United States District Court, Western District of New York
April 18, 2000
ANDRE D. MUHAMMAD, 91A9944, ET AL., PLAINTIFFS,
IMAM WARITHU-DEEN UMAR, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Arcara, District Judge.
The above-referenced case was referred to Magistrate Judge
Carol E. Heckman pursuant to 28 U.S.C. § 636(b)(1)(B), on May 22,
1998. On March 21, 2000, Magistrate Judge Heckman filed a Report
and Recommendation, recommending that plaintiff's motion for
summary judgment should be denied and defendants' motion for
summary judgment should be granted.
The Court has carefully reviewed the Report and Recommendation,
the record in this case, and the pleadings and materials
submitted by the parties. No objections having been timely filed,
it is hereby
ORDERED, that pursuant to 28 U.S.C. § 636(b)(1), and for the
reasons set forth in Magistrate Judge Heckman's Report and
Recommendation, Plaintiffs' motion for summary judgment is denied
and defendants' motion for summary judgment is granted. The Clerk
of Court is hereby ordered to enter judgment in favor of
defendants and to take all steps necessary to close the case.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
This case was referred to the undersigned by the Hon. Richard
J. Arcara, to hear and report, in accordance with
28 U.S.C. § 636(b)(1)(B). All parties have moved for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure. For
the following reasons, plaintiffs' motion should be denied, and
defendants' motion should be granted.
The following facts are not disputed.*fn1 Plaintiffs commenced
this action on December 6, 1993. At the time, the plaintiffs were
inmates in the custody of the New York State Department of
Correctional Services ("DOCS"), and members of the Nation of
Islam ("NOI"). Defendant Warithu-Deen Umar is DOCS' Ministerial
Program Coordinator. Defendant Abdul Najeeuallah is a Muslin
Chaplin (or "Imam") employed by DOCS. Defendant J.L. Mowery is a
Rabbi employed by DOCS.
Plaintiffs seek injunctive relief and damages under
42 U.S.C. § 1983 based on alleged violations of their constitutional
rights to free exercise of their religious beliefs. Specifically,
in their Second Amended Complaint*fn2 plaintiffs claim that they
have been denied access to DOCS' kosher food program for
observance of NOI dietary laws, access to a classroom (or
"mosque") for Islamic classes, and inclusion of NOI materials in
prison radio and video religious programming. In the prayer for
relief, plaintiffs seek an order directing defendants to provide
these (and other) services, directing DOCS to hire an NOI member
(specifically, plaintiff Andre D. Muhammad) as and inmate clerk
to conduct NOI affairs, and awarding plaintiff Andre D. Muhammad
$250,000 in compensatory damages. See Second Amended Complaint,
Item 26, pp 8-9; see also Muhammad v. Coughlin, 1998 WL 950984
(W.D.N.Y. November 13, 1998).
On January 5, 1995, subsequent to the commencement of this
action, a Stipulation and Order was entered by Hon. Loretta A.
Preska, United States District Judge for the Southern District of
New York, in the case of Muhammad v. Coughlin, No. 91-CIV-6333
(S.D.N.Y. 1995) (attached as Ex. B to Item 63), settling a class
action suit brought by NOI inmates which addressed claims similar
to those brought by the plaintiffs in this case. The Stipulation
and Order identifies the class as "all persons who have been,
are, or will be incarcerated in a correctional facility
administered by the State of New York or its agencies or
instrumentalities, and who are or become members of the Nation of
Islam faith . . .," and provides that "[a]ll of the terms of
[the] Stipulation and Order, and all references to the
plaintiffs, shall apply to all members of the plaintiff class
unless otherwise stated" (id., ¶ 1(A)(c)).
On October 15, 1999, plaintiff Andre D. Muhammad moved for
summary judgment on the ground "that plaintiff and class will
succeed on the merits" (Item 57, Muhammad Affirmation, p. 2). On
December 28, 1999, defendants filed a cross-motion for summary
judgment (Item 60), based on the following grounds:
1. Plaintiffs' claims in this case are precluded by
the terms of Judge Preska's settlement order in the
Southern District litigation.
2. Failure to demonstrate a constitutional violation
based on DOCS' policy of denying NOI followers the
same kosher diet provided to Jewish inmates.
