Guarneri v. Schoharei County Dept of Socail Service

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

JOSEPH GUARNERI,

Plaintiff,

v. 1:21-CV-0991

(TJM/ML)

SCHOHARIE COUNTY DEPARTMENT

OF SOCIAL SERVICE; COMMISSIONER

DONNA BECKER; ACTING COMMISSIONER

JULLIE SAMMON; WORKER MELISSA

GOODEARU; WORKER KAYLTHIN RUSSEL;

OFFICE OF TEMPORARY AND DISABILITY

ASSISTANCE; CASE WORKER LEANN BRADT,

of Rehabilitation Support; and GOVERNOR CUOMO,

Defendants.

_____________________________________________

APPEARANCES: OF COUNSEL:

JOSEPH GUARNERI

Plaintiff, Pro Se

354 Edison Street

Schenectady, New York 12300

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

The Clerk has sent this pro se Complaint (Dkt. No. 1) together with an application to

proceed in forma pauperis (Dkt. No. 3) filed by Joseph Guarneri (“Plaintiff”) to the Court for

review. For the reasons discussed below, I grant Plaintiff’s in forma pauperis application (Dkt.

No. 3), and I recommend that Plaintiff’s Complaint (Dkt. No. 1) be dismissed in its entirety (1)

in part with leave to amend, and (2) in part without leave to amend.

I. BACKGROUND

Liberally construed,1 Plaintiff’s Complaint asserts that his civil rights were violated by

Defendants Schoharie County Department of Social Service, Commissioner Donna Becker,

Acting Commissioner Jullie Sammon, Worker Melissa Goodearu, Worker Kaylthin Russel,

Office of Temporary and Disability Assistance, Case Worker Leann Bradt of Rehabilitation

Support, and Governor Cuomo (collectively “Defendants”). (See generally Dkt. No. 1.)

Plaintiff alleges that at some point in time, he underwent a coronary angiograph and was

cared for by Bassett Healthcare in Cooperstown. (Id.) Plaintiff alleges that he was discharged

from Bassett Healthcare on April 29, 2019, with instructions that he take all medications with

foods. (Id.) Plaintiff alleges that on May 8, 2019, the medical instructions—that he take all

medications with food—was shown to Defendant Goodreau. (Id.) The Complaint alleges that at

some point in time, Defendant Goodreau threatened and coerced Plaintiff to prevent him from

taking life threatening medication with food. (Id.)

Plaintiff alleges that he is a diabetic and, as such, requires a diet that includes

carbohydrates and a snack at night. (Id.) Plaintiff alleges that on August 9, 2021, without any

advance notice, Defendants stopped his Supplemental Nutrition Assistance Program (“SNAP”)

benefits. (Id.) Plaintiff alleges that his SNAP benefits were reduced from $194.00 per month, to

$114.00 per month, to $189.00 per month. (Id.) Plaintiff alleges that his benefits were reduced

intentionally to kill him. (Id.) In addition, Plaintiff alleges that Defendants “use” a homeless

shelter that has been “called out by the state for poor” health and safety conditions. (Id.)

Plaintiff alleges that Defendants “sent” him to “Riverside Motel with no medication or food.”

(Id.)

Plaintiff alleges that—on an unspecified date—he agreed, in writing, to repay Defendants

$7,830.00—for an unspecified debt. (Id.) Plaintiff alleges that he paid Defendants $7,090.00,

which, according to Plaintiff, was an overpayment. (Id.) Plaintiff alleges that he and Social

Security were not informed by Defendants that Defendants “stole” the money and Plaintiff will

not recover the money that he overpaid. (Id.)

Plaintiff alleges that he filed an action in Schoharie County Supreme Court against

Defendant Sammon, which is still pending. (Id.)

Based upon the foregoing allegations, the Complaint appears to assert the following three

claims: (1) a claim that Defendants violated Plaintiff’s civil rights pursuant to 42 U.S.C. § 1983,

(2) a claim that Defendants violated Plaintiff’s rights under the Americans with Disabilities Act

(“ADA”), and (3) a claim pursuant to New York state law of negligence. (See generally Dkt.

No. 1.) Plaintiff requests a jury trial and seeks $500,000.00 in damages. (Id. at 4.)

Plaintiff also filed an application for leave to proceed in forma pauperis. (Dkt. No. 3.)

II. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS

When a civil action is commenced in a federal district court, the statutory filing fee,

currently set at $402, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized,

however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the

standard fee for commencing an action. 28 U.S.C. § 1915(a)(1).2 After reviewing Plaintiff’s in

1 The court must interpret pro se complaints to raise the strongest arguments they suggest.

Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790

(2d Cir. 1994)).

2 The language of that section is ambiguous because it suggests an intent to limit

availability of IFP status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the

commencement of an action without prepayment of fees “by a person who submits an affidavit

that includes a statement of all assets such prisoner possesses”). The courts have construed that

section, however, as making IFP status available to any litigant who can meet the governing

forma pauperis application (Dkt. No. 3), the Court finds that Plaintiff meets this standard.

Therefore, Plaintiff’s application to proceed in forma pauperis is granted.3

III. LEGAL STANDARD FOR INITIAL REVIEW OF COMPLAINT

“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the

court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks

monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).

