Soberanis

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

KENNETH G. SOBERANIS,

Plaintiff,

V.

No. 6:25-CV-0676

JARYN A. SPELLMAN, et al., (AJB/PJE)

Defendants.

APPEARANCES:

Kenneth G. Soberanis

200 North Levitt Street, Apt. 810

Rome, New York 13440

Plaintiff pro se

_|PAUL J. EVANGELISTA

~“|U.S. MAGISTRATE JUDGE

REPORT-RECOMMENDATION AND ORDER’

|. In Forma Pauperis

Plaintiff pro se Kenneth G. Soberanis (“plaintiff’) commenced this action on May

27, 2025, by filing a complaint. See Dkt. No. 1. In lieu of paying this Court’s filing fee,

plaintiff submitted an application for leave to proceed in forma pauperis (“IFP”). See Dkt.

™! Nos. 2, 6. The undersigned has reviewed plaintiff's IFP application and determines that

he financially qualifies to proceed IFP.2 This Court must now assess the merits of

plaintiff's complaint pursuant to 28 U.S.C. §§ 1915; 1915A.

’ This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C.

§ 636(b) and N.D.N.Y. L.R. 72.3(c).

2 Plaintiff is advised that although he has been granted IFP status, he is still required to pay any fees and

costs they may incur in this action, including, but not limited to, copying fees, transcript fees, and witness

fees.

ll. Initial Review

A. Legal Standards

28 U.S.C. § 1915 directs that, when a plaintiff seeks to proceed IFP, “the court shall

dismiss the case at any time if the court determines that .. . the action or appeal (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)(B). “Thus, it is a court’s responsibility to determine that a plaintiff may properly

maintain his complaint before permitting him to proceed further with his action.” Praileau

v. Fischer, 930 F. Supp. 2d 383, 394 (N.D.N.Y. 2013).

Generally, where the plaintiff proceeds pro se, “the court must construe his

submissions liberally and interpret them to raise the strongest arguments that they

_,| suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam)

(internal quotation marks and citation omitted). The Second Circuit affords pro se litigants

a “special solicitude” such “that a pro se litigant’s submissions must be construed liberally,

and that such submissions must be read to raise the strongest arguments that they

suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal

quotation marks, citations, and footnote omitted).

The Court is not required to accept unsupported allegations that are devoid of

sufficient facts or claims. Although detailed allegations are not required at the pleading

stage, the complaint must still include enough facts to provide the defendants with notice

of the claims against them and the grounds upon which these claims are based. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atlantic v. Twombly, 550 U.S.

544, 555-56 (2007). Ultimately, the plaintiff must plead “enough facts to state a claim to

relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 678

(“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.”).

“If dismissal is warranted and the plaintiff is pro se, the court generally affords the

plaintiff leave to amend the complaint.” Rich v. AKwesasne Mohawk Casino Resort, No.

8:24-CV-255 (AMN/CFH), 2024 WL 3677262, at *2 (N.D.N.Y. Aug. 6, 2024), report and

recommendation adopted, No. 8:24-CV-255 (AMN/PJE), 2025 WL 286937 (N.D.N.Y. Jan.

24, 2025) (citing Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995)). “However, an

opportunity to amend is not required where ‘the problem with [the plaintiff's] causes of

action is substantive’ such that ‘better pleading will not cure it.” /d. (quoting Cuoco v.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).

Ill. Discussion

A. Plaintiff Complaint?

Plaintiff's complaint arises out of the following series of events. On April 5, 2025,

at 623 West Thomas Street, Rome, New York, plaintiff answered the front door of the

downstairs apartment and was met by Jaryn A. Spellman, #12103, Rome Police Officer

™! (“Spellman”). See Dkt. No. 1 at 4. Spellman asked plaintiff whether he “was supposed

to be there.” /d. Plaintiff replied, “Yes.” Id. Thereafter, Spellman “shot [him] at close

range with a taser gun.” /d. Plaintiff states that the taser prongs struck him “directly [at]

3 Plaintiff's complaint includes one attachment. See Dkt. No. 1 at 10. This attachment has also been

reviewed in connection with the initial review of plaintiff's complaint. See Sira v. Morton, 380 F.3d 57, 67

(2d Cir. 2004) (“A complaint is deemed to include any written instrument attached to it as an exhibit,

materials incorporated in it by reference, and documents that, although not incorporated by reference, are

integral to the complaint.”) (internal quotation marks and citations omitted).

[his] heart and sternum,” resulting in a fractured sternum, nerve damage, and scarring on

both hands. See jd. Plaintiff claims that he did not pose any threat to Spellman, did not

“have a weapon in his hand,” and was not charged with resisting arrest after being tased.

Id. Plaintiff also alleges that after Spellman tased him, but before he was taken to the

hospital, Jane Doe, Rome Police Officer (“Jane Doe”) tased him a second time, while in

“la police car.4 See id. at 4, 6-7. Jane Doe “was a short Hispanic lady” who “was working

as [a] responding officer or transporting officer.” /d. at 6.

Upon arriving at the Oneida County CF, plaintiff claims that he was “neglected any

medical attention, and pain medicine.” Dkt. No. 1 at 7. He states that he was eventually

“put down for X-rays and to see medical for nerve damage” and “was put on Charlie Block

for orientation (5 days).” /d. Plaintiff states that the medical treatment he received at the

Oneida County CF “was very, very poor.” /d.

On May 13, 2025, while housed at the Oneida County CF, plaintiff was assaulted

by another inmate who struck him four times with a broomstick as he exited the gym. See

Dkt. No. 1. at 5. Plaintiff claims that, at the time of the assault, C.O. Hunter Corcoran®

(“Corcoran”) was the C.O. working in that area of the prison and was “relieving another

C.O. on their break.” /d. Plaintiff asserts that Corcoran failed to protect him because

the broomstick was not secured in the supply closet located behind the desk. See id.

Plaintiff states that the C.O.s were responsible for securing the broom and that the supply

closet was supposed to be “checked and locked at all times, and probably logged after

4 Plaintiff appears to state that he does not recall being tased a second time but learned of this event from

two corrections officers (“C.O.s”) while housed at the Oneida County Correctional Facility (“Oneida County

CF”). See Dkt. No. 1 at 6. Plaintiff states that the unidentified C.O.s informed him that he was “being very

uncooperative when being brought to the jail.” /d.

