JUNET CAIDOR, Plaintiff-Appellant, v. ONONDAGA COUNTY, SHERYL KARPINSKI, SHAUN MCCARTHY, JOHN BALLONI, MAUREEN CRANER and TEDDY SPOONER, Defendants-Appellees.
Docket No. 06-4698-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2007 (Argued: December 11, 2007 Decided: February 21, 2008)
Before: JACOBS, Chief Judge, POOLER and SACK, Circuit Judges.
KAREN A. BLESKOSKI (Anthony P. Rivizzigno, County Attorney, of counsel), Syracuse, NY, for Defendants-Appellees.
DENNIS JACOBS, Circuit Judge:
Plaintiff-Appellant Junet Caidor challenges the grant of summary judgment in favor of the defendants by the United States District Court for the Northern District of New York (McCurn, J.), and an order entered by Magistrate Judge Peebles, denying Caidor‘s motion to compel discovery and issuing a protective order for the defendants’ bеnefit. In a separate summary order filed today, we affirm the grant of summary judgment dismissing the complaint. This opinion concerns only the discovery order, which was entered while Caidor was appearing pro se.
Caidor did not оbject to Magistrate Judge Peebles‘s order in the district court. It is settled law that a pro se litigant‘s failure to object to a magistrate judge‘s decision on a dispositive matter does not effect a waiver of apрellate review absent an express warning from the magistrate judge. Small v. Sec‘y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam). For the reasons stated below, we decline to extend that rule to a
On appeal, Caidor argues that his lost opportunity for discovery prevented him from resisting summary judgment. Because Caidor did not press this argument in the district court, ordinarily we would not consider it on appeal. See Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 2006) (“‘[I]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.‘“) (quoting Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994) (alteration in original)). “However, because the rule is prudential, not jurisdictional, we have discretion to consider waived arguments.” Sniado v. Bank Austria AG, 378 F.3d 210, 213 (2d Cir. 2004) (citation omitted), vacated on other grounds, 542 U.S. 917, 124 S. Ct. 2870 (2004). For instance, “[w]e have exercised this discretion where necessary to avoid a manifеst injustice or where the argument presents a question of law and there is no need for additional fact-finding.” Id. (citation omitted).
Caidor, who is not a lawyer, was appearing pro se when he opposed the defendants’ motion for summary judgment. On
BACKGROUND
Caidor began working at the Onondagа County Department of Emergency Communications on March 11, 2002. Four days later, he was fired after his supervisors learned that his job application failed to disclose his criminal record. On July 1, 2003, Caidor filed suit in the Northern District of New Yоrk, alleging that his termination was based on race discrimination, in violation of
Magistrate Judge Peebles, who oversaw pretrial discovery in this matter pursuant to
Cаidor thereafter served on the defendants forty document requests and six requests for admission. On August 26, 2004, Caidor moved to compel the defendants to respond. On September 20, 2004, Judge Peebles entered an order denying the motion tо compel and issuing a protective order for the benefit of the defendants. The order did not advise that the failure of a party to file objections in the district court within ten days would preclude appellate review pursuant to
In general, “failure to object timely to a magistrate‘s report operates as a waiver of any further judicial review of the magistrate‘s decision.” Small, 892 F.2d at 16 (citations omitted); see, e.g., Spence v. Md. Cas. Co., 995 F.2d 1147, 1155 (2d Cir. 1993) (“Spence did not object in the district court to the magistrate judge‘s rulings within the period allowed by the Rules or, indeed, at any time prior to the entry of final judgment. Accordingly, he mаy not challenge those discovery rulings in this Court.“).
Caidor relies on the following text from Small for the proposition that his pro se status excused his failure to object in the court below:
[A] pro se party‘s failure to object to a magistrate‘s report and recommendation within the ten day time limit prescribed by
28 U.S.C. § 636(b)(1) does not operate as a waiver of the right to appellate review of the district court‘s adoption of the magistrate‘s recommendation unless the magistrate‘s report explicitly states that failure to object to the report within ten (10) days will preclude appellate review and specifically cites28 U.S.C. § 636(b)(1) and rules72 ,6(a) and6(e) of the Federal Rules of Civil Procedure.
We conclude that Small, which concerned a pro se litigant‘s appeal from a mаgistrate‘s report and recommendation on a dispositive matter, is limited to that
The Court in Small reasoned that even if the pro se plaintiff
had attempted to locate the specific Federal Rules of Civil Procedure cited at the end of
the magistrate‘s report, none of those rules would have informed her of the potential waiver of apрellate review . . . To require a pro se plaintiff . . . to wade through the case law of this Circuit in order to preserve her right to appellate review would be an unreasonable burden.
Small, 892 F.2d at 16. In other words, because Rule 72(b) dоes not warn pro se litigants of appellate waiver, we tasked magistrate judges with doing so. Small has been applied consistently by this Circuit to pro se litigants’ appeals from magistrates’ rulings on dispositive matters. See, e.g., Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (finding waiver where the magistrate‘s report and recommendation proposing dismissal “plainly satisfie[d] the Small requirements, and additionally referred to the Small decision“); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992) (finding waiver where pro se litigant “failed to object to the Magistrate Judge‘s report after receiving adequate nоtice of the consequences of a failure to object in a timely manner“).
Caidor asks us to extend Small to his appeal from the magistrate‘s ruling on a non-dispositive discovery matter.
“[T]his is not a case where a pro se litigant has stumbled into a snare found only in our case law.” LoSacco v. Middletown, 71 F.3d 88, 92 (2d Cir. 1995). If Caidor had consulted the Federal Rule of Civil Procеdure applicable to Magistrate Judge Peebles‘s order, it “would have informed [him] of the potential waiver of appellate review.” Small, 892 F.2d at 16.1
CONCLUSION
The judgment is affirmed.
I respectfully dissent. It is not enough to repeat the language of solicitude for the rights of pro se litigants without giving meaning to those rights. Since we need not reach the issue of whether this plaintiff waived his discovery rights, in order to affirm the grant of summary judgment to the defendants in this discrimination action, we should not do so. This is especially so, since, as the majority opinion points out, the Northern District of New York does not separately inform litigants in its pro se manual of the risk of appellate waiver for failing to object within the required period. Plaintiff benefitted from some discovery while he was represented by counsel and he does not, on appeal, explain what additional information he sought. The key question of whether Onondaga County Department of Emergency Communications had ever employed anyone who had a discrepancy between their criminal background check and their responses to related questions on the application form had already been answered. Therefore, we need not decide whether Magistrate Peebles correctly denied plaintiff‘s motion to compel discovery because it would not alter the outcome of the motion for summary judgment. Apart from advising the Northern District of New