In order to state a claim upon which relief can be granted, a complaint must contain, 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). The requirement that a plaintiff “show” that he or she is entitled to relief

means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis

added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a

complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial

experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to

infer more than the mere possibility of misconduct, the complaint has alleged–but it has not

shown–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and

punctuation omitted).

financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City

of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).

3 Plaintiff is reminded that, although his application to proceed in forma pauperis has been

granted, he will still be required to pay fees that he may incur in this action, including copying

and/or witness fees.

“In reviewing a complaint . . . 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) (citation omitted). However, “the tenet that a court

must accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d

66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)

(reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint

sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua

sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties .

. . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).

The Court, however, also has an overarching obligation to determine that a claim is not

legally frivolous before permitting a pro se plaintiff’s complaint to proceed. See, e.g., Fitzgerald

v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district

court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff

paid the statutory filing fee). “Legal frivolity . . . occurs where ‘the claim is based on an

indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law,

or a dispositive defense clearly exists on the face of the complaint.” Aguilar v. United States, 99-

MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston

v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams,

490 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal theory . . . or factual

contentions lack an arguable basis.”); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (“[T]he

decision that a complaint is based on an indisputably meritless legal theory for purposes of

dismissal under section 1915(d), may be based upon a defense that appears on the face of the

complaint.”).

IV. ANALYSIS

In addressing the sufficiency of a plaintiff’s complaint, the court must construe his

pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).

Having reviewed Plaintiff’s Complaint with this principle in mind, I recommend that all causes

of action be dismissed.

A. Claims Pursuant to 42 U.S.C. § 1983

“To state a valid claim under § 1983, the plaintiff must allege that the challenged conduct

(1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a

right, privilege, or immunity secured by the Constitution or laws of the United States.” Whalen

v. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865,

875-76 (2d Cir. 1994)). Thus, § 1983 does not create any independent substantive right, but

rather “provides a civil claim for damages” to “redress . . . the deprivation of [federal] rights

established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999).

The Complaint fails to allege a deprivation of federal rights established elsewhere. (See

generally Dkt. No. 1.) Instead, the Complaint states that it is brought pursuant to 42 U.S.C. §

1983 and that the Court has jurisdiction pursuant to 28 U.S.C. § 1331. (Dkt. No. 1 at 1.) The

only other federal statute mentioned is the ADA, which provides an independent cause of action

separate from § 1983.

In addition, and in the alternative, the Complaint is replete with allegations that shock but

fails to allege actions attributable to state actors. State action is an essential element of any

section 1983 claim. Gentile v. Republic Tobacco Co., 95-CV-1500, 1995 WL 743719, at *2

(N.D.N.Y. Dec. 6, 1995) (Pooler, J.) (citing Velaire v. City of Schenectady, 862 F. Supp. 774,

776 (N.D.N.Y. 1994) (McAvoy, J.)). To survive scrutiny under section 1915(e) where a plaintiff

has asserted a section 1983 claim, the complaint must allege facts that plausibly suggest state

action on the part of the named defendants. See DeMatteis v. Eastman Kodak Co., 511 F.2d 306,

311 (2d Cir. 1975), modified on other grounds by DeMatteis v. Eastman Kodak Co., 520 F.2d

409 (2d Cir. 1975), (“A private party violates [section] 1983 only to the extent its conduct

involves state action.”); see also Wilson v. King, No. 08-CV-0509, 2008 WL 2096593, at *1

(N.D.N.Y. May 16, 2008) (Sharpe, J.).

1. Claims Against Defendants Office of Temporary and Disability

Assistance and Governor Cuomo in his Official Capacity

The Eleventh Amendment provides that “[t]he Judicial power of the United States shall

not be construed to extend to any suit in law or equity, commenced or prosecuted against one of

the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

U.S. CONST. amend. XI. “The Eleventh Amendment bars federal courts from exercising

subject matter jurisdiction over claims against states absent their consent to such a suit or an

express statutory waiver of immunity.” Brokamp v. James, 21-CV-0389, 2021 WL 5444277, at

*6 (N.D.N.Y. Nov. 22, 2021) (Hurd, J.) (citing Brown v. New York, 975 F. Supp. 2d 209, 221

(N.D.N.Y. 2013) (D’Agostino, J.)).

“New York has not waived its sovereign immunity for 42 U.S.C. § 1983 claims.”

Brokamp, 2021 WL 5444277, at *6 (citing Jones v. N.Y. Div. of Military and Naval Affairs, 166

F.3d 45, 49 (2d Cir. 1999)). “Moreover, it is well-settled that states and their officials acting in

their official capacities are not ‘persons’ under § 1983 and, therefore, Eleventh Amendment

immunity is not abrogated by that statute.” Id. (citing Will v. Mich. Dep’t of State Police, 491

U.S. 58, 71 (1989)).

I recommend that, to the extent Plaintiff asserts a claim pursuant to 42 U.S.C. § 1983

against Defendant Office of Temporary and Disability Assistance, that claim be dismissed

because it seeks monetary relief against a defendant that is immune from such relief. 42 U.S.C.