5 The docket lists Corcoran’s name as “Corcoran Hunter,” however, the May 13, 2025, misbehavior report

lists Corcoran’s name as “Hunter Corcoran.” Dkt. No. 1 at 10. The undersigned will refer to the defendant

as Corcoran.

every shift.” /d. Plaintiff also claims that on May 18, 2025, he filed “multiple grievances”

with non-party Lt. Branham regarding this incident but has not received a response. /d.

Plaintiff's complaint also includes a copy of a May 13, 2025, misbehavior report,

which Corcoran authored, documenting the May 13, 2025, attack on plaintiff at the Oneida

County CF. See Dkt. No. 1 at 10. The misbehavior report states that Corcoran observed

plaintiff get into an argument with a fellow inmate, non-party Felix Robles (“Robles”), as

they exited the recreation yard. See id. A third inmate, non-party Shakir Elliot (“Elliot”),

“attempted to separate the two.” /d. Robles “then ran and grabbed a broom and began

to strike [plaintiff] in the head.” /d. Plaintiff responded by “striking” Robles in the head

with a “closed fist.” /d. Corcoran radioed a “Code 2 Pod 4’ and ordered the unit to secure

their cells.” /d. Plaintiff “then self-secured to his cell.” /d. Plaintiff seeks $100,000 for his

_,| alleged physical and emotional injuries. See Dkt. No. 1-1; Dkt. No. 1 at 9.

B. Analysis®

Plaintiff seeks to proceed pursuant to 42 U.S.C. § 1983 against Spellman, Jane

Doe, and Corcoran, alleging that his Fourth and Fourteenth Amendment rights were

violated. See generally Dkt. No. 1; see also Triestman, 470 F.3d at 475 (“This policy of

liberally construing pro se submissions is driven by the understanding that ‘[i]mplicit in the

m| tight of self-representation is an obligation on the part of the court to make reasonable

allowances to protect pro se litigants from inadvertent forfeiture of important rights

® Plaintiff's civil cover sheet checks the box indicating “U.S. Government” as the basis of jurisdiction. See

Dkt. No. 1-1. However, the United States Government is not named as a plaintiff in this action. See

generally Dkt. No. 1. Reading plaintiffs complaint liberally and affording him due solicitude, it appears

plaintiff likely intended to mean that his claims involve federal question jurisdiction. See Cinotti v. Adelman,

709 F. App’x 39, 40 (2d Cir. 2017) (summary order) (“[A]lthough [the plaintiff's] pro se complaint does not

refer to 42 U.S.C. § 1983, the district court should have construed it liberally as asserting § 1983 claims,

which provide a basis for federal question jurisdiction.”).

because of their lack of legal training.’””) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.

1983)).

1. Defendants’ Capacities

Although the complaint lists Spellman as “#12103, Rome Police Officer,” Jane Doe

as a “Rome Police Officer,” and Corcoran as an “Oneida County [CF] [C.O.]”, plaintiff does

not specify whether he wishes to sue Spellmen, Jane Doe, and Corcoran in their official

capacities, individual capacities, or both. See generally Dkt. No. 1. Accordingly, “[a]t this

early stage, the undersigned will consider whether either a personal or official capacity

claim can survive initial review.” Scott v. Crossway, No. 1:22-CV-500 (BKS/CFH), 2022

WL 16646531, at *6 (N.D.N.Y. Nov. 3, 2022), report and recommendation adopted, No.

1:22-CV-500 (BKS/CFH), 2023 WL 34543 (N.D.N.Y. Jan. 4, 2023) (citing Ying Jing Gan

_| Vv. City of New York, 996 F.2d 522, 530 (2d Cir. 1993) (citations and quotation marks

omitted) (“[I]n many cases, a complaint against public officials will not clearly specify

whether officials are sued personally, in their official capacity, or both, and only [t]he

course of proceedings . . . will indicate the nature of the liability to be imposedf[.]”).

2. Individual Capacity Claims

a. Fourth Amendment: Excessive Force

“Where . . . the excessive force claim arises in the context of an arrest or

investigatory stop of a free citizen, it is most properly characterized as one invoking the

protections of the Fourth Amendment... .” Williams v. Leach, No. 5:24-CV-0721

(BKS/TWD), 2024 WL 3339881, at *3 (N.D.N.Y. July 8, 2024), report and recommendation

adopted, No. 5:24-CV-721 (BKS/TWD), 2024 WL 4291332 (N.D.N.Y. Sept. 25, 2024)

(quoting Graham v. Connor, 490 U.S. 386, 394 (1989)); see also Shamir v. City of New

York, 804 F.3d 553, 556 (2d Cir. 2015) (explaining that “the use of excessive force renders

a seizure of the person unreasonable and for that reason violates the Fourth

Amendment.”).

“Three elements must be objectively examined to determine whether excessive

force was used for Fourth Amendment violations: (1) the need for the application of force;

(2) the relationship between that need and the amount of force that was used; and (3) the

extent of the injury inflicted.” Burrell v. Van Winkler, No. 6:24-CV-1169 (DNH/MJk), 2024

WL 4957174, at *7 (N.D.N.Y. Oct. 30, 2024), report and recommendation adopted, No.

6:24-CV-1169, 2024 WL 4834215 (N.D.N.Y. Nov. 20, 2024) (quoting Graham, 490 U.S. at

390) (internal quotation marks omitted). “The extent of intrusion on the suspect's rights

must be balanced against the importance of governmental interests.” /d. (quoting

_,| Tennessee v. Garner, 471 U.S. 1, 8 (1985)) (internal quotation marks omitted). “The

standard for excessive force under the Fourth Amendment is not a demanding one.” /d.

(first citing Castro v. Cnty. of Nassau, 739 F. Supp. 2d 153, 176 (E.D.N.Y. 2010) (denying

summary judgment on excessive force claim where handcuffs applied to the plaintiff “left

imprints on his wrists and caused his wrists to become ‘red and sore[,]’ finding that “a

rational jury could find that the soreness Castro claims to have experienced was

m| SUfficiently severe to be a cognizable injury under § 1983”); then citing Sforza v. City of

New York, No. 07-CV-6122 (DLC), 2009 WL 857496, at *15 (S.D.N.Y. Mar. 31, 2009)

(denying summary judgment on excessive force claim and holding that, if proven,

“bruising and other nonpermanent injuries are sufficient” to demonstrate excessive force).

