# Cox v. New York State

> District Court, N.D. New York · April 4, 2023

URL: https://www.frixlaw.com/law-library/cases/10315780

## Case

- **Court:** District Court, N.D. New York
- **Decided:** April 4, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10315780

## How later opinions describe it (automated extraction)

- noting that to demonstrate standing for such injunctive relief, the plaintiff would need to show that “there is a substantial likelihood that she, personally, is likely to be injured again by any allegedly unconstitutional law enforcement practices.”
- noting that a lawsuit against a state official in his official capacity is a suit against the entity employing the official
- noting that a lawsuit against a state official in his official capacity is a suit against the entity employing the official

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

HENRY COX,
Plaintiff, 1:23-CV-0060
V. (MAD/CFH)

NEW YORK STATE; UNITED STATES
OF AMERICA,
Defendants.

APPEARANCES:
Henry Cox
08-B-1418
Upstate Correctional Facility
Box 2001
Malone, New York 12953
Plaintiff pro se
REPORT-RECOMMENDATION & ORDER
Plaintiff pro se Henry Cox purported to commence this action on January 17,
2023, with the filing of a complaint. See Dkt. No. 1. As plaintiff failed to pay this Court’s
filing fee or submit a complete application for leave to proceed in forma pauperis (“IFP”),
| the Court issued an order directing administrative closure with opportunity to comply
with the filing fee requirement. See Dkt. No. 5. On February 1, 2023, plaintiff submitted
a motion to proceed in forma pauperis. See Dkt. Nos. 6, 7. That day, the Clerk was
directed to reopen this action and restore it to the Court’s active docket. See Dkt. No. 8.
Presently before the Court is review of plaintiff's IFP application. See Dkt. Nos. 6, 7.
|. IFP Application

After review of plaintiffs renewed IFP application, the Court concludes that he
financially qualifies to proceed without prepayment of this Court’s filing fee.’ Plaintiff is
advised that IFP status does not include other fees or costs that may be associated with
this litigation, including, but not limited to, copying fees, transcription fees, and witness
fees. As plaintiff has been granted IFP status, the Court proceeds to review of his
complaint pursuant to 28 U.S.C. § 1915(e).

ll. Legal Standards
Section 1915(e) of Title 28 of the United States Code directs that, when a plainti
seeks to proceed IFP, “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
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)(B). Likewise, under 28 U.S.C. §
1915A, a court must review any "complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity" and
must "identify cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which
| relief may be granted; or... seeks monetary relief from a defendant who is immune
from such relief." 28 U.S.C. § 1915A; see Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir.
1999) (per curiam) (explaining that section 1915A applies to all actions brought by
prisoners against government officials ); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.

Plaintiff is reminded that he will be required to pay this Court's $350 filing fee for incarcerated plaintiffs
through installment payments through his inmate account. Plaintiff is required to pay this filing fee
regardless of the outcome of this action. See 28 U.S.C. § 1915(b); Goins v. DeCaro, 241 F.3d 260, 262
(2d Cir. 2001).

2007) (stating that both sections 1915 and 1915A are available to evaluate pro se
prisoner complaints).
It is a court's responsibility to determine that a plaintiff may properly maintain his
complaint before permitting him to proceed with his action. Where the plaintiff is
proceeding pro se, the court must consider the claims “liberally” and “interpret them ‘to
| raise the strongest arguments that they suggest.” Cold Stone Creamery, Inc. v.
Gorman, 361 F. App’x 282, 286 (2d Cir. 2010) (summary order) (quoting Brownell v.
Krom, 446 F.3d 305, 310 (2d Cir. 2006)). It is well-established that “[p]ro se
submissions are reviewed with special solicitude, and ‘must be construed liberally and
interpreted to raise the strongest arguments that they suggest.”” Matheson v. Deutsche
Bank Nat'l Tr. Co., 706 F.Appx. 24, 26 (2d Cir. 2017) (summary order) (quoting
m| Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam);
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (Where a plainti
proceeds pro se, a court is “obliged to construe his pleadings liberally.”) (quoting
McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)). However, this approach
“does not exempt a [pro se litigant] from compliance with relevant rules of procedural
and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). “[T]he tenet that
Court must accept as true all of the allegations contained in a complaint is inapplicable
to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Hernandez
v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). The Court may not “invent factual
allegations that [the plaintiff] has not pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d
Cir. 2010).

“The [Second Circuit]'s ‘special solicitude’ for pro se pleadings, Ruotolo v. IRS,
28 F.3d 6, 8 (2d Cir. 1994), has its limits, because pro se pleadings still must comply
with Rule 8(a) of the Federal Rules of Civil Procedure.” Kastner v. Tri State Eye, No.
19-CV-10668 (CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019).2 Pleading
guidelines are set forth in the Federal Rules of Civil Procedure. Specifically, Rule 8
° provides that a pleading which sets forth a claim for relief shall contain, inter alia, "a
short and plain statement of the claim showing that the pleader is entitled to relief." See
FeD. R. Civ. P. 8(a)(2). “The purpose . . . is to give fair notice of the claim being
asserted so as to permit the adverse party the opportunity to file a responsive answer,
prepare an adequate defense and determine whether the doctrine of res judicata is
applicable.” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (internal quotation
m}| Marks and citations omitted). Rule 8 also requires the pleading to include:
(1) a short and plain statement of the grounds for the court’s jurisdiction
(2) a short and plain statement of the claim showing that the pleader is
entitled to relief; and
(3) a demand for the relief sought... .
FeD. R. Civ. P. 8(a). Although “[n]o technical form is required,” the Federal Rules make
clear that each allegation contained in the pleading “must be simple, concise, and
| direct.” Id. at 8(d).
Further, Rule 10 of the Federal Rules provides:
[a] party must state its claims or defenses in numbered paragraphs, each
limited as far as practicable to a single set of circumstances. A later
pleading may refer by number to a paragraph in an earlier pleading. If
doing so would promote clarity, each claim founded on a separate
transaction or occurrence — and each defense other than a denial — must
be stated in a separate count or defense.
2 Copies of all unpublished cases cited within this Report-Recommendation & Order have been provided
to plaintiff pro se.

