Impala v. United States Department of Justice ( 2016 )

15-3055
Impala v. Department of Justice
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the
2 Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the 15th day
4 of November, two thousand sixteen.
5
6 PRESENT:
7 AMALYA L. KEARSE,
8 DENNIS JACOBS,
9 ROSEMARY S. POOLER,
10 Circuit Judges.
11 _____________________________________
12
13 ZeeWee Dakar Impala,
14
15 Plaintiff-Appellant,
16
17 v. 15-3055
18
19 United States Department of
20 Justice, Office of Professional
21 Responsibility,
22
23 Defendant-Appellee.
24 _____________________________________
25
26
27
28 FOR PLAINTIFF-APPELLANT: Thomas J. Lengyel, Milford, CT.
29
30 FOR DEFENDANT-APPELLEE: Sandra Slack Glover, Assistant
31 U.S. Attorney, New Haven, CT.
32
1 Appeal from a judgment of the United States District Court
2 for the District of Connecticut (Bryant, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
5 DECREED that the judgment of the district court is AFFIRMED.
6 Appellant ZeeWee Dakar Impala appeals from the district
7 court’s judgment on the pleadings, which dismissed his action
8 on recommendation by the assigned magistrate judge. We assume
9 the parties’ familiarity with the underlying facts, the
10 procedural history of the case, and the issues on appeal.
11 “We have adopted the rule that failure to object timely to
12 a magistrate’s report operates as a waiver of any further
13 judicial review of the magistrate’s decision . . . at least when
14 the parties receive clear notice of the consequences of their
15 failure to object.” Small v. Sec'y of Health and Human Servs.,
16 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); 28 U.S.C. §
17 636(b)(1).
18 The magistrate judge’s report warned Impala, who was pro
19 se, that failure to object may bar further review; but that
20 warning erroneously failed to explain that Impala’s failure to
21 object would preclude appellate review, nor did it specify the
22 deadline by which to object. However, the district judge
23 successively gave Impala two clear deadlines, with express
24 statements that absent his objection by the deadline specified
25 the case would be dismissed. Impala failed to object by either
26 deadline.
27 We decline to excuse Impala’s failure to object “in the
28 interests of justice.” Roldan v. Racette, 984 F.2d 85, 89 (2d
29 Cir. 1993). The inquiry is “whether the defaulted argument has
30 substantial merit or, put otherwise, whether the magistrate
31 judge committed plain error in ruling against the defaulting
32 party.” Spence v. Superintendent, 219 F.3d 162, 174 (2d Cir.
33 2000). For the reasons identified in the magistrate judge’s
34 report and recommendation, Impala’s claims lack a basis in fact
35 or law. Thus, the district court did not err in declining to
36 afford Impala an additional opportunity to object.
37 We have considered Impala’s remaining arguments and find
38 them to be without merit. Accordingly, we AFFIRM the judgment
39 of the district court.
40 FOR THE COURT:
41 Catherine O’Hagan Wolfe, Clerk
3