“It is the force used, not the injuries caused, which must be determined to be de minimis

as a matter of law.” /d. (quoting Campbell v. City of New York, No. 06-CV-5743 (HB),

2010 WL 2720589, at *8 (S.D.N.Y. June 30, 2010)).

In assessing whether force was objectively reasonable under the Fourth

Amendment, a court should pay careful attention to the facts and

circumstances of each particular case, including the severity of the crime at

issue, whether the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest or attempting

to evade arrest by flight.

Figuereo v. City of Saratoga Springs, No. 1:23-CV-0922 (AMN/PJE), 2025 WL 460784,

at *8 (N.D.N.Y. Feb. 11, 2025) (quoting Soares v. Connecticut, 8 F.3d 917, 921 (2d Cir.

1993) (quoting Graham, 490 U.S. at 396)) (internal quotation marks omitted). “This

standard focuses on ‘a reasonable officer on the scene, rather than with the 20/20 vision

of hindsight.” /d. (quoting Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015)

(quoting Graham, 490 U.S. at 396)). “The reasonableness determination must include

consideration of the fact that law enforcement officers often are forced to make quick

decisions under stressful and rapidly evolving circumstances, which may render the

calculation of what amount of force is reasonable difficult.” /d. (citing Graham, 490 U.S.

at 396-97).

On the other hand, “[njot every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers . . . violates the Fourth Amendment.”

" Figuereo, 2025 WL 460784, at *8 (quoting Graham, 490 U.S. at 396) (internal citation

omitted). “The Supreme Court’s ‘Fourth Amendment jurisprudence has long recognized

that the right to make an arrest or investigatory stop necessarily carries with it the right to

use some degree of physical coercion or threat thereof to effect it.”” /d. (quoting Graham,

490 U.S. at 396). “The police are not required to utilize the least amount of force possible

to place someone into custody.” /d. (quoting Brennan v. City of Middletown, No. 18 Civ.

6148 (PED), 2020 WL 3820195, at *7 (S.D.N.Y. July 8, 2020)).

Here, as noted, plaintiff asserts that on April 5, 2025, before he was arrested,

Spellman shot him in the chest with taser gun, causing a fractured sternum, nerve

damage, and scarring to both of his hands. See Dkt. No. 1 at 4. Plaintiff alleges that he

"| did not threaten Spellman, did not “have a weapon in his hand,” and was not subsequently

charged with resisting arrest after being tased. /d. Plaintiff also alleges that Jane Doe

tased him a second time while he was in a police car. See id. at 6. Plaintiff further states

that the C.O.s at the Oneida County CF informed him that he “was being very

uncooperative when being brought to the jail.” /d. Based on the facts alleged in plaintiff's

complaint and considering them in the light most favorable to plaintiff, as the Court must,

_,| force was used to arrest plaintiff, resulting in injury. See id. at 4, 6. Reading plaintiff's

complaint liberally, there is no indication that any use of force was necessary to subdue

plaintiff either when he answered the door to the apartment or while in custody in the

police car. See id. at 4, 6. Accordingly, the undersigned recommends that plaintiff's

Fourth Amendment excessive force claims against Spellman and Jane Doe in their

individual capacities’ survive Section 1915 review. See Burrell, 2024 WL 4957174, at

7 Should the District Judge adopt the undersigned’s Report-Recommendation & Order, plaintiff

is advised that the United States Marshals cannot effect service on a “John or Jane Doe”

defendant. In the event that [plaintiff] wishes to pursue this claim against [Jane Doe], he

shall take reasonable steps to ascertain [her] identit[y] through discovery or otherwise.

[Plaintiff] may then file a motion to amend his pleadings and seek leave of the Court to add

such individuals, by name, as defendants to this lawsuit. [Plaintiff] is further advised that if

these individuals are not timely served, this action will be dismissed as against them.

Depaima v. New York, No. 1:14-CV-0058 (LEK/CFH), 2014 WL 1340018, at *4 (N.D.N.Y. Apr. 3, 2014).

8 The undersigned makes no conclusion as to whether such claim could survive a properly-filed and

supported dispositive motion.

*7 (quoting Graham, 490 U.S. at 397); Pulliam v. Lilly, No. 07-CV-1243 (SJF)(AKT), 2010

WL 935383, at *4 (E.D.N.Y. Mar. 11, 2010) (“[T]he record is devoid of any evidence

reflecting a reason for the use of any force . . . i.e., that plaintiff was acting aggressively

or otherwise posed a threat... Accordingly, the use of more than de minimis force, if

even that, under the circumstances presented here, would not be objectively

reasonable.”); Yang Feng Zhao v. City of New York, 656 F. Supp. 2d 375, 391 (S.D.NLY.

2009) (holding that where “the record reflects no reason for any use of force . . . In such

circumstances any force is potentially illegitimate.”).

b. Fourteenth Amendment: Failure to Protect

As stated above, plaintiff alleges that on May 13, 2025, another inmate at the

Oneida County CF assaulted him. See Dkt. No. 1 at 5. As plaintiff was a pretrial detainee

the time of the alleged assault, his failure to protect claim is analyzed under the Due

Process Clause of the Fourteenth Amendment. See Darnell v. Pineiro, 849 F.3d 17, 35

(2d Cir. 2017). “The Due Process Clause of the Fourteenth Amendment protects pre-trial

detainees . . . against intolerable prison conditions.”. Damon v. New York, No. 8:23-CV-

74 (GLS/CFH), 2023 WL 11965130, at *14 (N.D.N.Y. Mar. 28, 2023), report and

recommendation adopted, No. 8:23-CV-74 (GLS/CFH), 2023 WL 11965128 (N.D.N.Y.

m| Apr. 24, 2023) (quoting Dzwonczyk v. Syracuse City Police Dep't, 710 F. Supp. 2d 248,

267 (N.D.N.Y. 2008). “The failure to protect a pre-trial detainee from harm is one type of

intolerable prison condition.” /d. (quoting Dzwonczyk, 710 F. Supp. 2d at 267). “Prison

officials have a duty to take reasonable measures to protect an inmate from violence by

other inmates; failure to do so may constitute a constitutional violation.” Rodriguez v.