FED. R. Civ. P. 10(b). This serves the purpose of "provid[ing] an easy mode of
identification for referring to a particular paragraph in a prior pleading[.]" Flores, 189
F.R.D. at 54 (internal quotation marks and citations 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.”
Ashcroft v. Iqbal, 556 U.S. 622, 678 (2009). A court should not dismiss a complaint if
the plaintiff has stated “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678 (citation omitted).
Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Thus, a pleading
that only “tenders naked assertions devoid of further factual enhancement” does not
suffice.” Id. (internal quotation marks and alterations omitted). Allegations that “are so
vague as to fail to give the defendants adequate notice of the claims against them” are
subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009) (summary
order). Indeed, a complaint that fails to comply with these pleading requirements
“presents far too a heavy burden in terms of defendants’ duty to shape a comprehensiv
defense and provides no meaningful basis for the Court to assess the sufficiency of
their claims.” Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As the Second

Circuit has held, “[W]hen a complaint does not comply with the requirement that it be
short and plain, the court has the power, on its own initiative . . . to dismiss the
complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (citations omitted).
However, “[d]ismissal . . . is usually reserved for those cases in which the complaint is
so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if
o any, is well disguised.” Id. (citations omitted).

Ill. Complaint
Plaintiff seeks to sue the State of New York, “in full capacity,” and the United
States of America, “Federal Agencies.” Dkt. No. 1 (“Compl.”). Plaintiff states, generally,
that his case is based upon the “mass incarceration” of minorities in the United States.
See id. He says the “(PRS) sentencing, the sentencing, and the treatment thereof
between white and Black people are Boas and racist denying due process rights of
Blacks and subjects them to cruel and unusual punishment revolving around the 8"
amendment.” Id. Plaintiff states that “African-Americans (Black people) are
incarcerated 5x more than [sic] their white counterpart [sic].” Id. at 3. Plaintiff avers tha
there are “a number of problem’s [sic] centered around the above problems that lead to
Constitutional violations and should be reviewed and dealt with (addressed).” Id.
Plaintiff states that the “[rJeasons for the overflow of drugs and guns in the inner city is
on the shoulders of our government (contra- Vietnam war).” Id. Plaintiff contends that
these “drugs and guns was [sic] used to take money out [sic] the inner-city and use it to
support the war” which “caused destruction and actions of violence and dug use that
lead [sic] to incarceration.” Id. Plaintiff contends that this “target of the inner city reflect

[sic] the number of Black people targeted and locked up or killed by these actions of
government officials.” Id.
Plaintiff further blames unspecified “Government Officials” for “money being cut
from inner-city schools all over the United States and here in New York State” every
year. See Compl. at 4. Plaintiff asserts that there “was a Bill introduced by the above
mentioned [“David Weprin in Assembly”] in the beginning so they know that the problem
existed yet they keep the sentencing and don’t change nothing [sic] about it and know
its disappropreating [sic] black people, and at the same time destroying the inner city.”
Id. Plaintiff contends that “[t]his is unconstitutional as Government Officials have a [sic]
obligation to/with absolute duties to uphold justice and serve and protect the people fair
and equal in the eyes of the law; the □□□ Amendment (due process) protects that; the
5" amendment (due process) protects that, the amendment (due process & crule
[sic] and unusual punishement [sic] protects that.” Id. Plaintiff proposes, the “13
amendment shall be revisited.” Id. at 4.
Plaintiff states that “[b]ecause of the above | been [sic] lost in the system since
11 years old and subjected to drug abuse and disappropreation [sic] of a Black
household and in these same institutions for children all the way to an adult | been in
| these institutions from 11 to 34 years old for 19 % years, 18 1/12 years. It’s almost like
you cant [sic] get out once your [sic] in the grips of this system.” Compl. at 5. Plaintiff
states, “[w]hen is the United State [sic] government agencies and the States (New York
State) gona [sic] take responsibility and clean up there [sic] mess and fix the enviorment
[sic] they help destroy and continue to destroy to this day.” Id. Plaintiff states he “lived
through deaths and gun violence and drugs that you are responsible for.” Id.

Plaintiff argues the “FRCAs [sovereign immunity] waiver applies only to the
federal government and not to agencies within the Federal Government.” Compl. at 5.
He further states that sovereign immunity “shouldn't exist when there is a clear violation
of the Constitution for then what would be the reason for ‘Law’ or the ‘Unite [sic] States
of America. This [illegible] gives way to abuse of power by government agencies.”
o Compl. at 5. Plaintiff provides, “[ylour courts state: failure to state a claim upon which
relief can be granted; All claims herein are stated with enough facts and address to
what relief can be granted so as to there is no way this motion should be denied.” Id. at
6.
Among those responsible for plaintiff's above complaints are “government
agencies (FBI, CIA- Counterintel Program and ‘War on Drugs with Contra & Vietnam
m| War), the Judges sentencing Blacks and Whites, the Aid or lack thereof of the Gov.
Budget toward Black; (People of Color) and Schooling and DOCCS.” Compl. at 6. “The
addressing [sic] officers and targeting Blacks not only with skin color in mind but with
aggression and violence, and then the Immunity Clauses in these government agencies
playing a high role in accountability or lack there of [sic].” Id. Plaintiff states, “[a]ll of
which is in the body of this argument and needs to be addressed by these courts and |
seek relief under this act after being subjected to all of the above for 34 years for having
my constitutional rights state and federal violated (5° amendment due process, 14"
amendment due process, 8'" amendment due process and cruel and unusual
punishment, and the unconstitutional adoption of the 13 amendment, and by your
dinial [sic] of the courts as it pertains to these issues silencing the voice of reason and
change violating my amendment.” Id.

