United States District Court, Southern District of New York
September 4, 2003
STEVEN GIBBS, PLAINTIFF,
GLENN S. GOORD, ET AL., DEFENDANTS
The opinion of the court was delivered by: Gabriel Gorenstein, Magistrate Judge
To the Hon. Richard M. Berman
United States District Judge
Steven Gibbs, currently incarcerated at the Attica Correctional Facility, brings this action pro se pursuant to 42 U.S.C. § 1983 alleging deliberate indifference to his medical needs and failure to protect in violation of the Eighth Amendment while he was an inmate at Green Haven Correctional Facility ("Green Haven"). The suit names as defendants Glenn S. Goord, Commissioner of the New York State Department of Correctional Services; Charles Greiner, Superintendent of Green Haven; "Thacker," Deputy Superintendent of Security; "Dashawetz," a nurse practitioner; Captain Totten; Sergeant Centanni; and Correctional Officers Huttle and Sarles (collectively "defendants"). Before the Court is defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons stated below, the motion should be granted.
Gibbs alleges that he was the victim of repeated sexual assaults and molestations while he was asleep or unconscious in his cell at Green Haven. See generally Complaint, filed June 14, Page 2 2002 ("Complaint").*fn1 In particular, he alleges that he was molested at some point during the early morning or afternoon hours of February 13, 14, 16, 23, 25 and March 1 and 5, 2002, which he determined to have occurred based on "soreness of anus and discharge from anus." Id. at 4; see also id. at 8. Although he was asleep or unconscious during each of the assaults — and thus is unable to state the exact time of the assaults or identify the perpetrators — Gibbs claims the molestations can be proven by the fact that when he awoke he experienced the physical symptoms described above and noticed that the "special locks" he had put on his cell door had been broken. See id. at 1, 4, 8.
In response to Gibbs' complaints about these events, Greiner, Thacker and Totten "denied these happenings" and Totten ignored Gibbs' request to be moved to a safer cell. Id. at 11; see Answer to Summary Judgment, undated ("Pl. Opp."), Ex. C(1). Gibbs has offered the following specifics regarding his claim that he was repeatedly raped while sleeping.
a. February 16, 2002. Gibbs took a nap between 8:00 a.m. and 10:00 a.m. and awoke to find that he had symptoms of sexual abuse and that the cell door "had been opened." Complaint at 1. Gibbs told defendant Huttle of the incident and requested to see the sergeant. Id. When the sergeant came to Gibbs' cell, Gibbs told him of the incident. Id. Gibbs demanded that he be moved to a different cell but was told there were no other cells available. Id. Upon hearing this, Gibbs became "very upset" and knocked items off the desk in his cell, after which the sergeant asked him if he wanted to go to the Psychiatric Satellite Unit ("PSU"). Id. at 1-2. Gibbs told him Page 3 "I want out of this cell, yeh I want to go downstairs." Id. at 1. The sergeant left and later returned with a nurse and took Gibbs to the PSU. Id. at 2.
The next morning Gibbs was interviewed by a doctor and sergeant "John Doe." Id. at 3. Gibbs told them of the sexual assault but they "only expressed disbelief" and told him it was not possible that someone could enter his cell. Id. Gibbs spent seven days in the PSU but was not given a medical exam or treatment. Id.
b. March 2, 2002. In the morning of March 2, 2002, Gibbs told defendant Sarles that he wanted to speak with a sergeant. Id. at 5. Sarles purportedly told Gibbs that he would notify the sergeant but the sergeant never came to Gibbs' cell. Id. Later that morning Gibbs spoke with Sarles a second time and requested an emergency sick call, claiming that he had again been the victim of an assault. Id. at 6. Sarles allegedly made "a joke of the situation" and was skeptical of Gibbs' claims due to the fact that Gibbs had recently been moved to a new cell. See id. Gibbs repeated his demand for immediate medical attention but Sarles "stood there shaking his head." Id. Sarles eventually told Gibbs that he would tell the nurse and left. Id.