Goins, No. 9:18-CV-1380 (TJM/DJS), 2020 WL 6150984, at *4 (N.D.N.Y. Aug. 17, 2020),

10

report and recommendation adopted, No. 9:18-CV-1380, 2020 WL 6146597 (N.D.N.Y.

Oct. 20, 2020) (quoting Baker v. Tarascio, No. 3:05-CV-0548 (RNC), 2009 WL 581608, at

*2 (D. Conn. Mar. 6, 2009)) (internal quotation marks omitted); Little v. Cnty. of Nassau,

708 F. Supp. 3d 252, 263 (E.D.N.Y. 2023) (quoting Walker v. Schult, 717 F.3d 119, 128

(2d Cir. 2013) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994))) (“[P]rison officials

a duty to protect prisoners from violence at the hands of other prisoners.”).

“However, ‘[nJot ... every injury suffered by one prisoner at the hands of another

. translates into constitutional liability for prison officials responsible for the victim’s

safety.” Rodriguez, 2020 WL 6150984, at *4 (quoting Zimmerman v. Macomber, No. 95

CIV. 0882 (DAB), 2001 WL 946383, at *6 (S.D.N.Y. Aug. 21, 2001) (quoting Farmer, 511

U.S. at 834)). “Rather, an official must act with ‘deliberate indifference to a substantial

risk of serious harm to an inmate.” Little, 708 F. Supp. 3d at 263 (quoting Farmer, 511

U.S. at 828).

A plaintiff must make two showings to prove a deliberate-indifference claim

under the Fourteenth Amendment, including when invoking a theory of

failure to protect against (i.e., prevent) an inmate attack. The first is “an

‘objective prong’ showing that the challenged conditions were sufficiently

serious to constitute objective deprivations of the right to due process.” The

second is “a ‘subjective prong’ . . . showing that the officer acted with at

least deliberate indifference to the challenged conditions.”

m| Little, 708 F. Supp. 3d at 263 (quoting Darnell, 849 F.3d at 29); LaPietra v. Mika, No. 9:19-

CV-1527 (TJM/TWD), 2021 WL 7367089, at *4 (N.D.N.Y. Nov. 9, 2021), report and

recommendation adopted, No. 9:19-CV-1527 (TJM/TWD), 2022 WL 325201 (N.D.N.Y.

Feb. 3, 2022) (citing Taylor v. City of New York, No. 16 Civ. 7857 (NRB), 2018 WL

1737626, at “12 (S.D.N.Y. Mar. 27, 2018) (“Although Darnel/ involved a Fourteenth

Amendment challenge to a prisoner's conditions of confinement, its holding applies with

equal measure to failure to protect claims.”)).

i. Objective Prong

To establish the objective prong, a plaintiff “must show that the conditions, either

alone or in combination, pose[d] an unreasonable risk of serious damage to [the plaintiff's]

“| health.” Little, 708 F. Supp. 3d at 263 (quoting Darnell, 849 F.3d at 30 (quoting Walker v.

Schult, 717 F.3d 119, 125 (2d Cir. 2013)). “In other words, the conditions must pose a

‘substantial risk of serious harm.” /d. (quoting Lewis v. Siwicki, 944 F.3d 427, 431 (2d Cir.

2019)); Stennett v. New York State, No. 25-CV-2967 (LTS), 2025 WL 2452210, at *2

(S.D.N.Y. Aug. 26, 2025) (quoting Heisler v. Kralik, 981 F. Supp. 830, 837 (S.D.N.Y. 1997))

(“In assessing whether the risk of . . . violence . . . is ‘sufficiently serious’ to trigger

constitutional protection, the focus of inquiry must be, not the extent of the physical

injuries sustained in an attack, but rather the existence of a ‘substantial risk of serious

harm.’””). “There is no ‘static test’ to determine whether a deprivation is sufficiently serious;

instead, ‘the conditions themselves must be evaluated in light of contemporary standards

of decency.” /d. (quoting Darnell, 849 F.3d at 30) (quoting Blissett v. Coughlin, 66 F.3d

531, 537 (2d Cir. 1995))); Walker, 717 F.3d at 125 (quoting Jabbar v. Fischer, 683 F.3d

m| 04, 57 (2d Cir. 2012)).

“In cases brought under a failure to protect theory, ‘it does not matter . . . whether

a prisoner faces an excessive risk of attack for reasons personal to him or because all

prisoners in his situation face such a risk.” Little, 708 F. Supp. 3d at 263-64 (quoting

Farmer, 511 U.S. at 843). “Thus, a plaintiff may satisfy the objective element by showing

either a substantial risk of harm from a specific assailant or a more general risk of harm

12

due to the conditions at the time of the attack.” /d. at 264 (quoting Ataroua v. Tamir, No.

22-CV-10371 (LTS), 2023 WL 2216139, at *3 (S.D.N.Y. Feb. 22, 2023) (quoting Hurst v.

Perez, No. 15-CV-4703 (VB), 2017 WL 187532, at *2 (S.D.N.Y. Jan. 13, 2017))) (internal

quotation marks omitted).

“[R]elying on a general risk of harm requires a showing ‘of a history of prior inmate-

on-inmate attacks similar to the one suffered by the plaintiff and that the measures th[at]

should have taken in response to such prior attacks would have prevented the attack on

the plaintiff.” Murray v. Cnty. of Aloany, No. 9:22-CV-592 (MAD/PJE), 2025 WL 904515,

at *7 (N.D.N.Y. Mar. 25, 2025) (quoting Little, 708 F. Supp. 3d at 266 (quoting Parris v.

N.Y. State Dep't Corr. Servs., 947 F. Supp. 2d 354, 363 (S.D.N.Y. 2013)); Mehne v.

Rochester Psychiatric Ctr., No. 22-CV-6110 (CJS), 2022 WL 17488633, at *7 (W.D.NLY.