3. Lack of protected liberty interest in a particular
4. Lack of personal involvement by the remaining
defendants (Umar, Najeeuallah, and Mowery).
5. Qualified immunity.
Each of these grounds is discussed in turn below.
1. Preclusive Effect of Southern District Settlement.
Defendants contend that the stipulated settlement order signed
by Judge Preska in the Southern District class action Muhammad
v. Coughlin precludes plaintiffs' from relitigating the same
issues in this case. I agree. Class actions are predicated on the
notion that the interests of all class members are fully
represented through the class representatives and through class
counsel. It is as if each sues individually in a consolidated
action. All party-members, including absent members and future
members, are equally bound by
the strictures of the class action judgment. See, e.g., County
of Suffolk v. Long Island Lighting Co., 14 F. Supp.2d 260, 266
(E.D.N.Y. 1998); In re Joint Eastern & Southern Districts
Asbestos Litigation, 878 F. Supp. 473 (E.D.N.Y. 1995); In re
Agent Orange Product Liability Litigation, 597 F. Supp. 740
(E.D.N.Y. 1984); see also Hansberry v. Lee, 311 U.S. 32, 42, 61
S.Ct. 115, 85 L.Ed. 22 (1940) (judgment in class action is res
judicata as to members of the class who are not formal parties
to the suit).
As the Supreme Court has stated:
[U]nder elementary principles of prior adjudication a
judgment in a properly entertained class action is
binding on class members in any subsequent
litigation. Basic principles of res judicata (merger
and bar or claim preclusion) and collateral estoppel
(issue preclusion) apply. A judgment in favor of the
plaintiff class extinguishes their claim, which
merges into the judgment granting relief. A judgment
in favor of the defendant extinguishes the claim,
barring a subsequent action on that claim. A judgment
in favor of either side is conclusive in a subsequent
action between them on any issue actually litigated
and determined, if its determination was essential to
Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867
104 S.Ct. 2794, 81 L.Ed.2d 718 (1984) (citing Supreme Tribe of
Ben-Hur v. Cauble, 255 U.S. 356
, 41 S.Ct. 338, 65 L.Ed. 673
(1921); Restatement of Judgments § 86 (1942); Restatement
(Second) of Judgments § 41(1)(e) (1982); Fed.R.Civ.P. 23(c)(3);
Moore & Cohn, Federal Class Actions — Jurisdiction and Effect of
Judgments, 32 Ill.L.Rev. 555 (1938)). Therefore, to determine
the preclusive effect of Judge Preska's order in the Muhammad v.
Coughlin case on the claims asserted by plaintiffs here, the
court turns to an examination of the applicability of the
doctrines of res judicata and collateral estoppel.
a. Res Judicata.
Under the doctrine of res judicata, a final judgment on the
merits of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in that
action. Federated Dept. Stores Inc. v. Moitie, 452 U.S. 394,
398, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981); see also Prime
Management Co., Inc. v. Steinegger, 904 F.2d 811, 815 (2d Cir.
1990); Feuerman v. Sears, Roebuck and Co., 1996 WL 648966, at
*5 (S.D.N.Y. November 6, 1996). To establish that a claim is
barred by the doctrine of res judicata, a defendant must show
that (1) the court rendered a final judgment on the merits in the
prior case, (2) the prior suit involved the same parties or their
privies, and (3) the causes of action in the subsequent suit are
"integrally related" to the claims determined in the prior
action. Feuerman, supra; Carlin v. Gold Hawk Joint Venture,
778 F. Supp. 686, 691 (S.D.N.Y. 1991); G & T Terminal Packaging Co.
v. Consolidated Rail Corp., 719 F. Supp. 153, 157 (S.D.N Y
It is not disputed that the stipulated order of settlement in
the Southern District action constitutes a final judgment on the
merits. See, e.g., Cahill v. Arthur Andersen & Co., 659 F. Supp. 1115,
1120 (S.D.N.Y. 1986), aff'd, 822 F.2d 14 (2d Cir. 1987)
(decree of settlement constitutes judgment on the merits, and
will be given full res judicata effect in subsequent suit between
same parties on same causes of action as those compromised in
settlement). It is also undisputed that, as members of the
plaintiff class, the plaintiffs in this case were parties to the
Southern District action. Plaintiffs were in DOCS' custody prior
to January 5, 1995 (the date Judge Preska signed the settlement
order). There is no question that they each received adequate
notice of the Southern District class action (see Item 63, Ex.