Plaintiff also challenges the constitutionality of post-release supervision,
apparently as it relates to the length of post-release supervision sentences for those
who have been convicted of rape when compared to other crimes. See Compl. at 8.
He states that post-release supervision “not only has cost us money but taken us
outside our sentencing and going over the max with said supervision, this action the
| courts has already ruled on” but “what was not argued is the bias and discrimination
within the post release supervision guidelines” specific to “a program set for rapist [sic]
and people in jail for rape to supervise them for long period after their sentence.” Id.
Plaintiff states that the “bias is that the other crimes that fall under this post-release
supervision act that don’t have a thought process around it. It’s just throw away the key
and if they find it then post release supervision.” Id. at 8. Plaintiff then appears to
contend that people who have been convicted of rape are given greater opportunities
for release when compared with people who have been convicted of different crimes.
See id. at 9. Plaintiff believes that “something is wrong with that picture and it begins
with sentencing and prison reform.” Id. Plaintiff appears to suggest that the difficulties,
bias, and discrimination that people of color face should be a consideration for
sentencing and post-release supervision. See id.
Plaintiff states, “[t]lo give someone a max time allowed under the sentencing
guidelines in NYS and then PRS on top of that means 5 years past the max (if you
violate you could add more time on top of the max) with that and the above actions it
shows Constitutional violation under the 14° amendment and 8" amendment.” See
Compl. at 5. Plaintiff notes that his case “could be a potential class action lawsuit.” Id.
For plaintiff's first cause of action, he states

To stop discriminating against Black people dealing with post release
supervision sentencing with bias as apose [sic] to their white counter part
[sic]. This is a violation to the Constitutional rights of Black people doing
time in prison or who committe [sic] a crime. They are not being treated
fair and/or equal.
Compl. at 13. For his second cause of action, plaintiff lists
the fair use of post-release supervision, dealing with rape & vilent [sic]
crimes. (PRS) was used for rapist not vilent [sic] crimes and is aplied [sic]
diffrent [sic] favouring [sic] rape. Rape is a mental illness, the vilent [sic]
crimes being committed is environmental making it a [sic] easyer [sic] fix[.]
The sentencing should reflect that. [I]t violates Due Process.
Id.
For his third cause of action, plaintiff states
[T]he due process of aplying [sic] (PRS) to determind [sic] sentencing as
vilent [sic] crimes. There is a max time allowed under the sentencing
guidelines and (PRS) can take you pass [sic] that max time (up to 5 years
pass [sic] that max time). That person [sic] due process is violated when
the time go pass [sic] the max with the (PRS) comes from Rape cases
where PRS is ran with the sentencing just so it dont [sic] violate the
sentencing guidelines.
Compl. at 13. For his fourth cause of action, plaintiff states
Revisiting the 13° amendment provisions that opened the door for Jim
Crow ie mass incarceration of black people (people of color) making it
unconstitutional why the build white cities off the bodies of people of color
after being responsible for why they being locked up. This is targeting.
So | ask targeting be stopped [sic] as well.
Id. at 14. Lastly, plaintiff's fifth cause of action states

Mass incarcerating in the State of New York and the United States of
America (federal agencies) violation of the rights and targeting Blacks
(people of color (Latino) other)) violation of the Constitution to not being
subjected to disappropreation [sic] and disregaurd [sic] of Black rights and
life be stopped and people caught up in that violent Drug wave caused by
the Government and sentenced be compensate [sic] suffered. myself
included[.]
Id. Plaintiff seeks $500 million in compensatory damages and $500 million in punitive
damages. See Compl. at 14.

10

IV. Analysis
To the extent it can be determined, plaintiff appears to claim that his arrest,
prosecution, incarceration, and sentence — and the arrests, prosecutions,
incarcerations, and sentences of people of color in general — violate his First, Fifth,
Eighth, and Fourteenth Amendment rights. See Compl. at 5. Although not explicitly
stated as such, plaintiff also appears to seek to raise equal protection claims,
contending that people of color are being treated differently than similarly-situated white
people insofar as people of color are being arrested and incarcerated at either higher
rates than white people who have committed the same crimes. See generally Compl.
Next, plaintiff appears to challenge the constitutionality of post-release supervision,
generally, because post-release supervision could “extend a sentence” beyond the
maximum allowable sentence for that crime. Plaintiff also appears to argue that post-
release supervision is warranted and constitutional for those who have committed rape,
but for those who have committed other crimes, it is unconstitutional. Next, plaintiff
asks the Court to “revisit” the Thirteenth Amendment as suggests that people of color,
generally, are being “targeted” and incarcerated, apparently in violation of the Thirteenth
Amendment's prohibition against slavery or involuntary servitude. See Compl. at 4.
1

3 Plaintiff also makes similar allegations of “bias” in sentencing between people convicted of rape versus
people convicted of other crimes. See Compl. at 8. However, plaintiff has failed to show that those who
have been convicted of rapes and sentenced to periods of post-release supervision “similarly-situated” to
persons who have been convicted of other (unspecified) crimes who have been sentenced to longer
periods of post-release supervision or that there is no “rational basis” for the differential treatment. “The
Equal Protection Clause ‘is essentially a direction that all persons similarly situated should be treated
alike.” Bill & Ted's Riviera, Inc. v. Cuomo, 494 F. Supp. 3d 238, 245 (N.D.N.Y. 2020) (quoting City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citation omitted)). As plaintiff does not, with
respect to this argument, claim that he is a member of a constitutionally-protected class, he may only
bring “’an equal protection claim pursuant to one of two theories: (1) selective enforcement, or (2) “class
of one.” Bill & Ted's Riviera, Inc., 494 F. Supp. 3d at 246 (quoting AYDM Assoc., LLC v. Town of
Pamelia, 205 F. Supp.3d 252, 265 (N.D.N.Y. 2016)).
11

