Opinion
No. 07-5602-pr.
March 25, 2010.
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.
Phelicia Pruitt, pro se, Bedford Hills, N.Y., for Plaintiff-Appellant.
David Lawrence III, Assistant Solicitor General; Andrew M. Cuomo, Attorney General of the State of New York; New York, N.Y., for Defendant-Appellee.
PRESENT: WILFRED FEINBERG, ROBERT A. KATZMANN, PETER W. HALL, Circuit Judges.
SUMMARY ORDER
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 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, 106 S.Ct. 466, 88 L.Ed.2d 435 (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.