Later that day defendant Centanni walked by Gibbs' cell. Id. at 7. Gibbs told him of the sexual assaults and again requested medical attention. Id. Centanni became "nervous" and "tried to change the subject." Id. Centanni then acted as if he had received a call on his radio and left Gibbs. Id. No medical staff came to Gibbs that day in response to either of his requests. Id. at 6-7.
c. March 6, 2002. Gibbs awoke on the morning of March 6, 2002 with a "sore anus" and an unspecified "discharge." Id. at 8. He told defendant Dashawetz of the assault when the nurse made his morning rounds in the Special Housing Unit ("SHU"). Id. Dashawetz asked him Page 4 when the assault had occurred but Gibbs told him he did not know because he had been unconscious. Id. Gibbs requested medical treatment and an exam and asked to be admitted to the hospital. Id. at 9. While expressing incredulity that someone could be raped and not know when the rape occurred, Dashawetz told Gibbs that he would have to notify the sergeant and the correctional officers; he then left. Id. at 8, 9. When no one came to take Gibbs to the hospital by the afternoon he "suspected [that he] was being ignored." Id. at 9. He saw Sarles several times during the day and requested medical attention each time. Id. Sarles told him on each occasion that the sergeant would be notified. Id.
Gibbs eventually spoke with the sergeant in the afternoon. Id. at 10. The sergeant told him that he was not going to the hospital because the doctor had refused Gibbs' request. Id. When asked why the doctor had refused, the sergeant told Gibbs that they had spoken with individuals at the PSU and other officials and decided that medical attention and an examination were not necessary. Id.
Gibbs' response to the summary judgment motion contains other facts relevant to his claim. While he appears to concede that there were no eyewitnesses to the sexual assaults, see Pl. Opp. at 6, Gibbs asserts that there are two individuals who "have knowledge of such incidents." Id. He does not provide the affidavits of these witnesses, however.
Gibbs also states that he "made exactly [the] same allegations at Elmira Correctional facility" and "was in the process of filing a lawsuit against that facility" but was transferred and lost the papers relevant to the suit. Id. at 7. He states that he made a complaint on October 11, 1999 relating to a sexual assault and was taken to Champlain Valley Hospital where a doctor told him that no blood or semen had been found. Id. Page 5
The defendants have asserted additional relevant facts, only a few of which have been disputed by Gibbs through the introduction of any competent evidence. See Defendants' Rule 56.1 Statement, dated January 22, 2003 ("Def. 56.1 Statement") (annexed to Notice of Motion for Summary Judgment, dated January 22, 2003). As an initial matter, the defendants have asserted without contradiction that Gibbs not only made allegations that he had been raped while unconscious at the Elmira Correctional Facility but that he made the same allegations while at Clinton Correctional Facility. See Def. 56.1 Statement ¶¶ 47-48.
The defendants have also submitted uncontradicted evidence that an SHU cell — such as the one in which Gibbs was confined at Green Haven — is "virtually impossible" to enter without being noticed. Id. ¶ 12. At minimum, two correctional officers and a supervisor are required to open a cell. Id. ¶ 16. Several steps must be taken to open the cell door, including the opening of three separate gates that each make a "loud banging noise." Id. ¶¶ 12-13. The noise is sufficiently loud to alert anyone in the unit — including someone in a "deep sleep" — that a gate is being opened. Id. ¶ 13.