§ 1915(e)(2)(B)(iii); see Clark v. United States, 16-CV-0740, 2016 WL 10570930, at *8

(N.D.N.Y. Aug. 29, 2016) (Hummel, M.J.) (recommending dismissal with prejudice, claims

under § 1983 against the defendant New York State Office of Temporary and Disability

Assistance pursuant to the Eleventh Amendment bar that extends to agencies), report and

recommendation adopted by 2016 WL 6610734 (N.D.N.Y. Nov. 9, 2016) (Sannes, J.));

Roosevelt Council v. New York, 08-CV-1158, 2008 WL 5243887, at *2 (N.D.N.Y. Dec. 15,

2008) (Kahn, J.) (“The law is well established that under the Eleventh Amendment to the United

States Constitution, both the State of New York and its subdivisions are immune from [§1983]

suits such as this.”).

In addition, damages against state officials in their official capacities are essentially

actions against the state and will be barred by the Eleventh Amendment unless (1) Congress has

abrogated immunity; (2) the state has consented to suit; or (3) the Ex parte Young doctrine

applies. Ex parte Young, 209 U.S. 123 (1908); Will, 491 U.S. at 71; In re Deposit Ins. Agency,

482 F.3d 612, 617 (2d Cir. 2007). The Eleventh Amendment bars actions against state officials

sued in their official capacities where, as here, the state is a real party in interest. See Edelman v.

Jordan, 415 U.S. 651, 663, 669 (1974) (holding that suits against state employees in their official

capacities are barred by the Eleventh Amendment); Ward v. Thomas, 207 F.3d 114, 119 (2d Cir.

2000) (rejecting federal suit against state officials under the Eleventh Amendment); Farid v.

Smith, 850 F.2d 917, 921 (2d Cir. 1988) (“The [E]leventh [A]mendment also bars suits against

state officials and state agencies if the state is the real party in interest”); Muhammad v.

Rabinowitz, 11-CV-2428, 2012 WL 1155098, at *6 (S.D.N.Y. Apr. 6, 2012) (dismissing claims

for damages against state employees in their official capacity as being barred by the Eleventh

Amendment); Crockett v. Pataki, 97-CV-3539, 1998 WL 614134, at *5 (S.D.N.Y. Sept. 14,

1998) (dismissing claims against governor and housing commissioner sued in their official

capacities); Sassower v. Mangano, 927 F. Supp. 113, 121 (S.D.N.Y. 1996) (dismissing claims for

damages against state officials sued in their official capacities).

Where claims are brought against an official in their official capacity, the state is

considered the real party in interest, and therefore the same sovereign immunity principles apply

as if the claim was brought directly against the state. Spiteri v. Russo, 12-CV-2780, 2013 WL

4806960, at *16 (E.D.N.Y. Sept. 7, 2013), aff'd sub nom. Spiteri v. Camacho, 622 F. App’x 9 (2d

Cir. 2015); see KM Enter., Inc. v. McDonald, 518 F. App’x 12, 13-14 (2d Cir. 2013) (finding that

a suit against a state agent in her official capacity effectively rendered the suit against the State

of New York and was thus covered under sovereign immunity); Gollomp v. Spitzer, 568 F.3d

355, 369 (2d Cir. 2009) (“Eleventh Amendment sovereign immunity ‘is not a mercurial area of

law, but has been definitively settled by the Supreme Court since 1890 with respect to actions

against the state itself, and 1945 with respect to actions against state agencies or state officials

named in their official capacity.’” (quotation marks omitted)); Huminski v. Corsones, 386 F.3d

116, 133 (2d Cir. 2004) (“[S]tate officials cannot be sued in their official capacities for

retrospective relief under [§] 1983.”); Anghel v. N.Y. Dep’t of Health, 12-CV-3484, 2013 WL

2338153, at *9 (E.D.N.Y. May 29, 2013) (quoting Ying Jing Gan v. City of New York, 996 F.2d

522, 529 (2d Cir. 1993)) (“A suit for damages against a state official in his or her official

capacity ‘is deemed to be a suit against the state, and the official is entitled to invoke the

Eleventh Amendment immunity belonging to the state.’”), aff'd, 589 F. App’x 28 (2d Cir. 2015);

Pietri v. New York Office Of Court Admin., 936 F. Supp. 2d 120, 128 (E.D.N.Y. 2013) (“The

Eleventh Amendment also bars suits against state officials in their official capacities for money

damages.”).

Here, Plaintiff seeks solely monetary damages against Defendants. (See generally Dkt.

No. 1.) As a result, I recommend that Plaintiff’s claim pursuant to 42 U.S.C. § 1983 against

Defendant Cuomo in his official capacity be dismissed as barred by the Eleventh Amendment.

2. Claims Against Defendant Goodearu

The only allegation in the Complaint that relates to Defendant Goodearu is that she

coerced and threatened Plaintiff, which resulted in him taking life threatening medication

without food and that this occurred in the presence of Schoharie County Sheriff Deputy Woods

and a person named Ashley. (Dkt. No. 1 at 2.) Although the Complaint alleges that all

Defendants are sued in their individual and official capacities, it is not clear what, if any, position

Defendant Goodearu holds. Further, to the extent that Defendant Goodearu is employed by a

state or municipal entity, the Complaint fails to allege facts plausibly suggesting that her actions

coercing and threatening Plaintiff, which resulted in him taking life threatening medication

without food, occurred in the context of her employment.4

4 The Court also notes that under the caption, the Complaint appears to include numbered

paragraphs listing Plaintiff and his current address and Defendants with their addresses. (Dkt.

No. 1 at 1-2.) In paragraph number 2, the Complaint names Defendant Becker but omits an

address for her. (Id. at 1.) The Complaint then appears to jump to paragraph number 4, where it

names Defendant Goodreau. (Id.) This apparent omission of paragraph number three and an

address for Defendant Becker further compounds the ambiguity surrounding what, if any,

position Defendant Goodreau holds and whether she was acting in her capacity as a state actor at

the time of her alleged improper conduct.

As a result, I recommend that Plaintiff’s claims against Defendant Goodearu pursuant to

42 U.S.C. § 1983, be dismissed for failure to state a claim.

3. Claims Against Defendants Becker, Sammon, Russel, Brandt, and

Cuomo in their Individual Capacities

To the extent that Plaintiff attempts to assert claims pursuant to 42 U.S.C. § 1983, the

factual allegations in the Complaint do not plausibly suggest that Defendants Becker, Sammon,

Russel, Bradt, and Cuomo were personally involved in Plaintiff’s alleged injuries.

The failure “to allege that a defendant was personally involved in, or responsible for, the

conduct complained of renders a complaint ‘fatally defective on its face.’” Linares v. Annuci,

19-CV-11120, 2021 WL 2689736, at *6 (S.D.N.Y. June 30, 2021) (quoting Alfaro Motors, Inc.

v. Ward, 814 F.2d 883, 886 (2d Cir. 1987)).

Plaintiff’s only allegation regarding Defendant Becker is that he mailed a letter addressed

to her on November 23, 2020, in which, Plaintiff told her to fix the issues he was having with his

monthly SNAP benefits. (Dkt. No. 1 at 3.) This conclusory and vague allegation fails to allege

facts plausibly suggesting Defendant Becker’s involvement with a violation of Plaintiff’s federal

rights.

In addition, aside from the caption and list of Defendants, the body of the Complaint does

not mention Defendants Sammon, Russel, Brandt, or Cuomo. See Crichlow v. Annucci, 18-CV-

3222, 2021 WL 5234522, at *2 (S.D.N.Y. Nov. 10, 2021) (dismissing for failure to state a claim

upon which relief may be granted those claims against defendants who were identified in the

caption of the third amended complaint but, “the Court [wa]s unable to find reference to them

anywhere else in the pleading.”); Joseph v. Annucci, 18-CV-7197, 2020 WL 409744, at *4

(S.D.N.Y. Jan. 23, 2020) (dismissing claims against defendants that were “named in the caption

only” where “[t]he body of the Complaint does not contain any factual allegations naming them,

or indicating that they violated the law or injured Plaintiff in some manner.”); Manley v. Ramos,

13-CV-2662, 2014 WL 1496094, at *2 (S.D.N.Y. Apr. 16, 2014) (dismissing claims where the

plaintiff “name[d police officers] as defendants in the caption, but . . . never mention[ed] them

again in the body of the complaint.”); Ortiz v. Bloomberg, 10-CV-9434, 2011 WL 4822829, at

*3 (S.D.N.Y. Oct. 7, 2011) (dismissing claims where “the only named reference to [certain

correctional officers was] in the caption of the Complaint, and the only additional references to

these defendants [were] merely conclusory statements about their personal involvement and

liability.”); Purdie v. Mahoney, 05-CV-0705, 2005 WL 3050969, at *1 (N.D.N.Y. Nov. 14,

2005) (Mordue, J.) (“Plaintiff is obligated to set forth allegations of personal involvement by

each named defendant in his complaint, and may not meet this obligation with conclusory

allegations. Thus, plaintiff is advised that if he seeks to sue individuals who allegedly violated

his rights, he must name them in the caption of his complaint and set forth specific allegations of

wrongdoing as to each individual in the body of his complaint.”)

As a result, I recommend that Plaintiff’s claims pursuant to 42 U.S.C. § 1983 against

Defendants Becker, Sammon, Russel, Brandt, and Cuomo in their individual capacities be

dismissed for failure to state a claim.

4. Claims Against Defendant Schoharie County Department of Social

Services and Defendants Becker, Sammon, Russel, and Brandt in

Their Official Capacities

A municipality may only be named as a defendant in certain circumstances. In Monell v.

Dep't of Soc. Servs., 436 U.S. 658 (1978), the Supreme Court outlined the limited circumstances

under which a municipality may be liable under Section 1983. A municipality may not be held

liable solely because it employs a tortfeasor. Los Angeles Cnty., Cal. v. Humphries, 562 U.S. 29,

36 (2010). Only when the municipality, through the execution of its policies, actually deprives

an individual of his constitutional rights, is it liable for the injury. Monell, 436 U.S. at 694.

To establish municipal liability, the policy must actually cause the violation of

constitutional rights; it must be the moving force behind the violation. Id.; Dominguez v. Beame,

603 F.2d 337, 341 (2d Cir. 1979). Official policy includes the decisions of a government’s

lawmakers, the acts of policymaking officials, and practices that are so widespread as to

“practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). Municipal

liability may also be shown by establishing that a policymaking official ordered or ratified the

employees’ actions either expressly or tacitly.

Finally, municipal liability can, under limited circumstances, be based upon a failure to

properly train the municipality’s employees. Connick, 563 U.S. at 51. However, municipal

liability is most tenuous when a claim turns on the failure to train. Id. (citing Oklahoma City v.

Tuttle, 471 U.S. 808, 822-23 (1985) (plurality opinion) (“[A] ‘policy’ of ‘inadequate training’” is

“far more nebulous, and a good deal further removed from the constitutional violation, than was

the policy in Monell”)). To satisfy the statute, a municipality’s failure to train its employees

must amount to “‘deliberate indifference to the rights of persons with whom the [untrained

employees] come into contact.’” Id. (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 388

(1989)).

There is no basis for municipal liability alleged in the Complaint. Plaintiff essentially

that Defendants (1) use a homeless shelter that has poor health and safety conditions, (2)

disbursed his SNAP benefits in incorrect amounts, and (3) over payment5 of a debt that Plaintiff

agreed to. (See generally Dkt. No. 1.) Plaintiff does not allege that he has been required to use

5 The Complaint alleges that on October 13, 2020, Defendants were re-paid $7,830.00,

which Plaintiff agreed to. (Dkt. No. 1 at 3.) The Complaint further alleges that Defendants were

paid $7,090.00, which was an “overpayment.” (Id.) These allegations are far from clear and the

Court takes judicial notice of the fact that $7,090.00 is, in fact, less than $7,830.00, which

Plaintiff acknowledges that he agreed—in writing—to paying.

the homeless shelter and instead alleges that he has been “sent” to Riverside Motel. (Dkt. No. 1

at 3.) In New York State, the Office of Temporary and Disability Assistance oversees the local

administration of the SNAP program; as set forth above in Part IV.A.1. of this Order and Report-

Recommendation, that agency is an arm of the state and thus, entitled to immunity pursuant to

the Eleventh Amendment. Further, Plaintiff fails to allege which, of any, of Defendants were

involved in the alleged overpayment of his debt. (See generally Dkt. No. 1.)

There is no indication that Plaintiff can assert a policy or custom which would support

municipal liability based on these facts. In addition, none of Plaintiff's allegations reflect a

failure to train or “deliberate indifference” to the rights of persons who would come into contact

with Defendants.

As a result, I recommend that Plaintiff’s claims against Defendant Schoharie County be

dismissed at this time. See Flagg v. NYS Division of Parole, 19-CV-0886, 2019 WL 5002215, at

*5 (N.D.N.Y. Aug. 15, 2019) (Baxter, M.J.) (citing DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir.

1998)) (“A single incident, particularly if it involved individuals below the policy-making level

is insufficient to state a Monell claim.”), report and recommendation adopted by, 2019 WL

4963112 (N.D.N.Y. Oct. 8, 2019) (McAvoy, J.).

Further, to the extent that Plaintiff asserts claims against Defendants Becker, Sammon,

Russel, and Brandt in their official capacities pursuant to 42 U.S.C. § 1983, as employees of

Schoharie County Department of Social Services—or some other municipal entity—I

recommend that those claims be dismissed. “Claims against a government employee in his

official capacity [is] treated as a claim against the municipality.” Malay v. City of Syracuse, 638

F. Supp. 2d 203, 311 (N.D.N.Y. 2009) (McCurn, J.). For the reasons stated above, Plaintiff has

failed to allege facts plausibly suggest a cause of action against Defendant Schoharie County (or

any other municipal entity). As a result, the claims against Defendants Becker, Sammon, Russel,

and Brandt in their official capacities pursuant to 42 U.S.C. § 1983, should be dismissed for

failure to state a claim upon which relief may be granted.

B. Claims Pursuant to the ADA

Plaintiff refers to the ADA as a basis for recovery. (Dkt. No. 1.) To the extent that

Plaintiff intended to assert claims pursuant to the ADA, I recommend that those claims be

dismissed for failure to state a claim upon which relief may be granted.

Although the Complaint is sparse and largely incomprehensible, it states that Plaintiff has

diabetes and undergone a “coronary angiograph” which left him with four stents. (Id. at 3.) The

Complaint provides no allegations of discrimination based on his disability. (See generally Dkt.

1.) However, construing the Complaint liberally, as the Court must, Plaintiff failed to allege

facts plausibly suggesting claims pursuant to Title II or Title III of the ADA.6

6 Based on the facts alleged, Plaintiff could not proceed with a claim under Title I of the

ADA, which addresses employment discrimination, because he has neither alleged that he was

employed by Defendants, nor alleged that he 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) (quoting Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S.

356, 360, n.1 (2001)) (“‘Title I of the ADA expressly deals with th[e] subject’ of employment

discrimination.”). Moreover, 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, 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 he engaged in activity protected by the

ADA, that Defendants were aware of that activity, or any causal connection between the

allegedly adverse actions that Defendant took against him and the protected activity. Chiesa v.

New York State Dep’t of Labor, 638 F. Supp. 2d 316, 323 (N.D.N.Y. 2009) (Hurd, J.); see also

Constantine v. Merola, 2020 WL 8450544, at *5 (N.D.N.Y. Nov. 6, 2020) (Lovric, M.J.)

(recommending dismissal of the plaintiff’s ADA Title V 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 and

recommendation adopted by 2021 WL 392487 (N.D.N.Y. Feb. 4, 2021) (Hurd, J.).

1. Title II of the ADA

Title II of the ADA “proscribes discrimination against the disabled in access to public

services.” Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009) (citing Powell v. Nat'l Bd. of Med.

Exam'rs, 364 F.3d 79, 84-85 (2d Cir. 2004), corrected, 511 F.3d 238 (2d Cir. 2004)). The ADA

provides that “no qualified individual with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the services, programs, or activities of

a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. To

plead a violation of Title II of the ADA, a plaintiff must allege “(1) that [he] is a qualified

individual with a disability; (2) that [he] 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 [his] disability.” Fulton v. Goord, 591 F.3d

37, 43 (2d Cir. 2009) (quoting Hargrave v. Vermont, 340 F.3d 27, 34-35 (2d Cir. 2003)) (internal

quotation marks omitted). A “qualified individual” is

an individual with a disability who, with or without reasonable

modifications to rules, policies, or practices, the removal of architectural,

communication, or transportation barriers, or the provision of auxiliary

aids and services, meets the essential eligibility requirements for the

The Court also notes that, “[i]t is firmly established that Titles I and V of the ADA do not

abrogate states’ sovereign immunity.” Penird v. Better, 19-CV-1146, 2021 WL 3077853, at *4

(N.D.N.Y. July 21, 2021) (D’Agostino, J.) (citing Rosenfield v. New York State Div. of Veterans’

Affairs, 18-CV-1299, 2019 WL 4621962, at *8 (N.D.N.Y. Sept. 24, 2019) (Suddaby, C.J.);

Quadir v. New York State Dep’t of Labor, 39 F. Supp. 3d 528, 536 (S.D.N.Y. 2014)). “Further,

New York State has not waived its sovereign immunity under Titles I or V of the ADA.” Penird,

2021 WL 3077853, at *4 (citing Quadir, 39 F. Supp. 3d at 537). As a result, in the alternative, I

recommend that, to the extent Plaintiff asserted claims pursuant to Title I or V of the ADA

against Defendant Office of Temporary and Disability Assistance and Cuomo in his official

capacity, those claims be dismissed because those Defendants are immune from suit pursuant to

the Eleventh Amendment.

receipt of services or the participation in programs or activities provided

by a public entity.

42 U.S.C. § 12131(2). A qualified individual can base a discrimination claim on any of “three

available theories: (1) intentional discrimination (disparate treatment); (2) disparate impact; and

(3) failure to make a reasonable accommodation.” Tsombanidis v. West Haven Fire Dep’t, 352

F.3d 565, 573 (2d Cir. 2003).

Here, the Compliant is devoid of factual allegations plausibly suggesting that Plaintiff

was unable to access programs due to his disability, how his disability prevented him from

accessing those programs, or what accommodations he sought and was denied by Defendants.

(See generally Dkt. 1.)

Moreover, “[w]hen a private individual seeks damages under Title II of the ADA, the

Second Circuit requires the plaintiff to ‘establish that the Title II violation was motivated by

either discriminatory animus or ill will due to disability.’” Day v. Warren, 06-CV-0155, 2008

WL 474261, at *4 (D. Conn. Feb. 7, 2008) (quoting Garcia v. S.U.N.Y. Health Scis. Ctr. of

Brooklyn, 280 F.3d 98, 111 (2d Cir. 2001)). The Complaint fails to allege facts plausibly

suggesting discriminatory animus or ill will towards Plaintiff’s alleged disability or disabilities.

(See generally Dkt. No. 1.)

As a result, I recommend that Plaintiff’s ADA claims under Title II be dismissed

pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief may be

granted. See Hill v. LaClair, 20-CV-0441, 2020 WL 2404771, at *8 (N.D.N.Y. May 11, 2020)

(Hurd, J.) (dismissing ADA Title II claims “pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C.

§ 1915A(b) for failure to state a claim upon which relief may be granted.”).7

7 In the alternative, to the extent that Plaintiff attempts to assert ADA Title II claims

against Defendants Becker, Sammon, Goodearu, Russel, Bradt, and Cuomo in their individual

2. Title III of the ADA

Title III of the ADA prevents discrimination based on a disability in places of public

accommodation. 42 U.S.C. § 12182. However, Title III “expressly does not apply to public

entities, including local governments.” Bloom v. Bexar Cnty., 130 F.3d 722, 726 (5th Cir. 1997);

see Morales v. New York, 22 F. Supp. 3d 256, 266-67 (S.D.N.Y. 2014) (“Title III is not

applicable to public entities.”). Instead, “[a] claim under Title III of the [ADA] can only be

asserted against a private entity engaged in the provision of public accommodations, such as an

inn, hotel or private school.” Morales, 22 F. Supp. 3d at 266 (citing 42 U.S.C. §§ 12181(7);

12182); see also Booker v. City of New York, 17-CV-7035, 2018 WL 4616048, at *5, n.3

(S.D.N.Y. Sept. 26, 2018) (holding that a claim pursuant to Title III of the ADA cannot be

asserted against the City of New York or its employees in their official capacities because they

are not private entities engaged in the provision of public accommodations).

Here, Defendants Schoharie County Department of Social Service and Office of

Temporary and Disability Assistance are public entities, which are thus, not amenable to a Title

III ADA claim. See Maioriello v. New York State Office for People with Dev. Disabilities, 14-

CV-0214, 2015 WL 5749879, at *16 (N.D.N.Y. Sept. 30, 2015) (Suddaby, C.J.) (dismissing the

capacities, I recommend that those claims be dismissed because “individuals cannot be held

liable under the ADA.” Netti v. Ayers, 17-CV-0976, 2017 WL 7542494, at *18 (N.D.N.Y. Oct.

5, 2017) (Baxter, M.J.) (citing Baross v. Greenlawn, 16-CV-4805, 2017 WL 2124424, at *4

(E.D.N.Y. May 15, 2017)), report and recommendation adopted by 2018 WL 813509 (N.D.N.Y.

Feb. 9, 2018) (Suddaby, C.J.); accord Rosenfield v. New York State Div. of Veterans’ Affairs, 18-

CV-1299, 2019 WL 4621962, at *10 (N.D.N.Y. Sept. 24, 2019) (Suddaby, C.J.); see Garcia v.

S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (holding that Title II of

the ADA does not provide for suits against individuals); Fox v. State Univ. of N.Y., 497 F. Supp.

2d 446, 449 (E.D.N.Y. 2007) (“[T]here is no individual liability under Title I or Title II of the

ADA, or the ADEA.”); Sutherland v. New York State Dep't of Law, 96-CV-6935, 1999 WL

314186, at *7 (S.D.N.Y. May 19, 1999) (“Individual defendants may not be held personally

liable for alleged violations of the ADA.”).

plaintiff’s claims to the extent that they were based on a violation of Title III because the New

York State Office for People with Developmental Disabilities is a public entity).8

Further, to the extent that Plaintiff intended to assert a Title III claim against Defendants

Becker, Sammon, Goodearu, Russel, Bradt, and Cuomo in their individual capacities, Title III

provides a private right of action for injunctive relief but no right of action for monetary relief.

42 U.S.C. § 12188; see Krist v. Kolombos Rest. Inc., 688 F.3d 89, 94 (2d Cir. 2012) (holding that

Title III of the ADA “authorizes private actions only for injunctive relief, not monetary

damages.”); Powell, 364 F.3d at 86 (“Monetary relief . . . is not available to private individuals

under Title III of the ADA.”); see also Ervine v. Deser View Reg’l Med. Ctr. Holdings, LLC, 753

F.3d 862, 867 (9th Cir. 2014) (“Damages are not an available remedy to individuals under Title

III of the ADA; individuals may receive only injunctive relief.”). As a result, those claims

should also be dismissed because Plaintiff seeks solely monetary damages.

In addition, “Title[ ] . . . III of the ADA prohibit[s] discrimination against qualified

disabled individuals by requiring that they receive ‘reasonable accommodations’ that permit

them to have access to and take a meaningful part in public services and public

8 To the extent that Plaintiff intended to assert Title III claims against Defendants Becker,

Sammon, Goodearu, Russel, Bradt, and Cuomo in their official capacities as government

employees, I recommend that those claims be dismissed. As an initial matter, as set forth above

in Part IV.A.2. of this Order and Report-Recommendation, the Complaint fails to allege facts

plausibly suggesting the position, if any, that Defendant Goodearu holds. To the extent that

Defendant Goodearu holds a position with a private entity, the Complaint fails to allege facts

plausibly suggesting that the private entity is engaged in the provision of public

accommodations. (See generally Dkt. No. 1.) Moreover, to the extent that Defendants Becker,

Sammon, Goodearu, Russel, Bradt, and Cuomo are government employees, a claim against them

in their official capacities pursuant to Title III of the ADA would be treated as a claim against the

municipality or government agency, which cannot be sustained. See Malay v. City of Syracuse,

638 F. Supp. 2d 203, 311 (N.D.N.Y. 2009) (McCurn, J.) (dismissing as duplicative claims

against defendants in their “official capacity” because “claims against a government employee in

his official capacity are treated as a claim against the municipality.”)

accommodations.” Powell, 364 F.3d at 85, opinion corrected, 511 F.3d 238 (2d Cir. 2004)

(citations omitted). To adequately plead a claim pursuant to Title III of the ADA for failure to

provide reasonable accommodations, a plaintiff must allege facts establishing that the

defendant’s “failure to make ‘reasonable modifications’ to their policies, practices, and

procedures deprived plaintiff of the ability to access the ‘goods, services, facilities, privileges,

advantages, or accommodations’ available to those lacking [the] plaintiff's disabilities.”

Andersen v. N. Shore Long Island Jewish Healthcare Sys. Zucker Hillside Hosp., 12-CV-1049,

2013 WL 784391, at *9 (E.D.N.Y. Jan. 23, 2013) (quoting 42 U.S.C. 12182(b)(2)(A)(i)-(ii)

(additional citation omitted)), report and recommendation adopted as modified, 2013 WL

784344 (E.D.N.Y. Mar. 1, 2013).

Here, the Complaint is devoid of factual allegations concerning “policies, practices, [or]

procedures” by Defendants that deprived Plaintiff of ability to access goods, services, or

privileges available to those without Plaintiff’s disabilities. Doe v. NYSARC Tr. Serv., Inc., 20-

CV-0801, 2020 WL 5757478, at *8 (N.D.N.Y. Sept. 28, 2020) (Hummel, M.J.), report and

recommendation adopted by, 2020 WL 7040982 (N.D.N.Y. Dec. 1, 2020) (Sannes, J.).

As a result, I recommend that, to the extent that Plaintiff intended to assert claims

pursuant to Title III of the ADA, those claims be dismissed for failure to state a claim upon

which relief may be granted.

C. New York State Common Law Negligence Claim

In the event that Plaintiff’s federal claims—to the extent that he alleged any—are

dismissed, I recommend that the Court decline to exercise supplemental jurisdiction over any

state law claims. Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)

(“[A] district court may decline to exercise supplemental jurisdiction if it has dismissed all

claims over which it has original jurisdiction.”).

In the alternative, I recommend that Plaintiff’s negligence claim be dismissed for failure

to state a claim. “In order to prevail on a negligence claim, ‘a plaintiff must demonstrate (1) a

duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately

resulting therefrom.’” Pasternack v. Lab. Corp. of Am. Holdings, 27 N.Y.3d 817, 825 (N.Y.

2016) (quoting Soloman v. City of New York, 66 N.Y.2d 1026, 1027 (N.Y. 1985)).

The Complaint fails to allege facts plausibly suggesting that Defendants owed a duty to

Plaintiff, a breach of that duty, or an injury resulting from that breach. (See generally Dkt. No.

1.) As a result, in the alternative, I recommend that Plaintiff’s negligence claim be dismissed for

failure to state a claim upon which relief may be granted.

V. OPPORTUNITY TO AMEND

Generally, a court should not dismiss claims contained in a complaint filed by a pro se

litigant without granting leave to amend at least once “when a liberal reading of the complaint

gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05

(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when

justice so requires.”). 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 v. Oppenheimer & Co., 987 F.2d

129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1

(N.D.N.Y. Sept. 22, 1997) (Pooler, J.).9

With respect to Plaintiff’s claims pursuant to 42 U.S.C. § 1983, I recommend that the

claims against Defendants Office of Temporary and Disability Assistance and Cuomo in his

official capacity, be dismissed with prejudice and without leave to amend because they are

immune from suit. See Forjone, 414 F. Supp. 3d at 303-04 (dismissing with prejudice the

plaintiff’s claims against the state and federal defendants based on the doctrine of sovereign

immunity because “[p]ermitting amendment would be unproductive in this instance.”).

However, I am unable to conclude with complete certainty that if permitted leave to

amend his Complaint, Plaintiff could not assert a plausible claims pursuant (1) 42 U.S.C. § 1983

against Defendants Schoharie County, Becker, Sammon, Goodearu, Russel, and Brandt, (2) 42

U.S.C. § 1983 against Defendant Cuomo in his individual capacity, (3) the ADA, and (4) New

York state common law negligence. Accordingly, I recommend that leave to amend be granted

with respect to those claims.

If Plaintiff chooses to file an amended complaint, he 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.

9 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015)

(Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171

F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can

rule out any possibility, however unlikely it might be, that an amended complaint would be

successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30.

1987)); accord Pourzancvakil v. Humphry, 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y.

May 22, 1995) (Pooler, J.). Therefore, in any amended complaint, Plaintiff must clearly set forth

facts that give rise to the claims, including the dates, times, and places of the alleged underlying

acts, and each individual who committed each alleged wrongful act. In addition, the revised

pleading should allege facts demonstrating the specific involvement of any named Defendant in

the constitutional deprivations alleged in sufficient detail to establish that it was tangibly

connected to those deprivations. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). 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.”).

ACCORDINGLY, it is

ORDERED that Plaintiff’s application to proceed in forma pauperis (Dkt. No. 3) is

GRANTED; and it is further respectfully

RECOMMENDED that the Court DISMISS WITH LEAVE TO REPLEAD

Plaintiff’s claims pursuant to (1) 42 U.S.C. § 1983 against Defendants Schoharie County,

Becker, Sammon, Goodearu, Russel, and Brandt, (2) 42 U.S.C. § 1983 against Defendant Cuomo

in his individual capacity, (3) the ADA, and (4) New York state common law negligence, for

failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B);

and it is further respectfully

RECOMMENDED that the Court DISMISS WITHOUT LEAVE TO REPLEAD

Plaintiff’s claims pursuant to 42 U.S.C. § 1983 against Defendants Office of Temporary and

Disability Assistance and Cuomo in his official capacity, because those claims seek monetary

relief against Defendants who are immune from such relief pursuant to 28 U.S.C. §

1915(e)(2)(B); and it is further respectfully

ORDERED that the Clerk of the Court shall file a copy of this Order and Report-

Recommendation on Plaintiff, along with copies of the unpublished decisions cited herein in

accordance with the Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009)

(per curiam).

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have 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 PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);

Fed. R. Civ. P. 6(a), 6(d), 72; 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)).

Dated: December 21 , 2021

Binghamton, New York }

Miroslav Lovric

U.S. Magistrate Judge

10 If you are proceeding pro se and 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 that the report, recommendation, and order was mailed to you to

serve and file objections. Fed. R. Civ. P. 6(d). Ifthe 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).

24