal level which is inappropriate.Id. at 49. As a penalty, defendant Wilkins imposed 107 days of disciplinary confinement in the facility's special housing unit ("SHU") coupled with the loss of certain privileges for a period of ninety days. Id.
Plaintiff appealed defendant Wilkins' determination to defendant D. Venettozzi, the Acting Director of the DOCCS Special Housing/Inmate Disciplinary Program. Id. at 51-57. With respect to defendant Wilkins' determinations related to the interference and refusing-a-direct-order charges, plaintiff argued on appeal that that none of the witnesses testified during the disciplinary hearing that Damian directed him to not get involved with her verbal counseling of another inmate. Id. at 52, 126. With respect to the stalking determination, plaintiff argued that 7 N.Y.C.R.R. § 251-3.1 was violated because the date, time, and place of the incident was not specifically delineated in the misbehavior report. Id. at 55. On July 24, 2013, defendant Venetozzi affirmed the determination rendered by defendant Wilkins. Id. at 59.
In relevant part, section 251-3.1 mandates that a "misbehavior report shall include . . . the date, time, and place of the incident[.]" 7 N.Y.C.R.R. § 251-3.1(c)(3).
As a result of defendant Wilkins' determination, plaintiff served eighty-four days of SHU confinement instead of the 107 days to which he was sentenced. Dkt. No. 25-2 at 112-13. The remaining twenty-three days of his sentence were converted to keeplock confinement following his transfer into another prison facility. Id. at 113.
II. PROCEDURAL HISTORY
Plaintiff commenced this action in the Southern District of New York on or about July 13, 2015, with the filing of a complaint and accompanying application to proceed in the case in forma pauperis ("IFP"). Dkt. Nos. 1, 2. District Judge Loretta A. Preska thereafter directed that the action be transferred to this district by order dated July 21, 2015. Dkt. No. 4. Although plaintiff's initial IFP application was denied as incomplete, see Dkt. No. 6, he filed a second motion for leave to proceed without prepayment of fees, which was subsequently granted in a decision issued by Senior District Judge Gary L. Sharpe. Dkt. Nos. 9, 13. In his decision, Judge Sharpe also reviewed plaintiff's complaint pursuant to 28 U.S.C. §§ 1915(e), 1915A and dismissed all claims asserted against defendants Wilkins and Venettozzi in their official capacities, but otherwise accepted plaintiff's complaint for filing. Dkt. No. 13.
Following the close of discovery, defendants filed the currently pending summary judgment motion seeking dismissal of the remaining due process causes of action asserted against them. Dkt. No. 25-5. In their motion, defendants argue that no reasonable factfinder could conclude that plaintiff's due process rights were violated in connection with the disciplinary hearing conducted by defendant Wilkins. See generally id. In the alternative, defendants contend that they are entitled to qualified immunity from suit. Id. Although plaintiff was afforded an opportunity to respond to defendants' motion, and was granted an extension of time to do so, he has failed to file any opposition with the court. Dkt. Nos. 27, 28. Defendants' motion is now fully briefed and has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Plaintiff's Failure to Oppose Defendants' Motion
Before turning to the merits of defendants' motion, I must first address the threshold issue of the legal significance of plaintiff's failure to oppose defendants' motion.
Pursuant to local rule 7.1(b)(3), by failing to oppose defendants' motion, plaintiff has effectively consented to the granting of the relief sought. That rule provides as follows:
Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as this Rule requires shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause is shown.N.D.N.Y. L.R. 7.1(b)(3); see also Jackson v. Fed. Express, 766 F.3d 189, 194 (2d Cir. 2014) (holding that district courts may enter summary judgment in favor of a moving party where the non-moving party fails to respond in opposition, but not without first "ensur[ing] that each statement of material fact is supported by record evidence sufficient to satisfy the movant's burden of production" and "determin[ing] whether the legal theory of the motion is sound").
In this case, plaintiff has not responded to defendants' motion. The motion was properly filed by defendants Wilkins and Venettozzi, and defendants, through their motion, have met their burden of demonstrating prima facie entitlement to the relief requested. With respect to the question of whether defendants have met his burden, I note that the "burden of persuasion is lightened such that, in order to succeed, their motion need only be 'facially meritorious.'" See Rodriguez v. Goord, No. 04-CV-0358, 2007 WL 4246443, at *1 (N.D.N.Y. Nov. 27, 2007) (Scullin, J., adopting report and recommendation by Lowe, M.J.) (finding that whether a movant has satisfied its burden to demonstrate entitlement to a dismissal under rule 7.1(b)(3) "is a more limited endeavor than a review of a contested motion to dismiss" (citing cases)).
All unreported cases cited to in this report have been appended for the convenience of the pro se plaintiff.
Because defendants have accurately cited both proper legal authority and evidence in the record supporting the facts which, they contend, are undisputed grounds on which their motion is based, and plaintiff has failed to respond in opposition to the summary judgment motion, I find that defendants' motion is facially meritorious. Jackson, 766 F.3d at 194. Accordingly, I recommend that the court grant defendants' motion on this basis.