In addition, the SHU cell block at Green Haven is monitored and recorded 24 hours a day and 7 days a week by security cameras. Id. ¶ 17. These cameras provide "almost complete coverage" of the SHU cell block and the feedback is monitored continuously by both a correctional officer and a civilian security officer. Id. ¶¶ 17-18. In response to Gibbs' repeated allegations that he was being sexually assaulted, Totten directed the correctional officers assigned to the SHU to be "particularly attentive" to Gibbs and moved him on two occasions to Page 6 cells in the direct line of the security cameras and in clear view at all times. Id. ¶¶ 19, 22-23.*fn2 Gibbs states that the SHU cameras operate on a rotation and thus it is "possible" that someone could enter his cell while the cameras are focused on another part of the SHU. See Pl. Opp. at 5; see also id. at 13. Gibbs also suggests his assailants may have gained entrance by going through the "catwalk" behind the cells — presumably out of camera view — and climbing through a square tile in his cell floor. See id. at 5; see also id. Ex. C(1).
The Facility Health Services Director at Green Haven, Dr. Carl Koenigsmann, concluded that Gibbs' claims of sexual assault were chronic in nature and that they were symptomatic of a delusional thought process and mental illness. Def. 56.1 Statement ¶¶ 46-48, 50. Further, the allegations were deemed unsubstantiated by virtue of the fact that Gibbs maintained he was unconscious during the attacks and thus was unable to provide any details. Id. ¶¶ 33, 46, 49; see also id. ¶¶ 4, 19, 26. Nonetheless, because Dr. Koenigsmann wanted to "rule out any chance that [Gibbs] may have actually been the victim of repeated assaults," he scheduled Gibbs for a two-physician examination in April 2002. Id. ¶ 51. Gibbs refused to submit to the examination, however. See id. Gibbs claims he did so because he did not trust the medical staff at Green Haven and wanted to be examined at an "outside hospital." Pl. Opp. at 8-9.
At no time did Totten, Centanni, Huttel or Sarles ever witness anyone sexually assaulting Gibbs or entering his cell without authorization. See Def. 56.1 Statement ¶¶ 6-8, 14, 21-22, 26-27. Page 7
B. Procedural History
Gibbs filed his complaint on June 14, 2002, along with an Order to Show Cause. It appears, however, that the initial Order to Show Cause was never served on the defendants. In late August 2002, Gibbs presented another Order to Show Cause to the Court seeking to restrain any further sexual assaults and any retaliation against Gibbs. In the short affidavit that accompanied his request, Gibbs stated that the "assaults and molestations have continued" with the last assault occurring on August 13, 2002 on the "11pm to 7am shift." Affidavit/Affirmation, dated "August ___, 2002" [sic], ¶ 3 (annexed to Docket #11). The Court did not grant the restraining order and directed the parties to treat the request as a motion for a preliminary injunction. See Order, dated September 3, 2002 (Docket #11). The defendants opposed the relief by letter dated October 3, 2002.
On January 22, 2003, the defendants filed their motion for summary judgment, which included the notice required by Local Civil Rule 56.2 informing Gibbs of his obligations in opposing a motion for summary judgment. After numerous requests by Gibbs for extensions of his time to respond, Gibbs submitted opposition papers in May 2003 (though he did not file them). Defendants replied to Gibbs' opposition on June 23, 2003.
II. APPLICABLE LEGAL PRINCIPLES
A. Summary Judgment Standard
Fed.R.Civ.P. 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A fact is material if it "might affect the Page 8 outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "An issue of fact is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson, 477 U.S. at 248).
All factual inferences must be drawn in favor of the non-moving party on a motion for summary judgment. See, e.g., Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003) (citing Anderson, 477 U.S. at 255). Nonetheless, to survive a motion for summary judgment, "the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis omitted) (quoting Fed.R.Civ.P. 56(e)) (citation omitted). A dispute is not "genuine" unless "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
"Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation omitted); accord Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999) ("Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.") (citations omitted), cert. denied, 530 U.S. 1242 (2000). The plaintiff "must provide the Court with `some basis to believe that his version of relevant events is not fanciful.'" Yearwood v. LoPiccolo, 1998 WL 474073, at *3 (S.D.N.Y. Aug. 10, 1998) (citations and some quotation marks omitted). While the submissions of pro se litigants are liberally construed, see, e.g., Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), the fact that Gibbs is "proceeding pro se does not otherwise relieve [him] from the usual Page 9 requirements of summary judgment." Fitzpatrick v. New York Cornell Hosp., 2003 WL 102853, at *5 (S.D.N.Y. Jan. 9, 2003) (citing cases); accord Johnson v. New York Hosp., 1998 WL 851609, at *8 (S.D.N.Y. Dec. 9, 1998) (citing cases), aff'd, 189 F.3d 461 (2d Cir. 1999).