As a threshold issue, to the extent plaintiff purports to claim that he brings this case
on behalf of himself or others similarly situated or will seek certification of this case as a
class action in the future, see compl. at 5, is well-settled law that a class action cannot
be maintained by a pro se litigant because a non-attorney cannot represent someone
other than themselves. See, e.g., Miller v. Zerillo, No. 07-CV-1719, 2007 WL 4898361,
lat *1 (E.D.N.Y. Nov. 2, 2007) (citing cases and recommending denial of class
certification without prejudice should an attorney appear in the case); see also
lannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998); 28 U.S.C.§ 1654. Moreover, to
the extent plaintiff's comment can be interpreted as a request for class certification, in
addition to failing because plaintiff cannot proceed on a class action pro se, such a
request is also denied because it was not made through a proper motion and does not
m| Satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure.
Thus, to the extent plaintiffs complaint seeks to allege that any wrongs were imposed
on any persons other than himself, because he cannot proceed as a class action at this
time, such claims will be interpreted only insofar as they impact plaintiff, individually.
Accordingly, to the extent plaintiff's complaint can be read as seeking class certification,
it is recommended that the request be denied.
On the merits, there are several bars to plaintiff's complaint, many of them fatal.
First, because plaintiff seeks to sue the United States and/or its agencies, these claims
are barred by sovereign immunity. Although plaintiff argues that federal agencies are
not protected from suit by sovereign immunity, citing the Federal Torts Claims Act
(“FCTA’), plaintiff misunderstands the law. See Compl. at 5.

12

“To begin with, the doctrine of sovereign immunity bars federal courts from hearing
all suits against the federal government, including suits against federal agencies, unless
sovereign immunity has been waived.” Rochelle Marettta-Brooks, et al. Plaintiff, v.
Comm’r of Soc. Sec., et. al. Defendants, No. 5:22-CV-1261 (BKS/ML), 2023 WL
2655195, at *5 (N.D.N.Y. Mar. 27, 2023) (emphasis added) (citing United States v.
° Mitchell, 445 U.S. 535, 538 (1980); Robinson v. Overseas Military Sales Corp., 21 F.3d
502, 510 (2d Cir. 1994) (“Because an action against a federal agency . . . is essentially
a suit against the United States, such suits are . . . barred under the doctrine of
sovereign immunity, unless such immunity is waived.”); see also F.D.I.C. v. Meyer, 510
U.S. 471, 475 (1994) (citing Loeffler v. Frank, 486 U.S. 549, 554 (1988) (holding that
sovereign immunity “shields the [United States] and its agencies from suit[.]”). In
addition, plaintiff carries the burden of demonstrating that sovereign immunity has been
waived. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
Plaintiff does not mention Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
388 (1971),* but to the extent he names the United States as a defendant and appears
to also seek to name the FBI and CIA, Compl. at 6, he would only be able to proceed
under Bivens if he were to name specific federal officers. See Sereika v. Patel, 411 F.
m| Supp. 2d 397, 402 (S.D.N.Y. 2006) (citing Robinson v. Overseas Military Sales Corp..,
21 F.3d 502, 510 (2d Cir. 1994) (noting that the United States cannot be sued under
Bivens because a claim against a federal agency “is essentially a suit against the Unite
States, and Bivens actions against the United States are barred under the doctrine of

4 In Bivens, the Supreme Court of the United States “recognized for the first time an implied private action
for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Correctiona
Services Corp. v. Malesko, 534 U.S. 61, 66 (2001).
13

sovereign immunity.”). “[T]o state a Bivens claim, a plaintiff must allege that he has
been deprived of a constitutional right by a federal agent acting under color of federal
authority and must allege that the individual defendant was personally involved in the
constitutional violation.” O'Donoghue v. United States Soc. Sec. Admin., 828 F. App'x
784, 787 (2d Cir. 2020) (summary order). Claims can only be brought against federal
o agents in their individual capacities for actions taken while the employee was acting
under the color of federal law and may only seek monetary damages. See, e.g., Rivera
v. Fed. Bureau of Investigation, No. 5:16-CV-00997 (NAM/TWD), 2016 WL 6081435, at
*4 (N.D.N.Y. Sept. 13, 2016), report and recommendation adopted, No. 5:16-CV-00997
(NAM/TWD), 2016 WL 6072392 (N.D.N.Y. Oct. 17, 2016) (“The only remedy available
in a Bivens action is an award of monetary damages from defendants in their individual
m| Capacities.’ . . . . Since a court may award only money damages on a Bivens claim,
claims for injunctive relief are unavailable.”) (quoting Higazy v. Templeton, 505 F.3d
161, 169 (2d Cir. 2007) and citing Kurzberg v. Ashcroft, 619 F.3d 176, 179 n.2 (2d Cir.
2010)). Further, “[a] plaintiff in a Bivens action must allege facts indicating that the
defendant was personally involved in the claimed constitutional violation.” Vazquez v.
Astrue, No. 5:18-CV-1492 (DNH/ATB), 2019 WL 4686440, at *5 (N.D.N.Y. Sept. 26,
| 2019), report and recommendation adopted, No. 5:18-CV-1492 (DNH/ATB), 2019 WL
6914775 (N.D.N.Y. Dec. 19, 2019) (citing Alharbi v. Miller, 368 F. Supp. 3d 527, 564
(E.D.N.Y. 2019) and Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009)). Further, a
plaintiff must show that “there is no alternative way in which the plaintiff can seek relief
for the violation of the plaintiff's constitutional right.” Moore v. U.S. Postal Service, No.
01-CV-1609, 2005 WL 165386, at *11 (N.D.N.Y. Jan. 13, 2005).