B, ¶¶ F-I), or that they were fairly and adequately represented
by representative plaintiffs and counsel in that case (see id.,
¶ E(iv)). No evidence has been presented
to show or suggest that any of the plaintiffs in this case opted
out of the Southern District class, or voiced any objection to
the terms of the negotiated settlement.
Accordingly, the only question to be reached in order to
determine the res judicata effect of Judge Preska's order is
whether the claims in the prior and successive actions are
"integrally related." To make this determination, the court must
consider three factors: (1) whether the same transaction or
connected series of transactions is at issue, (2) whether the
same evidence is needed to support both claims, and (3) whether
the facts essential to the second action were presented in the
first. NLRB v. United Technologies Corp., 706 F.2d 1254, 1260
(2d Cir. 1983); G & T Terminal Packaging, supra, 719 F. Supp. at
The stipulated order of settlement entered in Muhammad v.
Coughlin explicitly addressed the following system-wide issues:
1. Books, publications and other materials which NOI
members need to possess in order to practice their
religion (Item 63, Ex. B, ¶¶ P(3) & P(4)).
2. Visits with spiritual advisors, including NOI
Ministers (id., ¶ P(5)).
3. Attendance of NOI Ministers at meetings or classes
up to once a week, and provision of facility space
for classes and meetings (id., ¶¶ P(6) & P(7)).
4. Hiring of additional NOI Ministers in accordance
with member population and other considerations
given to hiring religious leaders of similarly
situated groups (id., ¶¶ P(8) & P(9)).
5. Observance of December fast, "Saviors Day" and
"Founders Day" (id., ¶ P(10)).
6. Handling of grievances and disciplinary
proceedings relating to NOI members' practice of
religion in the prison system (id., ¶¶ P(11),
(12) & (14)).
In their "Prayer for Relief" in this case, plaintiffs seek
"permanent injunctive relief ordering defendants" to take the
following system-wide action:
1. Hiring three more NOI Ministers (Item 26, p. 9,
"Prayer for Relief" ¶ C(1)).
2. Allowing access to religious services by NOI
inmate student Ministers (id., ¶ C(2)).
3. Recognition of "Saviors Day" and "Founders Day"
(id., ¶¶ C(3) & C(6)).
4. Designating classroom space for viewing NOI videos
(id., ¶ C(4)).
5. Allowing NOI members to possess religious items
(id., ¶ C(5)).
Upon comparison, it is clear that the claims set forth at ¶¶
C(1) through C(6) of plaintiffs' "Prayer for Relief" in the
Second Amended Complaint were fully and fairly presented, and
finally adjudicated, in the Southern District class action. These
claims, seeking implementation of NOI religious programs on a
system-wide basis, all necessarily involve the same transactions,
the same evidence, and the same essential facts. Plaintiffs are
therefore bound by the stipulated settlement order in Muhammad
v. Coughlin, and are barred by principles of res judicata from
relitigating those same claims in this case.
b. Collateral Estoppel.
Collateral estoppel, or issue preclusion, bars the relitigation
of issues actually litigated and decided in the prior proceeding,
as long as that determination was essential to that judgment.
See Central Hudson Gas & Elec. Corp. v. Empresa Naviera Santa
S.A., 56 F.3d 359, 368 (2d Cir. 1995); Beck v. Levering,
947 F.2d 639, 642 (2d Cir. 1991) (per curiam), cert. denied sub nom.
Levy v. Martin, 504 U.S. 909, 112 S.Ct. 1937, 118 L.Ed.2d 544
(1992). Four elements must be met for collateral estoppel to
apply: (1) the issues of both
proceedings must be identical, (2) the relevant issues were
actually litigated and decided in the prior proceeding, (3) there
must have been "full and fair opportunity" for the litigation of
the issues in the prior proceeding, and (4) the issues were
necessary to support a valid and final judgment on the merits.