_,| Dec. 7, 2022) (quoting Vazquez v. City of New York, No. 1:21-CV-1573 (PAE)(VF), 2022

WL 2704763, at *10-11 (S.D.N.Y. June 17, 2022), report and recommendation adopted,

No. 21-ClV-1573 (PAE)(VF), 2022 WL 2704469 (S.D.N.Y. July 11, 2022) (noting that

Fourteenth Amendment deliberate indifference claims based on a failure to protect

against a general risk of harm to all inmates require a plaintiff to “allege that the

defendants knew, or should have known, of a history of prior . . . attacks similar to the one

mi| SUffered by the plaintiff, and that the measures they should have taken in response to

such prior attacks would have prevented . . . or mitigated the risk of harm.”) (internal

citations omitted).

Even affording plaintiff due solicitude and liberally construing his complaint, plaintiff

has failed to sufficiently plead that on May 13, 2025, he faced “a substantial risk of harm

from a specific assailant or a more general risk of harm due to the conditions at the time

13

of the attack.” Little, 708 F. Supp. 3d at 264 (quoting Ataroua, 2023 WL 2216139, at *3)

(quoting Hurst, 2017 WL 187532, at *2)). As discussed above, plaintiff's complaint alleges

that he was attacked by another inmate whose name he was “not sure of’ as he left the

gym. Dkt. No 1. at 5. Plaintiff's complaint also attaches a copy of a May 13, 2025, incident

report, documenting that, immediately prior to the assault, he was in an argument with

Robles and another inmate attempted to separate the two. See id. at 10.

Here, plaintiff has not alleged that he faced “a substantial risk of harm from a

specific assailant” or Robles. Little, 708 F. Supp. 3d at 264 (quoting Ataroua, 2023 WL

2216139, at *3) (quoting Hurst, 2017 WL 187532, at *2)). Plaintiff does not allege that he

had any interactions with Robles or that he was previously threatened or attacked by

Robles prior to May 13, 2025. See generally Dkt. No. 1. Similarly, plaintiff does not allege

_,| that he had any interactions with, or was otherwise threatened or attacked by, any other

inmate prior to May 13, 2025. See id. Although May 13, 2025, incident report, states that

plaintiff had an argument with Robles immediately prior to the assault, the handwritten

portion of plaintiff's complaint does not provide any additional detail or context of the

events immediately prior to the attack. See Dkt. No. 1 at 10; see generally Dkt. No. 1.

Plaintiff does not make any allegations regarding the argument with Robles. See

m| generally Dkt. No. 1. Similarly, plaintiff does not allege that he feared any threat of

violence from Robles or any other inmate before or after the argument. See jd.

Instead, the handwritten portion of plaintiff's complaint focuses on Corcoran’s

purported failure to secure the broom in the supply closet behind the C.O.’s desk. See

Dkt. No. 1 at 5. Affording plaintiff due solicitude, plaintiff could potentially be alleging that

the unsecured broom, by itself, created a general risk of harm in the area of the Oneida

14

County CF that the March 13, 2025, attack occurred. Yet, plaintiff does not connect the

failure to secure the broom to any increased threat that he was going to be attacked. See

generally Dkt. No. 1. Plaintiff does not state that he was aware of the unsecured broom

prior to being attacked or that as a result of the broom being unsecured, he had a greater

fear for his safety. Rather, plaintiff states that the broom was supposed to be secured in

the supply closet and the supply closet was to be “locked at all times.” Dkt. No. 1 at 5.

Further, plaintiff does not allege that the Oneida County CF had a “history of prior inmate-

on-inmate attacks similar to the one suffered by the plaintiff or that the Oneida County

CF failed to take any corrective measures in response to such attacks. Murray, 2025 WL

904515, at *7 (quoting Little, 708 F. Supp. 3d at 266 (quoting Parris, 947 F. Supp. 2d at

363).

Based on the foregoing, the undersigned concludes that plaintiff fails to satisfy the

objective prong. Little, 708 F. Supp. 3d at 263; Rodriguez, 2020 WL 6150984, at *4

(quoting Velez v. City of New York, No. 1:17-CV-9871 (GHW), 2019 WL 3495642, at *4

(S.D.N.Y. Aug. 1, 2019)) (“In order for a corrections officer to be held liable for failing to

protect an inmate from another inmate, the corrections officer must have been aware of

a ‘clear and specific threat’ of harm to that inmate.”); Cf. Rivers v. Dep’t of Corr. NYC, No.

m| 24-CV-0120 (LTS), 2024 WL 1621417, at *3 (S.D.N.Y. Apr. 15, 2024) (“[Plaintiff] does not

allege facts suggesting that he has a specific reason to fear an assault (either from a

particular individual or because of a specific reason making him a target); [or] that he has

notified anyone at the facility of a specific risk of harm.”).

ii. Subjective Prong

To establish the necessary subjective showing under the Fourteenth

Amendment, i.e. show deliberate indifference, Plaintiff must prove that a

15

given Individual Defendant “recklessly failed to act with reasonable care to

mitigate the risk that the condition posed to [the plaintiff] even though the

defendant-official knew, or should have known, that the condition posed an

excessive risk to health or safety.”

Little, 708 F. Supp. 3d at 267 (quoting Darnell, 849 F.3d at 35). “Though called the

‘subjective prong,’ this determination ‘is defined objectively’ and ‘can be violated when an

official does not have subjective awareness that the official’s acts (or omissions) have

subjected the pretrial detainee to a substantial risk of harm.” /d. (quoting Darnell, 849

F.3d at 35).

The undersigned concludes that plaintiff has not established that Corcoran acted

recklessly or subjected him to a substantial risk of harm. Little, 708 F. Supp. 3d at 267

(quoting Darnell, 849 F.3d at 35). Plaintiff's complaint does not suggest that Corcoran

knew or should have known that plaintiff and Robles were going to have a physical

altercation or that Robles was going to hit plaintiff with a broom. See id.; see also Dkt.

