ZeeWee Dakar IMPALA, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Office of Professional Responsibility, Defendant-Appellee.
15-3055
United States Court of Appeals, Second Circuit.
November 15, 2016
32
FOR DEFENDANT-APPELLEE: Sandra Slack Glover, Assistant U.S. Attorney, New Haven, CT.
PRESENT: AMALYA L. KEARSE, DENNIS JACOBS, ROSEMARY S. POOLER, Circuit Judges.
SUMMARY ORDER
Appellant ZeeWee Dakar Impala appeals from the district court‘s judgment on the pleadings, which dismissed his action on recommendation by the assigned magistrate judge. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
“We have adopted the rule that failure to object timely to a magistrate‘s report operates as a waiver of any further judicial review of the magistrate‘s decision . . . at least when the parties receive clear notice of the consequences of their failure to object.” Small v. Sec‘y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam);
The magistrate judge‘s report warned Impala, who was pro se, that failure to object may bar further review; but that warning erroneously failed to explain that Impala‘s failure to object would preclude appellate review, nor did it specify the deadline by which to object. However, the district judge successively gave Impala two clear deadlines, with express statements that absent his objection by the deadline specified the case would be dismissed. Impala failed to object by either deadline.
We decline to excuse Impala‘s failure to object “in the interests of justice.” Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993). The inquiry is “whether the defaulted argument has substantial merit or, put otherwise, whether the magistrate judge committed plain error in ruling against the defaulting party.” Spence v. Superintendent, 219 F.3d 162, 174 (2d Cir. 2000). For the reasons identified in the magistrate judge‘s report and recommendation, Impala‘s claims lack a basis in fact or law. Thus, the district court did not err in declining to afford Impala an additional opportunity to object.