Central Hudson Gas & Electric, supra; see also Gelb v. Royal
Globe Ins. Co., 798 F.2d 38, 44 (2d Cir. 1986), cert. denied,
480 U.S. 948, 107 S.Ct. 1608, 94 L.Ed.2d 794 (1987).
Once again, comparison of the issues determined as a result of
the settlement order in the Southern District class action and
the claims set forth at ¶¶ C(1)(6) in plaintiffs' "Prayer for
Relief" in the Second Amended Complaint leads this court to
conclude that plaintiffs are barred by principles of collateral
estoppel from relitigating those claims in this case. The issues
in both proceedings are identical, the relevant issues were
actually litigated and decided in the prior proceeding, there was
a "full and fair opportunity" for the litigation of the issues in
the prior proceeding, and the issues were necessary to support a
valid and final judgment on the merits.
Accordingly, I find that the stipulated order of settlement
signed by Judge Preska in Muhammad v. Coughlin, No. 91-CIV-6333
(S.D.N.Y. January 5, 1995), should be given preclusive effect in
this case, barring plaintiffs' claims as set forth at ¶¶ C(1)-(6)
of plaintiffs' "Prayer for Relief" in the Second Amended
In addition to these precluded claims, plaintiffs also seek
access to DOCS' kosher diet (Item 23, p. 9, "Prayer for Relief" ¶
B), and hiring of an NOI member as an inmate clerk to conduct NOI
affairs (id., ¶ C(7)). Each of these claims are now addressed
2. Access to Kosher Diet.
Plaintiffs' claim for access to the kosher diet provided to
Jewish inmates must also be rejected. In order to establish that
a particular prison policy violates an inmate's constitutional
right to the free exercise of his or her religious beliefs, the
inmate must demonstrate that the state action substantially
burdened the exercise of religion. Jolly v. Coughlin,
76 F.3d 468, 475 (2d Cir. 1996); Boomer v. Irvin, 963 F. Supp. 227, 231
(W.D.N.Y. 1997); Abdul-Malik v. Goord, 1997 WL 83402, at *7
(S.D.N.Y. February 27, 1997). As stated by the Supreme Court:
Where the state conditions receipt of an important
benefit upon conduct proscribed by a religious faith,
or where it denies such a benefit because of conduct
mandated by religious belief, thereby putting
substantial pressure on an adherent to modify his
behavior and to violate his beliefs, a burden upon
Thomas v. Review Bd. of Indiana Employment Sec. Div.,
450 U.S. 707
, 717-18, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981), quoted in
Abdul-Malik v. Goord, supra; see also Jolly v. Coughlin, supra,
76 F.3d at 477. If the plaintiff establishes that the state has
substantially burdened the exercise of his of her religion, then
the state must justify its actions by showing that its
regulations, policies or practices are "reasonably related to
legitimate penological interests." Turner v. Safley,
482 U.S. 78
, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); O'Lone v. Estate
of Shabazz, 482 U.S. 342
, 353, 107 S.Ct. 2400, 96 L.Ed.2d 282
(1987); see also Salahuddin v. Coughlin, 993 F.2d 306
(2d Cir. 1993); Benjamin v. Coughlin, 905 F.2d 571
, 574 (2d
Cir.), cert. denied, 498 U.S. 951
, 111 S.Ct. 372
, 112 L.Ed.2d
335 (1990); Withrow v. Bartlett, 15 F. Supp.2d 292 (W.D.N Y
The dietary component of plaintiffs' claim against DOCS has
been considered and ultimately rejected in several cases within
the Second Circuit, including Allah v. Kelly, No.
96-CV-7323CJS(H) (W.D.N.Y. April 19, 1999) (Heckman, M.J., R & R
adopted January 27, 2000); Abdul-Malik v. Goord, supra, and
Green v. Coughlin, No. 88-CV-214 (N.D.N.Y. October
11, 1991). In Green v. Coughlin, the plaintiff claimed that
DOCS' failure to provide a "Halal" [meaning "allowed" or
"lawful," as opposed to "Haram," meaning "prohibited" or
"unlawful"] diet to Muslim inmates violated the First Amendment
and the equal protection clause. Applying the Turner/O'Lone
criteria, the court granted the defendants' summary judgment
motion, finding that DOCS' policy was "reasonably related to
legitimate penological interests in operating the facility
appropriately within budgetary constraints." Green v. Coughlin,
supra, slip op. at 4.
