07-5602-pr
Pruitt v. Lewy
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 “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST 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 25th day of March, two thousand ten.
PRESENT:
WILFRED FEINBERG,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
_____________________________________
Phelicia Pruitt,
Plaintiff-Appellant,
v. 07-5602-pr
Dr. Lewy, Staff Physician Bedford
Hills Correctional Facility,
individually and in her official
capacity,
Defendant-Appellee.
_____________________________________
FOR PLAINTIFF-APPELLANT: Phelicia Pruitt, pro se, Bedford
Hills, N.Y.
FOR DEFENDANT-APPELLEE: David Lawrence III, Assistant
Solicitor General; Andrew M. Cuomo,
Attorney General of the State of
New York; New York, N.Y.
Appeal from a judgment of the United States District Court
for the Southern District of New York (Kaplan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Phelicia Pruitt, proceeding pro se, appeals the
district court’s grant of summary judgment on her 42 U.S.C.
§ 1983 claims in favor of Appellee. We assume the parties’
familiarity with the underlying facts, the procedural history of
the case, and the issues on appeal.
When reviewing de novo the district court’s decision to
grant summary judgment, we consider whether the district court
correctly concluded that there were no genuine issues of material
fact and that the moving party was entitled to judgment as a
matter of law. See, e.g., Miller v. Wolpoff & Abramson, L.L.P.,
321 F.3d 292, 300 (2d Cir. 2003). In determining whether there
are genuine issues of material fact, we are “required to resolve
all ambiguities and draw all permissible factual inferences in
favor of the party against whom summary judgment is sought.”
Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal
quotation marks omitted). However, “conclusory statements or
mere allegations [are] not sufficient to defeat a summary
judgment motion.” Davis v. State of New York, 316 F.3d 93, 100
(2d Cir. 2002).
This Court has adopted the rule that failure to timely
object to a magistrate judge’s report and recommendation “may
operate as a waiver of any further judicial review of the
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decision, as long as the parties receive clear notice of the
consequences of their failure to object.” United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); see also Wesolek v.
Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474
U.S. 140, 155 (1985) (holding that a Court of Appeals may adopt
such a rule). While this rule, which applies to pro se
litigants, is “a nonjurisdictional waiver provision whose
violation we may excuse in the interests of justice,” Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993), we find no basis for
doing so here, where none of Appellant’s arguments on appeal have
substantial merit, see Spence v. Superintendent, Great Meadow
Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000) ("Such
discretion is exercised based on, among other factors, whether
the defaulted argument has substantial merit or, put otherwise,
whether the magistrate judge committed plain error in ruling
against the defaulting party.”).
Furthermore, an independent review of the record and
relevant case law reveals that the district court properly
adopted the magistrate judge’s recommendation to grant Appellee’s
motion for summary judgment. We affirm for substantially the
same reasons stated by the magistrate judge in her thorough
September 25, 2007 report and recommendation. We have considered
all of Appellant’s arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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