As noted, defendants provided Gibbs with notice of the requirements for responding to a motion for summary judgment, as is required by Local Civil Rule 56.2. See Notice to Pro Se Litigant Opposing Motion for Summary Judgment, filed January 24, 2003. This notice explained that Gibbs could "NOT oppose summary judgment simply by relying upon the allegations in [the] complaint" but rather that he was required to "submit evidence, such as witness statements or documents, countering the facts asserted by the defendants and raising issues of fact for trial." Id. at 1 (capitalization in original). The notice explained that any issue of fact raised in opposition to defendants' motion for summary judgment "must be supported by affidavits or by other documentary evidence" and that failure to provide such support would permit the Court to accept defendants' factual assertions as true. Id. at 2.
B. Section 1983 Claims
Gibbs brings his claims under 42 U.S.C. § 1983. Section 1983 provides:
[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for
To state a claim under 42 U.S.C. § 1983, a plaintiff "must allege (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United Page 10 States." Dwyer v. Regan, 777 F.2d 825
, 828 (2d Cir. 1985) (citations omitted), modified, 793 F.2d 457
(2d Cir. 1986); accord Gomez v. Toledo, 446 U.S. 635
, 640 (1980); Finley v. Giacobbe, 79 F.3d 1285, 1296 (2d Cir. 1996). Section 1983 does not in and of itself create any substantive rights; rather the plaintiff must demonstrate a violation of an independent federal constitutional or statutory right. See, e.g., Chapman v. Houston Welfare Rights Org., 441 U.S. 600
, 617-18 (1979). Gibbs claims violations of his rights under the Eighth Amendment. Defendants do not dispute that the allegations of the complaint demonstrate that they were acting under color of state law.
C. The Prison Litigation Reform Act
Under the Prison Litigation Reform Act ("PLRA"), 110 Stat. 1321-73, as amended, 42 U.S.C. § 1997e(a), "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." This means the prisoner "must pursue his challenge to the conditions in question through the highest level of administrative review prior to filing his suit." Flanagan v. Maly, 2002 WL 122921, at *2 (S.D.N.Y. Jan. 29, 2002) (citations omitted); accord Porter v. Nussle, 534 U.S. 516, 524 (2002) ("[a]ll `available' remedies must now be exhausted"); see also Saunders v. Goord, 2002 WL 1751341, at *2 (S.D.N.Y. July 29, 2002) ("To fully exhaust administrative remedies, the plaintiff must `go beyond the first step,' seeking further stages of administrative review until [he] has availed himself of the final stages of the administrative process.") (citing Booth v. Churner, 532 U.S. 731, 735 (2001)). While section 1997 speaks only of "prison conditions," the exhaustion requirement in the PLRA "applies to all inmate suits about prison life, whether they involve Page 11 general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Nussle, 534 U.S. at 532 (citation omitted).
While Gibbs does not articulate his claims as such, his complaint appears to allege Dashawetz, Sarles and Centanni were deliberately indifferent to his medical needs, see Complaint at 5-12, and that Goord, Greiner, Thacker, Huttel and Totten failed to protect him. See id. at 1, 4-5, 10-11. Each claim, however, is logically dependent on whether Gibbs was in fact sexually assaulted while he slept. If he were not, there could have been no deliberate indifference to his medical needs nor could there have been any failure to protect him.