It should also be noted that there are additional consequences as a result of plaintiff's failure to oppose defendants' motion, and in particular his failure to respond to defendants' local rule 7.1(a)(3) statement of material facts. Local rule 7.1 provides, in relevant part, that "[t]he Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y. L.R. 7.1(a)(3) (emphasis in original). Courts in this district have routinely enforced this rule in cases where a non-movant has failed to properly respond. See, e.g., Elgamil v. Syracuse Univ., No. 99- CV-0611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2010) (McCurn, J.) (listing cases). Undeniably, pro se litigants are entitled to some measure of forbearance when defending against summary judgment motions. Jemzura v. Public Serv. Comm'n, 961 F. Supp. 406, 415 (N.D.N.Y.1997) (McAvoy, J.). The deference owed to pro se litigants, however, does not extend to relieving them of the ramifications associated with the failure to comply with the court's local rules. Robinson v. Delgado, No. 96-CV-0169, 1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler, J., adopting report and recommendation by Hurd, M.J.). Stated differently, "a pro se litigant is not relieved of his duty to meet the requirements necessary to defeat a motion for summary judgment." Latouche v. Tompkins, No. 09-CV-0308, 2011 WL 1103045, at *1 (N.D.N.Y. Mar. 23, 2011) (Mordue, J.).
Here, because plaintiff was warned of the consequences of failing to properly respond to defendants' local rule 7.1 statement, see Dkt. No. 25 at 3, Dkt. No. 26 at 2, and nonetheless has failed to do so, I recommend that the court deem the facts contained in defendants' local rule 7.1(a)(3) statement as having been admitted to the extent they are supported by accurate record citations. See, e.g., Latouche, 2011 WL 1103045, at *1; see also Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996).
As to any facts not contained in defendants' local rule 7.1(a)(3) statement, in light of the procedural posture of this case, the court is "required to resolve all ambiguities and draw all permissible factual inferences" in favor of plaintiff. Terry, 336 F.3d at 137.
B. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; when this burden is not met, the motion must be denied. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
C. Plaintiff's Due Process Claims
Although I have recommended dismissal of plaintiff's complaint based on his failure to respond to defendants' motion, out of an abundance of caution, I have also reviewed the merits of defendants' motion.
Plaintiff alleges that defendant Wilkins violated his due process rights by (1) relying on a witness' testimony that plaintiff refused Damian's direct order on May 11, 2013, in determining that plaintiff was guilty of the violation charged; and (2) finding him guilty on the stalking charge despite the fact the misbehavior report did not include a date and time for the alleged incident forming a basis for the accusation. See, e.g., Dkt. No. 2 at 6-7. Plaintiff accuses defendant Venettozzi of violating his due process rights by affirming defendant Wilkins' disposition at the disciplinary hearing. Id. at 7.
To establish a procedural due process claim under section 1983, a plaintiff must show that he (1) possessed an actual liberty interest, and (2) was deprived of that interest without being afforded sufficient process. Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998); Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996).
In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court determined that, to establish a liberty interest deprivation in the context of a prison disciplinary proceeding resulting in removal of an inmate from the general prison population, a plaintiff must demonstrate that (1) the state actually created a protected liberty interest in being free from segregation, and (2) the segregation would impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 483-84; Tellier, 280 F.3d at 79-80; Hynes, 143 F.3d at 658. The prevailing view in this circuit is that, by its regulatory scheme, the State of New York has created a liberty interest in remaining free from disciplinary confinement, thus satisfying the first Sandin factor. See, e.g., LaBounty v. Coombe, No. 95-CV-2617, 2001 WL 1658245, at *6 (S.D.N.Y. Dec. 26, 2001); Alvarez v. Coughlin, No. 94-CV-0985, 2001 WL 118598, at *6 (N.D.N.Y. Feb. 6, 2001) (Kahn, J.). Accordingly, to determine whether a plaintiff may prevail on his due process claim, courts inquire whether the allegations related to the conditions of a plaintiff's disciplinary confinement rise to the level of an atypical and significant hardship under Sandin.
Atypicality in a Sandin inquiry is normally a question of law. Colon v. Howard, 215 F.3d 227, 230-31 (2d Cir. 2000); Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999). "[W]hether the conditions of a segregation amount to an 'atypical and significant hardship' turns on the duration of the segregation and a comparison with the conditions in the general population and in other categories of segregation." Arce v. Walker, 139 F.3d 329, 336 (2d Cir. 1998) (citing Brooks v. DiFasi, 112 F.3d 46, 48-49 (2d Cir. 1997)).
In cases involving relatively short periods of segregated confinement, where the plaintiff has not alleged that he was subjected to any unusual conditions beyond those typical of an SHU setting, a court may not need to undergo a detailed analysis of the conditions of confinement. Arce, 139 F.3d at 336; Hynes, 143 F.3d at 658. For cases like this one that involve periods of disciplinary confinement falling between 101 and 305 days, in order to determine whether a plaintiff has suffered an atypical hardship, and therefore has been deprived a liberty interest, the court is required to go further and "articulate specific findings of the conditions of the imposed confinement relative to the ordinary prison conditions[.]" Reynoso v. Selsky, 292 F. App'x 120, 123 (2d Cir. 2008).