No. 1 at 5. Plaintiff does not state that he had any prior interactions with Robles or that

he informed the Oneida County CF that Robles previously threatened his safety. See

generally Dkt. No. 1. Instead, plaintiff conclusorily asserts that Corcoran should have

known that the broom was not secured in the supply closet located behind the C.O.s’

desk. See Dkt. No. 1 at 5. Yet, plaintiff does not provide any additional information or

" factual support for this allegation. Plaintiff alleges that immediately prior to or at the time

of the attack, Corcoran was “relieving another C.O. on their break.” /d. Plaintiff does not

state how long Corcoran had been stationed in that area of the prison prior to the attack

or whether Corcoran could have been aware that the broom used to attack him was left

unsecured prior to the attack.

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As written, plaintiff's complaint does not suggest that Corcoran was anything more

than negligent in being unaware that the broom was left unsecured, and negligence does

not suffice to establish deliberate indifference. See Rodriguez, 2020 WL 6150984, at *4

(“It is possible that Defendant's handling of the situation was negligent, but it does not

establish deliberate indifference, exhibited by the type of intentional or reckless conduct

required under Darnell.”); Reed v. Does 1-6, No. 3:24-CV-1359 (KAD), 2024 WL 4872150,

at *3 (D. Conn. Nov. 22, 2024) (“Plaintiff's allegations provide no suggestion that Doe 1

had any awareness that Plaintiff would or could be subjected to assault from another

inmate when he left him in the corridor. Doe 1 may have acted negligently, but negligent

conduct does not support a deliberate indifference claim of constitutional dimension.”).

Further, the May 13, 2025, incident report states that as soon as the fight began,

_,| Corcoran radioed in “Code 2 Pod 4’ and ordered the unit to secure to their cells.” Dkt.

No. 1 at 10. “[P]laintiff has also not included facts suggesting that [Corcoran,] who

observed the incident[,] failed to act promptly to mitigate additional harm or otherwise

behaved inappropriately.” Stennett, 2025 WL 2452210, at *2. “Even if the [undersigned]

assumes that Plaintiff faced an objectively serious risk of harm, there are no allegations

in the complaint suggesting that [Corcoran] failed to act with reasonable care to mitigate

m| the risk to him.” /d. Therefore, the undersigned concludes that plaintiff fails to satisfy the

subjective prong. See Little, 708 F. Supp. 3d at 267 (quoting Darnell, 849 F.3d at 35).

Accordingly, as plaintiff has failed to establish the objective or subjective prongs,

plaintiff has not sufficiently alleged a Fourteenth Amendment failure to protect claim

against Corcoran. See Little, 708 F. Supp. 3d at 263 (quoting Darnell, 849 F.3d at 29).

However, although unlikely based on the current complaint, in light of special splicitude

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and because it is potentially possible that plaintiff could plead additional facts to satisfy

both the objective and subjective prongs, the undersigned recommends dismissing

plaintiffs Fourteenth Amendment failure to protect claim against Corcoran without

prejudice and with leave to amend.

c. Fourteenth Amendment: Deliberate Medical Indifference

“To state a claim for deliberate indifference, a pretrial detainee must satisfy a two-

pronged test.” Oteri v. Palmatier, No. 9:23-CV-986 (AMN/ML), 2024 WL 808774, at *5

(N.D.N.Y. Feb. 27, 2024). “First, the alleged deprivation of adequate medical care must

be sufficiently serious.” /d. (quoting Lloyd v. City of New York, 246 F.Supp.3d 704, 717

(S.D.N.Y. 2017) (quoting Spavone v. N.Y. State Dep't of Corr. Servs., 719 F.3d 127, 138

(2d Cir. 2013))) (internal quotation marks omitted). “Second, the defendant must act with

_,|a ‘sufficiently culpable state of mind.” /d. (quoting Hathaway v. Coughlin, 99 F.3d 550,

553 (2d Cir. 1996)).

The first prong is objective and “requires that the alleged deprivation of medical

treatment is, in objective terms, sufficiently serious — that is, the prisoner must prove that

his medical need was ‘a condition of urgency, one that may produce death, degeneration,

or extreme pain.” Oferi, 2024 WL 808774, at *5 (quoting Johnson v. Wright, 412 F.3d

398, 403 (2d Cir. 2005) (quoting Hemmings v. Gorezyk, 134 F.3d 104, 108 (2d Cir. 1998))).

The second prong is a subjective prong, under which “a pretrial detainee alleging

deliberate indifference to serious medical needs under the Fourteenth Amendment must

establish . . . that the defendant either: ‘acted intentionally to impose the alleged condition’

or ‘recklessly failed to act with reasonable care to mitigate the risk that the condition posed

to the pretrial detainee.” /d. (quoting Logan v. City of Schenectady, No. 18-CV-1179

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(BKS/CFH), 2019 WL 3803631, at *4 (N.D.N.Y. Aug. 13, 2019) (quoting Darnell v. Pineiro,

849 F.3d 17, 35 (2d Cir. 2017))); Spiezio v. Martinez, 653 F. Supp. 3d 8, 26 (N.D.N.Y.

2023) (noting that a pretrial detainee must demonstrate a defendant acted with more than

negligence).

Here, plaintiff's complaint alleges that upon arriving at the Oneida County CF, he

"| was (1) “neglected [of] any medical attention and pain medicine”, (2) “put down for X-rays

and to see medical for nerve damage”, and (3) “put on Charlie Block for orientation (5

days).” Dkt. No. 1 at 7. Plaintiff further alleges that when he finally did receive medical

care at the Oneida County CF, the “medical attention [he received] was very very poor.”

ld. Affording plaintiff due solicitude, the undersigned concludes that plaintiff's allegation

of suffering from nerve damage satisfies the objective prong as a condition that may

_,| produce “extreme pain.” Oteri, 2024 WL 808774, at *5 (quoting Johnson, 412 F.3d at 403

(quoting Hemmings, 134 F.3d at 108)). Conversely, the undersigned concludes that

plaintiff fails to satisfy the subjective prong because plaintiff's complaint “does not

plausibly suggest that any named defendant was personally involved in plaintiff's medical

treatment or decisions related to plaintiff's medical care.” /d. (quoting Logan, 2019 WL

3803631, at *4 (quoting Darnell, 849 F.3d at 35)). The only named defendant who worked

m| at the Oneida County CF is Corcoran, and all of plaintiff's allegations against Corcoran

involve the May 13, 2025, assault. See generally Dkt. No. 1. Plaintiff's complaint does

not establish any connection between Corcoran and plaintiff's medical care, or lack

thereof, at the Oneida County CF. Plaintiff's complaint “is devoid of any allegations . . .