Although defendants concede that Gibbs' claims as to deliberate indifference have been exhausted under the PLRA, see Defendants' Memorandum of Law in Support of their Motion for Summary Judgment, dated January 22, 2003, at 6-7, 10, they assert that his claims regarding the failure to protect have not. Id. at 7; see also id. at 8-11. They argue that the lack of complete exhaustion means that none of Gibbs' claims may be heard. Id. at 9-10.
The defendants' argument enjoys some support in the case law, see, e.g., Law v. Bergamini, 2003 WL 133272, at *1 (N.D.N.Y. Jan. 14, 2003) (PLRA mandates dismissal of all claims where some are unexhausted); Saunders, 2002 WL 1751341, at *3 (same). Other cases, however, hold that complete exhaustion is not required, see, e.g., see Dimick v. Baruffo, 2003 WL 660826, at *5 (S.D.N.Y. Feb. 28, 2003) ("The Court agrees with the line of cases that allows the exhausted claims to proceed, despite the fact that claims against other defendants are unexhausted."). See Rivera v. Goord, 253 F. Supp.2d 735, 753-54 (S.D.N.Y. 2003) (discussing split in authority); see also Ortiz v. McBride, 323 F.3d 191, 194-95 (2d Cir. 2003) (appointing Page 12 counsel to address, inter alia, whether PLRA has a "total exhaustion" requirement).
The issue of exhaustion does not appear to implicate subject matter jurisdiction. See, e.g., McCoy v. Goord, 255 F. Supp.2d 233, 247 (S.D.N.Y. 2003) (citing cases); Rivera v. Pataki, 2003 WL 21511939, at *4 (S.D.N.Y. July 1, 2003); see also Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002) (implying that lack of exhaustion may be waived by the defendant); but see Cole v. Miraflor, 2003 WL 21710760, at *1 (S.D.N.Y. July 23, 2003) (exhaustion requirement is jurisdictional) (citing cases). Accordingly, rather than enter the thicket of determining which of Gibbs' claims are in fact unexhausted, if any, and the effect of the lack of complete exhaustion, the Court will instead address whether Gibbs has offered sufficient proof that would allow a reasonable jury to conclude that he had been repeatedly raped while he slept in his prison cell — the factual premise underlying all of his claims.
A. Whether Gibbs has Provided Evidence of Sexual Assault
Gibbs' claim that he has been repeatedly raped while he sleeps in multiple prison facilities falls into the very narrow category of claims that are inherently incredible. The assertion that an act of such a violent nature could occur while the victim — not under the influence of any drug or alcohol — slept is on its face absurd. Whether viewed as the Court taking judicial notice of the fact that what Gibbs asserts is factually impossible, cf. Moyer v. IBM Corp., 2003 WL 256931, at *2 (S.D.N.Y. Feb. 3, 2003) (taking judicial notice of the fact that IBM could not induce plaintiff's mental incapacity through, inter alia,"frequencies that hit [his] brain"), or simply as a determination that no reasonable jury could conclude that these assaults had taken place based on Gibbs' evidence, summary judgment must be granted for the defendants. Notably, Gibbs has not submitted the affidavits of any witness to these incidents Page 13 and, of greater significance, has offered no rational explanation as to how it would be physically possible to remain unconscious during attacks of this nature.*fn3
If Gibbs' own allegations were not enough to defeat his claim, there are additional reasons to reach this conclusion. The defendants have provided uncontradicted evidence that it would be "virtually impossible" for someone to gain entry into Gibbs' cell without making noise or being noticed — either by the officers on duty or the security cameras. See Def. 56.1 Statement ¶¶ 12-13, 17-18. Gibbs attempts to dispute this by asserting that "Defendants gives a illusion that Green Havens SHU is totally safe while inmate(s) are in their housing cell. I, plaintiff lived there and experienced certain episodes to know this is not true." See Pl. Opp. at 6 (errors in original). But this sort of conclusory claim is insufficient to defeat a motion for summary judgment. See, e.g., Bickerstaff, 196 F.3d at 452; see also Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (plaintiff may not defeat summary judgment "by relying on . . . conclusory statements, or on mere assertions that affidavits supporting the motion are not credible.") (citations omitted). Nor has Gibbs properly disputed the assertion that at least two officers and a supervisor are required to open his cell door and that several steps must be followed, including the opening of three gates that each make a "loud banging noise." Def. 56.1 Statement ¶¶ 12-13, 16. Although the opening of each gate is loud enough to alert anyone in the unit (including anyone in a "deep sleep"), see id. ¶ 13, Gibbs has offered no explanation for how he could sleep through such a disturbance. To the extent he argues that the alleged assailants Page 14 gained entry through the square tile in the floor of his cell — and thus avoided the three gates and the 24 hour a day security cameras — Gibbs has made no attempt to explain how such an entry is possible. Furthermore, Gibbs refused to submit to a physical examination, which might have provided the evidentiary support to defeat defendants' motion.