During his deposition in this matter, plaintiff described both the conditions of confinement for DOCCS inmates in general population, as well as the conditions of his confinement while in the SHU and keeplock. Plaintiff testified that while in general population, he participated in two vocations, one in the morning, and one in the afternoon. Dkt. No. 25- 2 at 74. He exercised once per day, communicated with his wife for one-half hour daily, and occasionally watched television. Id. at 75-76. In addition, while there is no air conditioning in general population, inmates are permitted to possess individual fans. Id. at 121. Plaintiff did not testify regarding the duration of his daily recreation or how often he was permitted to shower while in general population.
Turning to the conditions of confinement he experienced while housed in the SHU, plaintiff testified that he was confined in a sealed room with little air circulation, no air conditioning, and no fans during the summer months of May, June, July, and August. Dkt. No. 25-2 at 117-18, 121. Because of the heat, plaintiff suffered two nosebleeds. Id. 118. Although he requested medical attention for one of his nosebleeds, he was told to use a tissue and "deal with it." Id. at 120. Using just a tissue, plaintiff was able to keep his nose clean and otherwise managed to address the nosebleed. Id. On two other occasions, plaintiff requested and received medical attention, including when he requested allergy and acid-reflux medication and was sick with food poisoning. Id. at 119-20. Indeed, plaintiff testified that a nurse at the prison walked around the SHU three times each day to provide inmates with medical care. Id. at 119.
Plaintiff's sentence in the SHU commenced on or about May 12, 2013. Dkt. No. 25-2 at 47. At that time, plaintiff was confined to his cell for twenty-three hours per day, allowed one hour of recreation per day, permitted to shower every-other-day, and received visitors once per week on a weekend day. Id. at 115. In approximately mid-June 2013, however, plaintiff was made a SHU porter. Id. at 116, 117. As a porter, he was tasked with sweeping, mopping, emptying the SHU garbage, taking care of the laundry, and handling inmates' property when necessary. Id. at 116. In exchange for his work as a porter, plaintiff received special privileges not otherwise available to inmates locked in the SHU, including access to a daily shower, extra recreation time, and extra food. Id. at 116-17. On two occasions during his SHU confinement, plaintiff's toilet became clogged but was fixed within two days of reporting the problem. Id. at 118.
Although defendant Wilkins sanctioned plaintiff to a total of 107 days of SHU confinement - consisting of seventeen days of pre-hearing confinement and ninety days post-hearing - he spent the last three weeks in keeplock confinement following his transfer to Comstock Correctional Facility ("Comstock"). Dkt. No. 25-2 at 47, 143. Plaintiff testified at his deposition in this matter that, while confined in keeplock at Comstock, he did not experience any nosebleeds or problems with the temperature, his toilets worked, and otherwise did not experience any unusual circumstances. Id. at 143-44.
In light of plaintiff's comparison of the conditions existing in general population and those experienced while confined in the SHU and in keeplock over the relevant 107-day period, no reasonable factfinder could conclude that plaintiff suffered an atypical or significant hardship by his disciplinary confinement. For much of his time confined in the SHU, plaintiff was afforded special privileges, including daily showers and additional recreation time, as a result of his job as a porter. For the entire period of SHU confinement, plaintiff received adequate medical attention when he requested it; his SHU cell had a window that opened and provided some air circulation; and, although the SHU cells are not air conditioned, neither are those in general population. According to plaintiff's own testimony, he did not experience any unusual circumstances during his keeplock confinement at Comstock. All of these conditions, as described by plaintiff, did not "present a dramatic departure from the basic conditions of [plaintiff's] . . . sentence." Sandin, 515 U.S. at 485.
Because atypicality is a matter of law for the court to decide when the facts are not in dispute, which is the case in this instance, Sealey, 197 F.3d at 585, I recommend that plaintiff's due process claim be dismissed on this ground. See, e.g., Husbands v. McClellan, 990 F. Supp. 214, 217-19 (W.D.N.Y. 1998) (granting summary judgment to the defendant where plaintiff had presented evidence that he was confined for 180 days in the SHU under several conditions that were more restrictive than those imposed in general population); see also Taylor, 238 F.3d at 194 (finding that a plaintiff's due process claims "cannot succeed . . . if he fails to establish a protected liberty interest").
IV. SUMMARY AND RECOMMENDATION
Based upon the record now before the court, I find as a matter of law that plaintiff was not deprived of a liberty interest when he served eighty-four days in SHU confinement and an additional twenty-three days of keeplock, during which times he was not made to suffer atypical or significant hardships as compared to those inmates in general population. Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 25) be GRANTED, and that plaintiff's complaint be DISMISSED in its entirety.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO O BJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
If you are proceeding pro se and are served with this report and recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the report and 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).
The clerk of the court is respectfully directed to serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: January 20, 2017
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge