Copes v. State University of New York

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

KEITH COPES,

Plaintiff,

5:22-CV-0291

v. (MAD/ML)

STATE UNIVERSITY OF NEW YORK;

and FINGERLAKES COMMUNITY

COLLEGE,

Defendants.

_____________________________________________

APPEARANCES: OF COUNSEL:

KEITH COPES

Plaintiff, Pro Se

1700 West Onondaga Street, Apartment 410

Syracuse, New York 13204

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

Presently before the Court is a Complaint filed by pro se plaintiff Keith Copes

(“Plaintiff”) together with an application to proceed in forma pauperis. (Dkt. Nos. 1, 2.) For the

reasons set forth below, Plaintiff’s IFP application is granted and I recommend that Plaintiff’s

Complaint be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

I. BACKGROUND

On March 28, 2022, Plaintiff commenced this action by filing a form complaint for civil

rights violations pursuant to 42 U.S.C. § 1983, against Defendants State University of New York

(“SUNY”) and Fingerlakes Community College (“FLCC”) (collectively “Defendants”). (Dkt.

No. 1.)

The Complaint alleges that Plaintiff was registered to become an online student at

Defendant FLCC through a partnership with Defendant SUNY for the fall semester of 2021.

(Id.) Plaintiff alleges that he and Defendants entered a binding contract pursuant to which,

Defendants would provide Plaintiff with books and a Dell Inspiron IS 3000 laptop computer.

(Id.) Plaintiff alleges that he began his courses as set forth in the contract. (Id.) Plaintiff alleges

that Defendants “advertised to the public” that they would provide an unspecified “kind of

Education and Instruction” but “refused to offer such an education to” Plaintiff and “conspired to

keep that fact from him.” (Id. at 3.)

Based on these factual allegations, the Complaint appears to assert the following three

causes of action: (1) a breach of contract claim against Defendants; (2) a claim of fraud against

Defendants; and (3) a claim that Defendants conspired in violation of the Racketeer Influenced

and Corrupt Organizations Act. (Id. at 6.)

As relief, Plaintiff seeks $3,000,000,000.00 in compensatory damages, $150,000.00 in

punitive damages, and any other relief that is deemed just and proper. (Id. at 11.)

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).1 After reviewing Plaintiff’s in

forma pauperis application (Dkt. No. 2), the Court finds that Plaintiff meets this standard.

Therefore, Plaintiff’s application to proceed in forma pauperis is granted.2

III. LEGAL STANDARD FOR REVIEW OF THE COMPLAINT

Although the court has a duty to show liberality toward pro se litigants, and must use

extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party

or parties have been served and have had an opportunity to respond, the court still has a

responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed.

28 U.S.C. § 1915(e); Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam); Anderson v.

Coughlin, 700 F.2d 37, 41 (2d Cir. 1983); 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.,

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

availability of in forma pauperis 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 in forma pauperis status available to any litigant

who can meet the governing 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).

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

granted, he is still required to pay fees that he may incur in this action, including copying and/or

witness fees.

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.”).

When reviewing a complaint under section 1915(e), the court is guided by applicable

requirements of the Federal Rules of Civil Procedure. More specifically, Rule 8 of the Federal

Rules of Civil Procedure provides that a pleading 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).

“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.

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. RICO Conspiracy

Plaintiff attempts to assert claims under the civil provision of RICO, which “creates a

private right of action for individuals to enforce the RICO statute.” Mathon v. Feldstein, 303 F.

Supp. 2d 317, 322 (E.D.N.Y. 2004). The civil RICO enforcement provision states that “[a]ny

person injured in his business or property by reason of a violation of [18 U.S.C. § 1962] . . . may

sue . . . in any appropriate United States district court and shall recover threefold the damages[.]”

18 U.S.C. § 1964(c). In order to state a violation of Section 1962, and thus, a claim under the

civil RICO enforcement provision, a plaintiff must allege facts showing: “(1) that the defendant

(2) through the commission of two or more acts (3) constituting a ‘pattern’ (4) of ‘racketeering

activity’ (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an

‘enterprise’ (7) the activities of which affect interstate or foreign commerce.” Moss v. Morgan

Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983) (quoting § 1962(a)-(c)). Such a person must also

“allege that he was ‘injured in his business or property by reason of a violation of section 1962.’”

Moss, 719 F.2d at 17 (quoting § 1964(c)) (italics in original).

To allege a RICO conspiracy under 18 U.S.C. § 1962(d), a plaintiff must allege “a

conspiracy to commit a substantive RICO violation.” Spool v. World Child Int’l Adoption

Agency, 520 F.3d 178, 183 (2d Cir. 2008). In particular, “[b]ecause the core of a RICO civil

conspiracy is an agreement to commit predicate acts, a RICO civil conspiracy complaint, at the

very least, must allege specifically such an agreement.” Hecht v. Commerce Clearing House,

Inc., 897 F.2d 21, 25 (2d Cir. 1990). As a result, to properly allege a civil RICO conspiracy

under Section 1962(d), a plaintiff must allege that the defendant “knew about and agreed to

facilitate the [RICO] scheme.” Salinas v. United States, 522 U.S. 52, 66 (1997). Regarding the

facilitation requirement, “a plaintiff must allege that the conspirator intended to further an

endeavor that, if completed, would satisfy all of the elements of a substantive” criminal offense;

however, it is sufficient for a plaintiff to allege that the “conspirator adopted the goal of

furthering or facilitating the criminal endeavor.” Malvar Egerique v. Chowaiki, 19-CV-3110,

2020 WL 1974228, at *8 (S.D.N.Y. Apr. 24, 2020).

“Local Rule 9.2 requires a party asserting a claim under RICO to ‘file a RICO statement

within thirty (30) days of the filing of the pleading containing such claim.’” Poole v. Bendixen,

20-CV-0697, 2021 WL 3737780, at *11 (N.D.N.Y. Aug. 24, 2021) (Suddaby, C.J.). Failure to

timely file a RICO statement pursuant to this rule is grounds for dismissal of the RICO claims.

See Pierce v. Homecomings Fin. LLC, 17-CV-0882, 2017 WL 5991750, at *2 n.2 (N.D.N.Y.

Dec. 4, 2017) (Sannes, J.) (noting that, where a plaintiff failed to file a RICO statement pursuant

to Local Rule 9.2, “[p]laintiff's RICO claim may be dismissed for this reason alone”); see also

Amaker v. Kelley, 01-CV-0877, 2009 WL 385413, at *11 (N.D.N.Y. Feb. 9, 2009) (Peebles,

M.J.) (holding that failure to file a RICO statement “provid[es] a threshold for dismissal of [a]

plaintiff's RICO claim”); Spoto v. Herkimer Cnty. Trust, 99-CV-1476, 2000 WL 533293, at *3

n.2 (N.D.N.Y. Apr. 27, 2000) (Munson, J.) (“[T]he [c]ourt would be justified to dismiss [the]

complaint based upon the[ ] very untimely filing of the[ ] Local Rule 9.2 RICO Statement.”).

Plaintiff filed his complaint on March 28, 2022. (Dkt. No. 1.) To date, Plaintiff has not

filed a RICO statement (see generally docket sheet) and the time to do so pursuant to Local Rule

9.2 expired on April 27, 2022. Based on Plaintiff’s violation of Local Rule 9.2, I recommend

that Plaintiff’s RICO claim against Defendants be dismissed. See Murphy v. Onondaga Cnty.,

18-CV-1218, 2022 WL 819281, at *7 (N.D.N.Y. Mar. 18, 2022) (Sharpe, J.) (dismissing the

plaintiff’s RICO conspiracy claims where the plaintiff filed a late RICO statement); Poole, 2021

WL 3737780, at *11 (dismissing RICO claims where the plaintiffs failed to timely file a RICO

statement under Local Rule 9.2, “regardless of Plaintiffs’ good-faith work on other aspects of

th[e] case.”).

In the alternative, I recommend that Plaintiff’s RICO conspiracy claim be dismissed for

failure to state a claim upon which relief may be granted. Plaintiff alleges no facts plausibly

suggesting “how the government [actors] joined the criminal enterprises; when the conspiracies

began; what roles each of the alleged co-conspirators played; how precisely the conspiracies

operated; or how he was negatively impacted by these activities.” Gibbs v. Bank of Am., N.A.,

22-CV-0011, 2022 WL 1469402, at *5 (E.D.N.Y. May 10, 2022). Plaintiff’s bare assertion that

Defendants committed “fraud, fraud in the inducement[,] and conspiracy in violation of” RICO,

does not plausibly suggest a violation of the RICO statute.

As a result, I recommend that Plaintiff’s RICO conspiracy claim be dismissed.3

3 Although Plaintiff does not appear to allege any claims pursuant to 42 U.S.C. § 1983, he

used the Court’s form complaint for claims pursuant to 42 U.S.C. § 1983. To the extent that any

of Plaintiff’s claims are construed pursuant to 42 U.S.C. § 1983, I recommend that those claims

against Defendant SUNY be dismissed based on the doctrine of absolute immunity pursuant to

the Eleventh Amendment. Leitner v. Westchester Cmty. Coll., 779 F.3d 130, 136 (2d Cir. 2015)

(quoting Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990)) (“SUNY itself is entitled

to sovereign immunity because it is ‘an integral part of the government of the State.’”); see

Gasparik v. Stony Brook University, 296 F. App’x 151, 152 (2d Cir. 2008) (holding that as an

agency or arm of the State of New York, “SUNY has not consented to be sued in a federal forum

and so is immune from suit pursuant to the Eleventh Amendment.”). However, the doctrine of

sovereign immunity pursuant to the Eleventh Amendment does not apply to Defendant FLCC.

Leitner v. Westchester Cmty. Coll., 779 F.3d 130, 139-40 (2d Cir. 2015) (finding that the

defendant Westchester Community College—as a SUNY community college—was not a state

B. State Claims

Having found that all of Plaintiff’s federal claims are subject to dismissal, I recommend

that, to the extent that Plaintiff has asserted any state law claims, the Court decline to exercise

jurisdiction over those claims.4 See 28 U.S.C. § 1367(c)(3) (providing that a district court “may

decline to exercise supplemental jurisdiction over [pendent state law claims] if . . . the district

court has dismissed all claims over which it has original jurisdiction”); Carnegie-Mellon Univ. v.

Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are

eliminated before trial, the balance of factors to be considered under the pendent jurisdiction

doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to

exercise jurisdiction over the remaining state-law claims.”); Walker v. Time Life Films, Inc., 784

F.2d 44, 53 (2d Cir. 1986) (citing Kavit v. A.L. Stamm & Co., 491 F.2d 1176, 1180 (1974))

(holding that “federal courts, absent exceptional circumstances, should abstain from exercising

pendent jurisdiction when federal claims in a case can be disposed of by summary judgment”).

In the alternative, I recommend that Plaintiff’s state law claims be dismissed for failure to

state a claim upon which relief may be granted.

entity for purposes of sovereign immunity); see Drehmer v. New York State, 20-CV-6143, 2020

WL 6205690, at *4 (W.D.N.Y. Oct. 22, 2020) (adopting the “Second Circuit’s reasoning in

Leitner” finding that Corning Community College “is not an arm of the state entitled to

sovereign immunity under the Eleventh Amendment.”).

4 Breach of contract and fraud are state law claims. See Wilson v. Neighborhood Restore

Dev., 18-CV-1172, 2018 WL 2390143, at *3 (E.D.N.Y. May 18, 2018) (citing Loreley Fin.

(Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 182 (2d Cir. 2015)) (holding that

“breach of contract, breach of the warranty of habitability, negligence, personal injury and fraud .

. . are state law claims.”).

1. Breach of Contract

“[I]n order to establish a claim for breach of contract, a plaintiff must prove, by a

preponderance of the evidence, (1) the existence of a contract between itself and that defendant,

(2) performance of the plaintiff's obligations under the contract, (3) breach of the contract, and

(4) damages to the plaintiff caused by the defendant's breach.” OOCL (USA) Inc. v. Transco

Shipping Corp., 13-CV-5418, 2015 WL 9460565, at *4 (S.D.N.Y. Dec. 23, 2015) (citation

omitted).

Here, construing the Complaint liberally, as the Court must, Plaintiff failed to allege facts

plausibly suggesting Defendants’ breach of the contract and any damages to Plaintiff caused by

Defendants’ breach. Although the details of the alleged contract between Plaintiff and

Defendants are vague, it appears as though Plaintiff was to be a full-time student at Defendant

FLCC and Defendants were obliged to provide books and a Dell laptop computer to Plaintiff.

(Dkt. No. 1 at 3.) The Complaint does not allege that Defendants failed to provide Plaintiff with

books or the computer. (See generally Dkt. No. 1.) Instead, the Complaint merely alleges that

Defendants failed to provide an unspecified “kind” of education and instruction that they

“advertised to the public and specifically promised and represented to [Plaintiff] that he would

receive.”5 (Dkt. No. 1 at 3.) Defendants’ alleged failure to provide Plaintiff with a particular

“kind” of education was not a breach of the alleged contract. Further, Plaintiff does not allege

that he incurred damages caused by Defendants’ breach.

5 Plaintiff also alleges that he “received minimum the benefits of [Defendants’] promises

and representation.” (Dkt. No. 1 at 4.) It is unclear based on this allegation whether Plaintiff

intends to convey that he received the minimum bargained-for benefits pursuant to the contract

or whether he intends to indicate that he received less than the bargained-for benefits pursuant to

the contract.

As a result, I recommend that, to the extent Plaintiff asserted a breach of contract claim,

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

2. Fraud

Under New York law, fraud requires proof of (1) a material misrepresentation or

omission of a fact, (2) knowledge of that fact’s falsity, (3) an intent to induce reliance, (4)

justifiable reliance by the plaintiff, and (5) damages. Eurycleia Partners, LP v. Seward & Kissel,

LLP, 12 N.Y.3d 553, 559 (N.Y. 2009); Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421,

(N.Y. 1996). At the pleading stage in federal court, a plaintiff must “assert facts that plausibly

support the inference of fraud.” Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 360 (2d Cir.

2013). Additionally, a plaintiff must satisfy the heightened pleading standard set forth in Rule

9(b), which reads:

In alleging fraud or mistake, a party must state with particularity the

circumstances constituting fraud or mistake. Malice, intent, knowledge,

and other conditions of a person's mind may be alleged generally.

Fed. R. Civ. P. 9(b).

In essence, Rule 9(b) places two further burdens on a plaintiff alleging fraud—the first

goes to the pleading of the circumstances of the fraud, the second to the pleading of the

defendant’s mental state. As to the first, the complaint must “(1) detail the statements (or

omissions) that the plaintiff contends are fraudulent, (2) identify the speaker, (3) state where and

when the statements (or omissions) were made, and (4) explain why the statements (or

omissions) are fraudulent.” Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of

N.Y., 375 F.3d 168, 187 (2d Cir. 2004) (internal quotation marks omitted). As to the second,

although mental states may be pleaded “generally,” a plaintiff must nonetheless allege facts “that

give rise to a strong inference of fraudulent intent.” Lerner v. Fleet Bank, N.A., 459 F.3d 273,

290-91 (2d Cir. 2006).

The Complaint fails to allege facts plausibly suggesting any of the required elements for a

fraud cause of action. (See generally Dkt. No. 1.) For example, the Complaint fails to allege

facts plausibly suggesting any statements or omissions made by Defendants or Defendants’

agents that were fraudulent. Hence, the Complaint also fails to allege where and when any

fraudulent statements were made and by whom the statements were made. As a result, I

recommend that Plaintiff’s fraud 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.).6

6 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

In this case, it is not clear whether better pleading would permit Plaintiff to assert a

cognizable cause of action against Defendants. Out of deference to Plaintiff’s pro se status, I

recommend that Plaintiff be granted leave to amend the Complaint.7

If Plaintiff chooses to avail himself of an opportunity to amend, such amended pleading

must set forth a short and plain statement of the facts on which he relies to support any legal

claims asserted. Fed. R. Civ. P. 8(a). In addition, the amended complaint must include

allegations reflecting how the individuals named as Defendants are involved in the allegedly

unlawful activity. Finally, Plaintiff is informed that any such amended complaint will replace

the existing Complaint, and must be a wholly integrated and complete pleading that does not rely

upon or incorporate by reference any pleading or document previously filed with the Court. See

Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that

an amended complaint ordinarily supersedes the original, and renders it of no legal effect.”

(internal quotation marks omitted)).

ACCORDINGLY, it is

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.

7 However, to the extent that Plaintiff’s Complaint is construed as alleging claims pursuant

to 42 U.S.C. § 1983 against Defendant SUNY, I recommend that those claims be dismissed

without leave to amend because the defects are substantive, such that they could not be cured if

afforded an opportunity to amend. See Mercado v. Town of Goshen, 20-CV-5399, 2020 WL

5210949, at *5 (S.D.N.Y. Aug. 28, 2020) (finding that “[b]ecause the defects in Plaintiff’s

complaint cannot be cured with an amendment, the Court declines to grant Plaintiff leave to

amend his complaint” where the plaintiff asserted claims against the “Orange County Court”

which is part of the New York State Unified Court System); Adames v. County of Suffolk Court,

18-CV-4069, 2019 WL 2107261, at *4 (E.D.N.Y. May 14, 2019) (dismissing without leave to

amend claims against the County of Suffolk Court because “the defects in Plaintiff’s claims . . .

are substantive and would not be cured if afforded an opportunity amend.”).

ORDERED that Plaintiff's application to proceed in forma pauperis (Dkt. No. 2) is

GRANTED, and it is further

RECOMMENDED that the Court DISMISS WITH LEAVE TO REPLEAD

Plaintiff's Complaint (Dkt. No. 1) against Defendants 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

ORDERED that the Clerk of the Court shall file a copy of this order, report, and

recommendation on the docket of this case and serve a copy upon the parties in accordance with

the local rules.”

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: June _1_, 2022 Mirtle borat)

Binghamton, New York Miroslav Lovric

U.S. Magistrate Judge

8 Except that, to the extent Plaintiff's Complaint is construed as alleging claims pursuant to

42 U'S.C. § 1983 against Defendant SUNY, I recommend that they be dismissed without leave

to replead.

The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein

in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

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).

13