Abdul-Malik was a class action certified on behalf of "all
current and future general population inmates of DOCS' facilities
who seek to maintain a Halal diet." Abdul-Malik v. Goord,
supra, 1997 WL 83402, at *1. The plaintiff claimed that DOCS'
failure to provide Muslim inmates with Halal meat three to five
times a week was a violation of the Religious Freedom Restoration
Act ("RFRA," declared unconstitutional in City of Boerne v.
Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997)),
the First Amendment, and the Equal Protection Clause of the
Fourteenth Amendment. After a bench trial, the court found that
the plaintiff had failed to show that DOCS had substantially
burdened Muslim inmates' free exercise of religion because the
Religious Alternative Menu ("RAM") currently offered by DOCS to
the entire general population of the prison system statewide
meets the requirements of a Halal diet. Id., 1997 WL 83402, at
*6. As stated by the court in Abdul-Malik:
[T]he RAM menu provides a nutritionally adequate diet
for an inmate who eats from that menu exclusively. .
. . All that is required for a prison diet not to
burden an inmate's free exercise of religion is "the
provision of a diet sufficient to sustain the
prisoner in good health without violating [his
religion's] dietary laws." The RAM diet is sufficient
to sustain prisoners in good health and its
consumption does not require any violation of the
tenets of Islam.
Id. (quoting Kahane v. Carlson, 527 F.2d 492, 496 (2d Cir.
In Allah v. Kelly, this court was presented with the precise
issue raised by plaintiffs here — i.e., whether DOCS' policy of
refusing to allow NOI inmates to participate in the kosher food
program violated the NOI inmates' constitutional rights. The DOCS
employees sued in that case argued that the RAM program provides
a nutritionally adequate diet which does not impinge upon NOI
inmates' exercise of their religious beliefs. Upon comparison of
the foods offered in the RAM menu with the dietary requirements
described by Elijah Muhammad in "How to Eat to Live,"*fn3 the
court found that DOCS' accommodation of the plaintiff's religious
diet was reasonable and nutritionally adequate, and that the
plaintiff's exercise of his religion was not substantially
burdened. Allah v. Kelly, No. 96-CV-7323CJS(H), slip op. at 9.
The court also found that DOCS' adoption of the RAM diet was
reasonably related to legitimate penological interests, under the
Turner/O'Lone criteria. Id. at 9-12. Finally, the court
rejected the plaintiff's Eight Amendment, equal protection
and due process challenges to DOCS' refusal to accommodate his
request to participate in the kosher food program. Id. at
The analysis in Allah v. Kelly applies with equal force in
this case. Because the RAM diet does not substantially burden NOI
inmates' exercise of their religious beliefs, and because the
courts have repeatedly found that DOCS' RAM program is reasonably
related to legitimate penological interests, no rational juror
could find in favor of plaintiffs on their claim for access to
the kosher diet. Accordingly, summary judgment in favor of
defendants is appropriate.
3. Request for Inmate Clerk Job.
In ¶ C(7) of the Second Amended Complaint's "Prayer for
Relief," plaintiffs seek an order directing defendants "to hire
said member of [the] Nation of Islam as a[n] inmate clerk to
conduct N.O.I. affairs starting at pay grade three (Item 26, p.
9)." This claim must also be rejected.
It is well established that inmates in the DOCS system do not
have any constitutional, statutory, regulatory or precedential
right to a particular prison job. Gill v. Mooney, 824 F.2d 192,
194 (2d Cir. 1987) (citing Cooper v. Smith, 63 N.Y.2d 615, 616,
479 N.Y.S.2d 519, 468 N.E.2d 701 (1984)); see also Roberts v.
Truesdail, 1998 WL 178809, at *6 (N.D.N.Y. April 7, 1998);
Hodges v. Jones, 873 F. Supp. 737, 745 (N.D.N.Y. 1995).
Accordingly, no rational juror could find in favor of plaintiff
on this claim, and summary judgment in favor of defendants is
4. Lack of Personal Involvement.
Defendants also seek dismissal of plaintiffs' claims for
damages on the grounds that Imam Umar, Imam Najeeuallah and Rabbi
Mowery were not personally involved in any alleged violation of
plaintiffs' rights. As explained in this court's prior report and
recommendation, personal involvement of a defendant is a
prerequisite to any award of damages under 42 U.S.C. § 1983.