14

To the extent plaintiff seeks to sue the United States or federal agencies for for
violations of his constitutional rights, regardless of the form of relief requested, plaintiff
cannot proceed under Bivens. See, e.g., Perez v. Hawk, 302 F. Supp. 2d 9, 18
(E.D.N.Y. 2004) (“[T]he United States is immune from constitutional tort claims against
the United States, its agencies, or federal employees sued in their official capacities.”);
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
Further, even if plaintiff had properly named individual federal officers as defendants
— which he has not — very few constitutional claims can proceed under Bivens. The
Supreme Court has held that Bivens allows claims with respect to two® additional and
specific constitutional claims: pursuant to the Fifth Amendment relating to sex
discrimination in employment and the Eighth Amendment Cruel and Unusual
Punishments Clause for failure to provide adequate medical treatment to a federal
prisoner. See Wiley v. Fernandez, 9:10-CV-652 (GTS/CFH), 2021 WL 6550821, at *4
(citing Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980)).
Indeed, in Ziglar v. Abbasi, 582 U.S. 120, 137 S.Ct. 1843, 1857 (2017), the Supreme
Court of the United States “urged lower courts to exercise restraint in creating implied
causes of action against federal officials to enforce constitutional rights in new contexts,
went so far as to clarify that “expanding the Bivens remedy is now a ‘disfavored’
judicial activity.” Wilson v. Bolt, 9:18-CV-416 (DNH/TWD), 2019 WL 5197335, at *5
(N.D.N.Y. May 28, 2019) (quoting Ziglar, 137 S.Ct. at 1857) (additional citation omitted).

5 Bivens itself recognized that “a person claiming to be the victim of an unlawful arrest and search could
bring a Fourth Amendment claim for damages against the responsible agents even though no federal
statute authorized such a claim.” Hernandez v. Mesa, 206 L. Ed. 2d 29, 140 S. Ct. 735, 741 (2020)
15

To the extent plaintiff cites the First Amendment and may be seeking to bring a clai
for monetary damages pursuant to Bivens, even if plaintiff had properly named a federal
agent in his or her individual capacity,® such a claim must be dismissed with prejudice
as the Supreme Court of the United States recently confirmed, “there is no Biven’s
action for First Amendment retaliation.” Egbert v. Boule, 213 L. Ed. 2d 54, 142 S. Ct.
4793, 1807 (2022).
Next, although plaintiff cites the Fifth and Eighth Amendments in passing, he fails to
set forth any specifics explaining how any federal agents violated his Fifth or Eighth
Amendment rights. See Compl. at 6. Thus, even while Bivens has been extended in
limited contexts to claims for Fifth or Eighth Amendment violations — sex discrimination
in employment and medical indifference with respect to a federal prisoner — plaintiff
does not set forth any allegations that fit within these narrow expansions of Bivens and
the allegations within his case — concerning racial bias relating to his arrest,
prosecution, incarceration, and sentencing — are wholly unrelated to these narrow
constitutional claims found by the Supreme Court to be allowed under Bivens.’ In
sum, to the extent plaintiff seeks to bring claims for monetary damages or for injunctive
relief for violations of his First, Fifth, or Eighth Amendment rights against United States,
| any federal agencies, or any federal employees under Bivens, it is recommended that
such claims be dismissed with prejudice. In addition to dismissal on the merits, the

6 As with his other claims, plaintiff's First Amendment claim also would fail under Bivens because plaintif
cannot proceed against the United States or its agencies, but has not identified the specific federal agent
that plaintiff alleges to have been personally involved in violating his First Amendment rights.
Additionally, despite conclusorily claiming that his First Amendment rights were violated, plaintiff sets forth
no facts to support a First Amendment violation.
Further, plaintiff has made only generalized and vague allegations and has failed to set forth facts to
support a claim that a specific federal employee(s) deprived him of his federal or constitutional rights
while acting under the color of federal authority. See O'Donoghue, 828 F. App’x at 787.
16

Court notes that it would appear that any Bivens claims would also be barred by Heck
unless and until plaintiff could satisfy Heck’s conditions.®
Despite the United States’ general sovereign immunity from suit,
The Federal Tort Claims Act . . . provides a limited waiver of sovereign
immunity that allows the United States to be sued for certain torts as if it
had been a private party. The FTCA's “remedy against the United States”
for damages “arising from the negligent or wrongful act or omission of any
° employee of the Government while acting within the scope of his office or
employment is exclusive of any other civil action or proceeding against the
employee.” 28 U.S.C. § 2679(b)(1).
Xiang Li v. Duncan, No. 5:12-CV-1427 (LEK/DEP), 2013 WL 4483078, at *2 (N.D.N.Y.
Aug. 20, 2013) (internal citation omitted). However, the FTCA “bars suits against
federal agencies, such as the Department of Justice, which includes the USAO, and
provides an exclusive remedy against the United States.” Id. (citing 28 U.S.C. §
m| 2679(a)).
Here, although plaintiff makes a passing reference to the FTCA, his complaint is
lacking any facts that support a claim based on the FTCA. See, e.g., Lepre v. New Yor
State Ins. Fund, No. 1:13-CV-0926 (GTS/CFH), 2014 WL 4093658, at *6 (N.D.N.Y. Aug
18, 2014) (noting that the FTCA waives sovereign immunity from torts committed by
federal employees acting within the scope of their employment, including “[a]ny claim
arising out of assault, battery, false imprisonment, false arrest, malicious prosecution,
abuse of process, libel, slander, misrepresentation, deceit, or interference with contract
rights [.]” ) (quoting 28 U.S.C. §§ 2680(h)). He does not state what claims he seeks to
bring pursuant to the FTCA. Insofar as plaintiff may be seeking to raise his