that [Corcoran] had knowledge of plaintiff's medical care or that plaintiff requested medical

attention from [Corcoran], or that [Corcoran] denied such requests.” Oteri, 2024 WL

19

808774, at *5. Plaintiff's complaint does not “attribute” his denial of medical care upon

arrival at the Oneida County CF to Corcoran. /d. “Moreover, even if he had, those

statements, without more, do[] not suggest that [Corcoran] acted intentionally with respect

to his condition or recklessly failed to act with reasonable care to mitigate the risks that

his condition posed.” /d. Therefore, the undersigned concludes that plaintiff has failed to

“| establish the second prong that a defendant acted with a “sufficiently culpable state of

mind.” Oteri, 2024 WL 808774, at “5 (quoting Hathaway, 99 F.3d at 553).

Accordingly, the undersigned recommends that plaintiff's Fourteenth Amendment

medical indifference claim be dismissed without prejudice and with leave to amend,

because it is possible that plaintiff can name an individual(s) responsible for his medical

care at the Oneida County CF and demonstrate that that individual(s) acted with a

_,| reckless or intentional state of mind. See Oteri, 2024 WL 808774, at *5; see also Pierrot

v. Hahn, No. 9:15-CV-1415 (DNH/CFH), 2017 WL 4221117, at *9 (N.D.N.Y. July 28, 2017),

report and recommendation adopted, No. 9:15-CV-1415 (DNH/CFH), 2017 WL 4221072

(N.D.N.Y. Sept. 21, 2017) (‘[T]o bring a claim for [deliberate] indifference to medical

needs, plaintiff must identify the medical staff against whom he seeks to bring the claim.”).

3. Official Capacity Claims

a. Monell

Plaintiff's complaint alleges that on April 5, 2025, Spellman and Jane Doe worked

for the Rome Police Department, and on May 13, 2025, Corcoran worked for the Oneida

County CF. See Dkt. No. 1 at 4-6. The Rome Police Department? and the Oneida County

° City of Rome, New York, “Police Department” https://romepd.com/ (last visited Apr. 21, 2026).

20

are both municipal entities. As such, to the extent that plaintiff seeks to proceed

against Spellman and Jane Doe in their official capacities as police officers with the Rome

Police Department, and as against Corcoran in his official capacity as a C.O. with the

Oneida County CF, plaintiff can only proceed with section 1983 claims pursuant to Monell.

“Municipalities may be sued directly under [Section] 1983” pursuant to Monell v.

Department of Social Services, 436 U.S. 658 (1978) “for constitutional deprivations

inflicted upon private individuals pursuant to governmental custom, policy, ordinance,

regulation, or decision.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (citing

Monell, 436 U.S. at 690-91). “To set forth a cognizable claim for municipal liability under

§ 1983, a plaintiff must plead that a deprivation of his constitutional rights was ‘caused by

a governmental custom, policy, or usage of the municipality.” Dougal v. Lewicki, No. 1:23-

CV-1167 (DNH/CFH), 2023 WL 6430586, at *10 (N.D.N.Y. Oct. 3, 2023), report and

recommendation adopted, 2023 WL 7013384 (N.D.N.Y. Oct. 25, 2023) (quoting Jones v.

Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell, 436 U.S. at 690-91)).

“Municipalities may only be held liable when the municipality itself deprives an individual

of a constitutional right; it ‘may not be held liable on a theory of respondeat superior.” /d.

(quoting Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000)). An “official policy or custom”

be pleaded as follows:

(1) a formal policy officially endorsed by the municipality; (2) actions taken

by government officials responsible for establishing municipal policies

related to the particular deprivation in question; (3) a practice so consistent

and widespread that it constitutes a ‘custom or usage’ sufficient to impute

constructive knowledge of the practice to policymaking officials; or (4) a

failure by policymakers to train or supervise subordinates to such an extent

that it amounts to ‘deliberate indifference’ to the rights of those who come

in contact with the municipal employees.

10 Oneida County Sheriff's Office, Oriskany, New York, “Corrections”

https://sheriff.oneidacountyny.gov/divisions/corrections/ (last visited Apr. 21, 2026).

21

Id. (quoting Dorsett-Felicelli, Inc. v. Cty. of Clinton, 371 F. Supp. 2d 183, 194 (N.D.N.Y.

2005)) (internal citations omitted); see also Santos v. New York City, 847 F. Supp. 2d 573,

576 (S.D.N.Y. 2012) (explaining that, to state an official policy claim under Monell, the

plaintiff “must do more than simply state that a municipal policy . . . exists”); Coleman v.

Cnty. of Suffolk, 685 F. App’x 69, 72 (2d Cir. 2017) (summary order) (“Where . . . the

conduct of individual defendant officers does not violate the plaintiffs constitutional rights,

the municipality is generally not liable for a policy or practice pursuant to which the

conduct was performed.”); Fleming v. City of New York, No. 18-CV-4866 (GBD/JW), 2023

WL 1861223, at *1 (S.D.N.Y. Feb. 9, 2023) (noting that, in some situations, a municipality

may be held liable under Monell even if a plaintiff is unable to establish liability against

individual defendants).

Under Monell, the proper defendant is the municipality itself, and a claim may only

proceed against a municipality within the limited confines of Monell. See Batista, 702

F.2d at 397 (citing Monell, 436 U.S. at 690-91). Here, plaintiff has not pled that his

constitutional rights were violated due to an official City of Rome or Oneida County policy,

a persistent and widespread custom or practice, failure to train or supervise, or because

a policy-making official’s deliberate conduct deprived him of a constitutional right. See

" Dougal, 2023 WL 6430586, at *10 (quoting Dorsett-Felicelli, Inc., 371 F. Supp. 2d at 194);

see also Lucente v. Cnty. of Suffolk, 980 F.3d 284, 297-98 (2d Cir. 2020). Instead, he

summarily concludes that his rights were violated because Spellman and Jane Doe tased

him, and Corcoran failed to protect him from a fellow inmate at the Oneida County CF.

