Ajayi v. David , 389 F. App'x 66 ( 2010 )

09-3960-cv
A jayi v. David
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM MARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 10 th day of August, two thousand ten.
PRESENT: ROBERT D. SACK,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
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OLADELE AJAYI,
Plaintiff-Appellant,
v. No. 09-3960-cv
CAROL DAVID, SILVIA MONTALBAN,
DEPARTMENT OF HOMELESS SERVICES,
R. NEWMAN, P. GROWE, E. GREEN, Y.
PILGRIM,
Defendants-Appellees.
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APPEARING FOR APPELLANT: OLADELE AJAYI, pro se, Far Rockaway, NY.
APPEARING FOR APPELLEES: SUZANNE K. COLT, Assistant Corporation
Counsel (Pamela Seider Dolgow, Camille D.
Barnett, on the brief), for Michael A. Cardozo,
Corporation Counsel of the City of New York,
New York, New York.
Appeal from a judgment of the United States District Court for the Southern District
of New York (Lewis A. Kaplan, Judge; Andrew J. Peck, Magistrate Judge).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court entered on September 3, 2009, is
AFFIRMED.
Pro se plaintiff Oladele Ajayi appeals from an award of summary judgment in favor
of his former employer, the New York City Department of Homeless Services (“DHS”), and
DHS employees Carol David, Silvia Montalban, R. Newman, P. Growe, E. Green, and Y.
Pilgrim (collectively, “the DHS defendants”) on Ajayi’s claims of employment
discrimination under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621et seq.; the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112 et seq.; the New
York State Human Rights Law, N.Y. Exec. Law § 290 et seq.; and the New York City
Human Rights Law, N.Y. City Admin. Code § 8-101 et seq. In awarding summary judgment
in favor of the DHS defendants, the district court relied on the report and recommendation
of magistrate judge Andrew J. Peck, to which Ajayi filed no objections. We assume the
parties’ familiarity with the facts and the record of prior proceedings, which we reference
only as necessary to explain our decision to affirm.
This court has adopted a rule that failure to object to a magistrate judge’s report and
recommendation within the prescribed time limit “may operate as a waiver of any further
judicial review of the decision, as long as the parties receive clear notice of the consequences
of their failure to object.” United States v. Male Juvenile (95-CR-1074), 121 F.3d 34, 38 (2d
Cir. 1997); see also Thomas v. Arn, 474 U.S. 140, 155 (1985) (holding that court of appeals
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may adopt such waiver rule). The rule applies to both pro se and counseled litigants. See
Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008). Here, the magistrate judge
expressly advised Ajayi that, “[p]ursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the
Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this
Report to file written objections,” and that “[f]ailure to file objections will result in a waiver
of those objections for purposes of appeal.” Ajayi v. Dep’t of Homeless Servs., No. 08 Civ.
3649, 2009 WL 1704329, at *14 (S.D.N.Y. June 18, 2009) (report and recommendation).
Thus, the magistrate judge provided the requisite “express warning” of the consequences of
failure to file objections. Caidor v. Onondaga County, 517 F.3d at 603. Because Ajayi failed
to file any objections despite this warning, he has waived further judicial review of the
findings contained in the report.
While the above-referenced waiver rule is “nonjurisdictional” and, thus, excusable in
the interests of justice, Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993), we detect no basis
for excusing the failure to object here as Ajayi’s arguments on appeal lack substantial merit
largely for the reasons stated by the magistrate judge, supplemented briefly by the district
court, see Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d
Cir. 2000).1
Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, Clerk
1
Because Ajayi does not challenge on appeal the brief analysis added by the district
court to that provided in the magistrate judge’s report and recommendation, any such
argument is deemed waived. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).
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