8 As the undersigned recommends dismissal on the merits with prejudice, dismissal without prejudice is
not warranted on the basis of Heck because even if plaintiff were to overcome the Heck bar in the future,
his Bivens claims would still be meritless.
17

constitutional claims pursuant to the FTCA, such claims must be dismissed because,
“although the FTCA waived the United States’ sovereign immunity as to certain claims,
it does not waive immunity for claims of constitutional violations.” Rivera v. US N. Dist.
Ct. Albany, No. 1”21-CV-995 (MAD/DJS), 2022 WL 17985924, at *1 (N.D.N.Y. Dec. 28,
2022) (affirming Report-Recommendation of the Magistrate Judge by holding that
| constitutional claims are subject to dismissal because the FTCA does not waive the
United States’ sovereign immunity as to claims asserting constitutional violations.”)
(citing F.D.I.C. v. Meyer, 510 U.S. 471 (1994)).
Furthermore, even if plaintiff had set forth claims that would properly fall under
the FTCA, he has not shown that he has exhausted his administrative remedies.
Section 2675(a) of the FTCA states that an FTCA action “shall not be
instituted” unless a claimant has “first presented the claim to the
i appropriate Federal agency” and received a final denial of that claim. See
also 28 U.S.C. § 2401(b) (stating that an FTCA claim is “forever barred”
unless presented in writing to the appropriate federal agency within two
years of accrual).
Xiang Li, 2013 WL 4483078, at *2; see also Lepre, 2014 WL 3093658, at *7 (“[A]n
FTCA claim must be filed with the court within six years of its accrual. A plaintiffs FTC
claim accrues at the time of injury.”) (citing Barrett v. United States, 689 F.2d 324, 327
(2d Cir. 1982)).
Any potential FTCA claim that calls into question his arrest, prosecution,
incarceration, or sentencing would be barred by Heck unless and until plaintiff is able to
demonstrate favorable termination. The Heck applies to bar FTCA actions that imply
the invalidity of a conviction. As plaintiff appears to base any FTCA claims on his
allegations that his arrest, prosecution, incarceration, and sentence, including his post-

18

release supervision, are based on racial bias and violate of his constitutional rights,
these challenges can only be brought through a habeas corpus petition.®
Accordingly, it is recommended that any claim plaintiff may be seeking to raise
against the United States under the FTCA be dismissed without prejudice and with
opportunity to amend should plaintiff be able to demonstrate (1) that his conviction has
| been overturned or otherwise deemed invalidated by a court of law or an FTCA claim
that does not call into question the validity of his conviction; (2) a claim against the
United States that falls within the FTCA; and (3) proper exhaustion of his administrative
remedies under the FTCA.
Next, plaintiffs claims against the State of New York for monetary damages are
barred by the state’s sovereign immunity. “As a general rule, state governments and
their agencies may not be sued in federal court unless they have waived their Eleventh
Amendment immunity or there has been a valid abrogation of that immunity by
Congress.” Jackson v. Battaglia, 63 F. Supp. 2d 214, 219-20 (N.D.N.Y. 2014) (citation
omitted). Plaintiff appears to seek to bring his claims against the State of New York for
the alleged violations of his constitutional rights under section 1983.
The Eleventh Amendment bars claims for money damages and injunctive
or declaratory relief against a state or an arm of the state unless the state
has specifically waived, or Congress has abrogated, its sovereign
immunity. See Cory v. White, 457 U.S. 85, 90-91 (1982); Edelman v.
Jordan, 415 U.S. 651, 667-69 (1974). New York State has not waived its
sovereign immunity and Congress has not abrogated its sovereign
immunity in § 1983 actions. See Jones v. N.Y. Div. of Military & Naval
Affairs, 166 F.3d 45, 49 (2d Cir. 1999).

As plaintiff has not actually set forth any clear FTCA claim, the undersigned cannot state with certainty
that any FTCA claim plaintiff may raise would implicate Heck. Accordingly, the without prejudice
dismissal recommendation takes into account the possibility that plaintiff may intend to raise an FTCA
claim that would not call the validity of his conviction into question.
19

Ennis v. New York Dep't of Parole, No. 5:18-CV-00501 (GTS/TWD), 2018 WL 3869151,
at *4 (N.D.N.Y. June 12, 2018), report and recommendation adopted, 2018 WL
3862683 (N.D.N.Y. Aug. 14, 2018). Section 1983 claims do not abrogate the Eleventh
Amendment immunity of the states. See Quern v. Jordan, 440 U.S. 332, 340-41 (1979).
Instead, plaintiff must seek to sue a state official(s) in his or her individual capacity. See
| Farid v. Smith, 850 F.2d 917, 921 (2d Cir. 1988) (noting that a lawsuit against a state
official in his official capacity is a suit against the entity employing the official).
Moreover, although the Eleventh Amendment “generally does not bar claims for
prospective injunctive or declaratory relief’ against individual officers sued in their
individual capacities, plaintiff does not name any state officials as defendants in this
action.’° Quern, 440 U.S. at 338. However, even if plaintiff had named individual state
Officers in their individual capacities — which he has not — his claims for prospective
injunctive relief would still fail. As to his requested prospective injunctive relief, plaintiff
appears to allege, generally, that terms of post-release supervision violate “due
process” as post-release supervision can “extend” a sentence beyond its maximum
term of imprisonment. Compl. at 8. However, as will be discussed below, infra at 16,
his requested injunctive relief cannot be granted under section 1983 as claims regardin
| plaintiff's sentencing or post-release supervision term must instead be brought pursuant
to a habeas corpus petition. Accordingly, it is recommended that (1) any claims that
can be interpreted as being raised against the State of New York under 42 U.S.C. §
1983 for monetary damages for alleged violations of plaintiff's constitutional rights be