In short, Gibbs has not provided this Court with "`some basis to believe that his version of relevant events is not fanciful.'" Yearwood, 1998 WL 474073, at *3 (citations and some quotation marks omitted). No reasonable jury could conclude based on Gibbs' evidence that he had met his burden of proving these assaults took place. As a result, none of Gibbs' claims may proceed.
B. Motion to Amend the Complaint
In his opposition to defendants' motion for summary judgment, Gibbs requests that he be allowed to amend his complaint. See "Notice to the Court (Consideration)," undated ("Request to Amend") (annexed to Pl. Opp.). He attaches no proposed amended complaint, however. Elsewhere in his papers, he states that he wishes to add an allegation regarding an incident that occurred in November 2002, after he filed the complaint. See Pl. Opp. at 14 (alleging that Huttel and "another officer" physically assaulted him during recreation). Such a motion, however, is properly characterized as a motion to supplement the complaint pursuant to Fed R. Civ. P. 15(d), which governs amendments relating to "events which have happened since the date of the pleading sought to be supplemented." The Court declines to grant an amendment for this purpose because a proposed supplemental pleading must "bear some relationship to the subject of the original pleading." Moore's Federal Practice, ¶ 15.30, at 15-108 (3d ed. 2003) (citing cases). Because the November 2002 incident is wholly distinct from the alleged sexual assaults, Page 15 it should not become part of this case.
In addition, Gibbs appears to be seeking leave to amend in order to add a new defendant, Dr. Koenigsmann. See Pl. Opp. at 16-17 (alleging that Dr. Koenigsmann violated his constitutional rights by, inter alia, failing to "intercede" to ensure that the medical staff provided treatment when the sexual assaults occurred). Gibbs should not be permitted to amend the complaint to include Dr. Koenigsmann because Gibbs has not provided any evidence that a sexual assault occurred. Accordingly, Dr. Koenigsmann cannot be deemed to have violated his constitutional rights for refusing medical treatment.
Finally, Gibbs also appears to seek leave to amend because "[o]ther important incidents as well as crucial evidense [sic] needs to be added among other important issues." See id. at 23. He does not specify this evidence and, as noted already, he has not submitted a proposed amended complaint. Moreover, Gibbs had a full opportunity to set forth any contentions regarding the allegations in his complaint in his response to the motion for summary judgment. Accordingly, leave to amend the complaint as he proposes must be denied as futile. See generally Foman v. Davis, 371 U.S. 178, 182 (1962); Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (per curiam).
For the foregoing reasons, defendants' motion for summary judgment should be granted and Gibbs' complaint should be dismissed. Page 16
PROCEDURE FOR FILING OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b) (1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Honorable Richard M. Berman, 40 Centre Street, New York, New York 10007, and to the undersigned at the same address. Any request for an extension of time to file objections must be directed to Judge Berman. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140