Muhammad v. Coughlin, supra, 1998 WL 950984, at *2 (citing
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Moffitt v.
Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991); Williams
v. Smith, 781 F.2d 319, 323 (2d Cir. 1986); McKinnon v.
Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied,
434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978)). Having found no
constitutional violation with respect to plaintiffs' claims for
access to the kosher food program and the inmate clerk job, and
having found that plaintiffs' remaining claims are precluded by
the settlement order in Muhammad v. Coughlin, No. 91-CIV-6333
(S.D.N.Y. January 5, 1995), defendants Umar, Najeeuallah and
Mowery cannot be found to be personally responsible for any
constitutional violation in this case. Accordingly, summary
judgment should be granted in their favor. See Rabb v. McMaher,
1998 WL 214425, at *7 (N.D.N.Y. April 24, 1998).
5. Qualified Immunity.
Finally, defendants seek summary judgment on the ground of
qualified immunity. Qualified immunity shields government
officials who perform discretionary functions from liability for
civil damages so long as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known. Harlow v. Fitzgerald,
457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Washington
Square Post No. 1212 v. Maduro, 907 F.2d 1288, 1290 (2d Cir.
1990). Even when the rights at issue are clearly established,
qualified immunity will protect a government official from civil
liability "if it was objectively reasonable for [the official] to
believe that his acts did not violate those rights." Robison v.
Via, 821 F.2d 913, 921 (2d Cir. 1987); Russell v. Coughlin,
910 F.2d 75, 78 (2d Cir. 1990); Gittens v. LeFevre,
891 F.2d 38, 42 (2d Cir. 1989). "The objective reasonableness test is met
— and the defendant is entitled to immunity — if
`officers of reasonable competence could disagree' on the
legality of the defendant's actions." Lennon v. Miller,
66 F.3d 416, 420 (2d Cir. 1995) (quoting Malley v. Briggs,
475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).
Thus, a defendant is entitled to summary judgment on qualified
immunity grounds when, "looking at the evidence in the light most
favorable to, and drawing all inferences most favorable to, the
plaintiffs," the court determines that no reasonable jury could
conclude that it was objectively unreasonable for the defendant
to believe that his or her conduct or actions did not violate an
established federally protected right. Halperin v. Kissinger,
807 F.2d 180, 189 (D.C.Cir. 1986), quoted in Robison, supra,
821 F.2d at 921; Lennon v. Miller, supra, 66 F.3d at 420. "In
other words, if any reasonable trier of fact could find that the
defendants' actions were objectively unreasonable, then the
defendants are not entitled to summary judgment." Lennon,
In this case, as the discussion above demonstrates, no
reasonable juror could conclude that it was objectively
unreasonable for defendants to believe that their implementation
of DOCS' policies with respect to plaintiffs' requests for access
to dietary, religious or employment programs violated any
established constitutional or statutory rights. Accordingly,
defendants are entitled to summary judgment on the ground of
For the foregoing reasons, defendants' motion for summary
judgment (Item 60) should be granted, and plaintiffs' motion
for summary judgment (Item 57) should be denied.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report and Recommendation be filed with
the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be
filed with the Clerk of this Court within ten (10) days after
receipt of a copy of this Report and Recommendation in accordance
with the above statute, Fed.R.Civ.P. 72(b) and Local Rule
The district court will ordinarily refuse to consider on de
novo review arguments, case law and/or evidentiary material
which could have been, but was not presented to the magistrate
judge in the first instance. See, e.g., Paterson-Leitch Co.,
Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985
(1st Cir. 1988).
Failure to file objections within the specified time or to
request an extension of such time waives the right to appeal the
District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct.
466, 88 L.Ed.2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et
al., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 72.3(a)(3) of
the Local Rules for the Western District of New York, "written
objections shall specifically identify the portions of the
proposed findings and recommendations to which objection is made
and the basis for such objection and shall be supported by legal
authority." Failure to comply with the provisions of Rule
72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2)
(concerning objections to a Magistrate Judge's Decision and
Order), may result in the District Court's refusal to consider
March 21, 2000.