10 Plaintiff is advised that personal involvement of the state official in the alleged violation of
constitutional rights is a prerequisite to an award of damages under § 1983. See Wright v. Smith, 21 F.3d
496, 501 (2d Cir. 1994).
20

dismissed due to the state’s sovereign immunity under the Eleventh Amendment, and
(2) any claims for injunctive relief relating to his term of post-release supervision be
dismissed with prejudice as such relief must be sought pursuant to a habeas corpus
petition and not pursuant to section 1983.
Even if sovereign immunity were not a bar to plaintiffs claims against the United
States and/or federal agencies and the State of New York, plaintiff's claims also fail
under Heck v Humphrey, 512 U.S. 477 (1994). Plaintiff appears to allege that his
sentence, and any period of post-release supervision, may be unconstitutional because
it is a product of racial bias. This claim is not appropriately brought through a section
1983 or Bivens case because a determination in plaintiff's favor regarding the
constitutionality of plaintiff's criminal prosecution, conviction, or sentence would
m| Undermine the validity of his conviction; thus, it and is barred under Heck. See Heck,
512 U.S. at 486-87. Plaintiff cannot recover damages in a section 1983 action “for [an]
allegedly unconstitutional conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or sentence invalid” unless he
can demonstrate that “the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make
Such a determination, or called into question by a federal court's issuance of a writ of
habeas corpus.” Id. Plaintiff has not shown that his convictions have been overturned
or otherwise resolved in his favor."

11 Although plaintiff attempts to couch his allegations in the complaint and causes of action as non-
specific and applying to people of color as a whole, it appears that this may an attempt to find a loophole
to avoid a Heck dismissal. As already stated, plaintiff cannot bring claims on behalf of others.
Accordingly, plaintiff's generalized language does not alter the fact that such a claim is barred by Heck.
21

Insofar as plaintiff may be suggesting that post-release supervision violates his
constitutional rights by extending the length of his sentence, “such a challenge can only
be brought in federal court pursuant to a 28 U.S.C. § 2254 petition for a writ of habeas
corpus, not through a § 1983 complaint.” Peoples v. Leon, No. 9:18-CV-1349
(LEK/DEP), 2019 WL 13158025, at *3 (N.D.N.Y. Feb. 19, 2019) (citing Hardy v. Fischer,
F. Supp. 2d 614, 621 (S.D.N.Y. 2010) (“[P]laintiffs must bring challenges to the
validity or duration of their PRS sentences by seeking a writ of habeas corpus.”)).
Accordingly, all claims relating to the length of plaintiff's sentence or post-release
supervision also must be dismissed as such claims can be reviewed only through a
petition from habeas corpus. See Peoples, 2019 WL 13158025, at *3.
Furthermore, to the extent plaintiff seeks to enjoin various unnamed law
m| enforcement and/or government agencies from depriving people of their constitutional
rights, plaintiff should “be cautioned that [he] would have to demonstrate that [he] has
standing to seek such an injunction.” Jackson v. Exec. Off. of United States Att'ys, No.
07CIV6591 (RJH/DCF), 2009 WL 10677067, at *8 (S.D.N.Y. Feb. 2, 2009), report and
recommendation adopted sub nom. Jackson v. Exec. Off. for United States Att'ys, No.
07 CIV. 6591, 2009 WL 10677136 (S.D.N.Y. Mar. 26, 2009), aff'd sub nom. Jackson v.
m| Cnty. of Rockland, 450 F. App’x 15 (2d Cir. 2011) (noting that to demonstrate standing
for such injunctive relief, the plaintiff would need to show that “there is a substantial
likelihood that she, personally, is likely to be injured again by any allegedly
unconstitutional law enforcement practices.”),
Similarly, to the extent plaintiff argues, generally, that people of color are being
arrested and incarcerated for drug and other crimes at a disproportionately higher rate

22

than white people, and seeks that the Court order that bias against people of color in
arrest and sentencing cease and that the “13" amendment” be “revisited” is not relief
this Court can award. Initially, plaintiff fails to state how his constitutional rights were
violated or specify the persons/entities involved in the deprivation of his constitutional
rights. Secondly, this Court does not direct legislative policy, such as sentencing
° reform; constitutional conventions; or control school funding. Such matters would
appear more appropriate for elected officials. To the extent plaintiff may be suggesting
that he is being subjected to “involuntary servitude”’? in violation of the Thirteenth
Amendment, such claim must fail because, in addition to being barred by Heck, such an
allegation is frivolous. The Thirteenth Amendment explicitly states, “Neither slavery nor
involuntary servitude, except as a punishment for a crime whereof the party shall have
m| been duly convicted, shall exist within the United States, or any place subject to their
jurisdiction.” U.S. CONST. AMEND. XIII (emphasis added). Plaintiff does not dispute that
he is incarcerated following his conviction for a crime. According to the New York State
DOCCS “Incarcerated Lookup,” plaintiff is incarcerated for Robbery in the First Degree.
See DOCCS Incarcerated Lookup, available at https://nysdoccslookup.doccs.ny.gov/
(last visited Mar. 30, 2023).
Finally, the undersigned also must determine whether the recommendation is for
dismissal with or without prejudice. When addressing a pro se complaint, a district court
generally “should not [be] dismiss[ed] 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.” Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009) (internal quotation