See Dkt. No. 1 at 4-7. However, as discussed above, “a municipality may not be held

liable under 1983 ‘solely because it employs a tortfeasor.” Mulqueen v. Herkimer Cnty.

22

Child Protective Servs., No. 6:22-CV1-301 (TJM/ATB), 2023 WL 4931679, at *6 (N.D.N.Y.

Aug. 2, 2023), report and recommendation adopted, No. 6:22-CV-1301 (BKS/MJK), 2024

WL 756833 (N.D.N.Y. Feb. 23, 2024) (citing Cowan v. City of Mt. Vernon, 95 F. Supp. 3d

624, 636 (S.D.N.Y. 2015) (quoting Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403

(1997)); Dougal, 2023 WL 6430586, at *10 (quoting Jeffes, 208 F.3d at 56). Plaintiff does

“| not connect Spellman or Jane Doe’s conduct to the City of Rome or Corcoran’s conduct

to Oneida County. See generally Dkt. No. 1.

Therefore, it is further recommended that to the extent plaintiff intends to

raisesclaims against Spellman, Jane Doe, and Corcoran in their official capacities, such

claims be dismissed for failure to plead a Monell claim. See Batista, 702 F.2d at 397

(citing Monell, 436 U.S. at 690-91); Dougal, 2023 WL 6430586, at *10 (quoting Dorsett-

_,| Felicelli, Inc., 371 F. Supp. 2d at 194). Accordingly, in light of special solicitude, as it is

possible that plaintiff may potentially be able to amend his complaint to plead that his

constitutional rights were violated due to an official City of Rome or Oneida County policy,

persistent and widespread custom or practice, a failure to train or supervise, or because

a policy-making official’s deliberate conduct deprived him of constitutional rights, the

undersigned recommends that plaintiff's claims against Spellman, Jane Doe, and

Corcoran in their official capacities, to the extent they are raised, be dismissed without

prejudice and with leave to amend.

IV. Leave to Amend

Generally, “[a] pro se complaint should not be dismissed without the Court granting

leave to amend at least once when a liberal reading of the complaint gives any indication

that a valid claim might be stated.” Romano v. Lisson, 711 F. App'x 17, 19 (2d Cir. 2017)

23

(summary order) (quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quotation

omitted)). “However, if the problems with a complaint are ‘substantive’ rather than the

result of an ‘inadequately or inartfully pleaded’ complaint, an opportunity to re-plead would

be ‘futile’ and ‘should be denied.” Edwards v. Penix, 388 F. Supp. 3d 135, 144-45

(N.D.N.Y. 2019) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).

Here, the defects in plaintiff's (1) claims against all defendants in their official

capacities; (2) Fourteenth Amendment failure to protect claim against Corcoran in his

individual capacity; and (3) Fourteenth Amendment medical indifference claim can

potentially be cured by a better pleading. Accordingly, it is recommended that insofar as

plaintiff seeks to (1) proceed against all defendants in their official capacities, (2) proceed

against Corcoran in his individual capacity for violating his Fourteenth Amendment rights,

(3) otherwise raise a claim seeking Fourteenth Amendment medical indifference,

such claims be dismissed without prejudice and with leave to amend.'' It is also

recommended that plaintiff's Fourth Amendment excessive force claim against Spellman

and Jane Doe in their individual capacities survive Section 1915 review.

IV. Conclusion

WHEREFORE, for the reasons set forth herein, it is hereby

tri ORDERED, that plaintiff's application to proceed in forma pauperis (Dkt. Nos. 2, 6)

is GRANTED; and it is

the event the District Judge adopts the undersigned’s Report-Recommendation & Order and plaintiff is

permitted to file an amended complaint, plaintiff is advised that any amended pleading cannot incorporate

a prior pleading by reference and may not attempt to replead claims that have already been dismissed by

this Court with prejudice. Any amended pleading supersedes and replaces a prior pleading in its entirety.

An amended pleading must establish this Court's jurisdiction and state a claim for relief against each named

defendant for whom leave to replead was granted according to Rules 8 and 10 of the Federal Rules of Civil

Procedure.

24

RECOMMENDED, that insofar as plaintiff seeks to proceed against all defendants

in their official capacities for monetary damages (Dkt. No. 1), such claims be DISMISSED

without prejudice and with opportunity to amend as specified herein; and it is further

RECOMMENDED, that plaintiff's Fourteenth Amendment failure to protect claim

against Corcoran in his individual capacity (Dkt. No. 1), be DISMISSED without

prejudice and with opportunity to amend; and is further

RECOMMENDED, that plaintiff's Fourteenth Amendment medical indifference

claim (Dkt. No. 1), be DISMISSED without prejudice and with opportunity to amend;

and is further

RECOMMENDED, that plaintiff's Fourth Amendment excessive force claim against

Spellman and Jane Doe in their individual capacities survive Section 1915 review; '* and

_it is further

RECOMMENDED, that if the District Judge adopts this Report-Recommendation

& Order, plaintiff be given thirty (30) days from the date of the Order adopting this Report-

Recommendation and Order to file an amended complaint; and it is further

RECOMMENDED, that (a) if the District Judge adopts this Report-

Recommendation & Order and plaintiff is permitted to amend his complaint, upon filing of

the amended complaint — or upon the expiration of plaintiff's time to do so — the Clerk

shall return the case to the Magistrate Judge for further review; and (b) if plaintiff does not

so file an amended complaint (1) it will be deemed as an abandonment of any claims for

which leave to replead has been granted and will result in judgment being entered against

plaintiff on these claims without further order by the Court, and (2) service of the original

It is recommended that the complaint (as to this claim) not be served on defendants until after it is

determined whether plaintiff will be permitted to, and will seek, to amend as to his other claims.

25

complaint will be made for any claims that were permitted to proceed from the original

complaint, with all other claims deemed stricken; and it is

ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order

on plaintiff in accordance with Local Rules.

IT IS SO ORDERED.

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 (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. 6(a), 72.'5

Dated: May 4, 2026

Albany, New York

(Af

Paul J. Evangelista

U.S. Magistrate Judge

"3 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three

(3) additional days will be added to the fourteen-day (14) period, meaning that you have seventeen (17)

days from the date the Report-Recommendation and 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).

26