12 To be clear, plaintiff makes no claim that he is being forced to work. Instead, it appears that he may
be suggesting that his involuntary incarceration is violative of the Thirteenth Amendment.
23

marks and citation omitted). However, the Court is not required to grant leave to amend
when amendment would be futile. See Cuoco v. Mortisugu, 222 F.3d 99, 112 (2d Cir.
2000). In this case, because “[t]he problem[s] with [plaintiff's] causes of action [are]
substantive[,] better pleading will not cure [them,]’ and any attempt to amend would,
therefore, be futile. Id.; see, e.g., Mahmood v. United States Gov't, No. 1:20-CV-207
(MAD/DJS), 2020 WL 3965125, at *2 (N.D.N.Y. Mar. 17, 2020) (“As such, his claims
against the United States should be dismissed with prejudice.”), report and
recommendation adopted sub nom. Mahmood v. United States, No. 1:20-CV-207
(MAD/DJS), 2020 WL 1808206 (N.D.N.Y. Apr. 9, 2020); Praileau_v. United States, No.
1:18-CV-1196 (MAD/DJS), 2018 WL 5811426, at *3 (N.D.N.Y. Nov. 6, 2018)
(recommending the dismissal of claims against the United States and its agencies with
| prejudice because such claims were barred by sovereign immunity), report and
recommendation adopted, No. 1:18-CV-1196 (MAD/DJS), 2019 WL 422528 (N.D.N.Y.
Feb. 4, 2019); Moore v. Samuel S. Stratten Veterans Admin. Hosp., No. 1:16-CV-0475
(LEK/CFH), 2016 WL 3659909, at *1 (N.D.N.Y. June 30, 2016) (dismissing claims
against agency of the United States with prejudice and without leave to amend).
Here, as plaintiff's potential section 1983 and Bivens claims are barred by sovereign
immunity, Heck v. Humphrey, and, to the extent it relates to the length or
constitutionality of his sentence or post-release supervision, must be brought as a
habeas corpus petition, no change to his pleading will cure these particular bars.
However, despite finding it unlikely that plaintiff can state a cognizable claim for relief
relating to the claims he set forth in this action, recognizing that plaintiff is pro se, the

24

undersigned recommends providing plaintiff with one opportunity to amend to the extent
he may able to state a cognizable claim for relief in an amended pleading.
V. Conclusion
Wherefore, for the reasons set forth herein, it is hereby
ORDERED, that plaintiff's IFP application, dkt. nos. 6, 7, is GRANTED for purposes
of filing; and it is
RECOMMENDED, that plaintiff's complaint, dkt. no. 1, be DISMISSED as follows:
(1) claims for monetary relief against the State of New York for alleged violations of
his constitutional rights pursuant to 42 U.S.C. § 1983; and all claims against the United
States, the Federal Bureau of Investigation (“FBI”), and the Central Intelligence Agency
(“CIA”) pursuant to Bivens be DISMISSED WITH PREJUDICE;
(2) potential claims pursuant to the First, Fifth and Eighth Amendment claims
pursuant to Bivens against federal agents in their individual or official capacities be
DISMISSED WITH PREJUDICE;
(3) potential claims against state officers in their individual capacities for monetary or
injunctive relief or in their official capacities for prospective injunctive relief for violations
of plaintiff's constitutional rights pursuant to 42 U.S.C. § 1983 be DISMISSED
| WITHOUT PREJUDICE;
(4) claims relating to the length or constitutionality of plaintiff's sentence or post-
release supervision be DISMISSED WITH PREJUDICE and without opportunity to
amend in this action, but without prejudice to plaintiff bringing a habeas corpus
proceeding if he is able to do so;'%

13 finoe Court makes no comment as to whether plaintiff may properly proceed with a habeas corpus
petition.
25

(5) constitutional claims against the United States pursuant to the Federal Tort
Claims Act be DISMISSED WITH PREJUDICE;
(6) potential claims against the United States under the Federal Tort Claims Act, not
arising from constitutional claims, be DISMISSED WITHOUT PREJUDICE and with
opportunity to amend as specified herein;
° (7) potential claims that allege that plaintiff's arrest, prosecution, incarceration, or
sentencing was the product of racial bias, in violation of 42 U.S.C. § 1983, as stated
against (a) the State of New York, for prospective, injunctive relief, and (b) potential
claims against individual officers in their personal capacities for monetary or injunctive
relief, which are barred by Heck v. Humphrey, be DISMISSED WITHOUT PREJUDICE
and with opportunity to amend only in the event that plaintiff can demonstrate that his
m| conviction has been overturned or otherwise resolved in his favor,
(8) plaintiff's apparent contention that unspecified defendants violated the Thirteenth
Amendment and his request that the Court “revisit” the Thirteenth Amendment, either
pursuant to section 1983 or Bivens, be DISMISSED WITH PREJUDICE;
(9) plaintiff's apparent request to proceed as a class action be DISMISSED
WITHOUT PREJUDICE”: and it is further
RECOMMENDED, that if the District Judge permits plaintiff an opportunity to
amend, plaintiff be given thirty (30) days from the filing date of the District Judge’s
Decision & Order to file an amended complaint, '* and if plaintiff fails to file an amended
complaint within that time period, the matter be closed without further order of the Court;

14 Dismissal without prejudice is recommended to account for the possibility that plaintiff could obtain
Diaintif is advised that if the District Judge, following review of this Report-Recommendation & Order,
permits plaintiff an opportunity to amend, plaintiff may proceed only on those claims that were not
26

ORDERED, that the Clerk of the Court serve this Report-Recommendation &
Order on plaintiff in accordance with Local Rules.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within
which to file written objections to the foregoing report. Such objections shall be filed with
the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
o (14) DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d
85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15
(2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 72 & 6(a)."6
Dated: April 4, 2023
Albany, New York

i Christian F. Hummel
U.S. Magistrate Judge

ry

dismissed by this Court with prejudice. Further, any amended complaint will supersede and replace the
original complaint it its entirety. Thus, plaintiff must replead any facts or claims he wishes to include and
may not incorporate by reference any portion of the original complaint.
16 If you are proceeding pro se and are served with this Order by mail, three additional days will be
added to the fourteen-day period, meaning that you have seventeen days from the date the Order was
mailed to you to serve and file objections. See 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. See id. § 6(a)(1)(C).
27

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10315780. Public record. Not legal advice.