From Casetext: Smarter Legal Research

Small v. Secretary of Health and Human Services

United States Court of Appeals, Second Circuit
Oct 17, 1989
892 F.2d 15 (2d Cir. 1989)

Summary

holding that, when a litigant is pro se, an R&R's warning must state the consequences of failure to object and must cite 28 U.S.C. § 636(b) and applicable rules of civil procedure

Summary of this case from Combier v. Portelos

Opinion

Docket No. 89-6031.

Argued October 17, 1989.

Decided October 17, 1989. Opinion December 14, 1989.

Nancy Morawetz, Joyce Tom, Legal Intern, Laurie Norris, Legal Intern, Washington Square Legal Services, New York City, for plaintiff-appellant.

Benito Romano, U.S. Atty., S.D.N.Y., Sapna V. Raj, Sp. Asst. U.S. Atty., S.D. N.Y., New York City, for defendant-appellee.

Appeal from the United States District Court for the Southern District of New York.

Before LUMBARD, MESKILL and WINTER, Circuit Judges.


This is a motion to dismiss an appeal from an order of the United States District Court for the Southern District of New York, Edelstein, J., granting defendant-appellee's motion to dismiss the complaint for lack of subject matter jurisdiction. Defendant-appellee Secretary of Health and Human Services (the Secretary) moves to dismiss plaintiff's appeal for failure to object to the magistrate's report and recommendation, which the district court adopted. The motion was argued before this Court on October 17, 1989, at which time we denied the Secretary's motion. We write to clarify the basis for that ruling.

BACKGROUND

Plaintiff-appellant Shirley Small (Small) sought a hearing before an Administrative Law Judge (ALJ) on the Secretary's decision to terminate her social security income benefits. After Small failed to attend several scheduled hearings, the ALJ dismissed her request for a hearing. The Secretary's Appeals Council refused to review the ALJ's decision, and Small commenced this action pro se to obtain review of the ALJ's dismissal pursuant to 42 U.S.C. § 405(g). The Secretary moved pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss the complaint for lack of subject matter jurisdiction on the basis that no final decision of the Secretary existed for the district court to review. See 42 U.S.C. § 405(g) (district courts may review any "final decision" of the Secretary).

Pursuant to 28 U.S.C. § 636(b)(1)(B), the district court referred the motion to Magistrate Leonard Bernikow. On August 25, 1987, the magistrate issued a report recommending that plaintiff's complaint be dismissed without prejudice. The report stated that the parties "are hereby advised of their right to file objections to this report with Judge Edelstein on or before September 14, 1987. See Fed.R.Civ.P. 72(b), 6(a), 6(e)." Small never objected to the magistrate's report, and by order dated November 28, 1988 the district court adopted the magistrate's recommendation and dismissed the complaint. Small appeals from that order and the Secretary moves to dismiss the appeal for Small's failure to object to the magistrate's report.

DISCUSSION

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. Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); see McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983); John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 588 F.2d 24, 29-30 (2d Cir. 1978), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773 (1979). The Supreme Court upheld this practice, at least when the parties receive clear notice of the consequences of their failure to object. See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). In the present case, the magistrate's report notified the parties of the ten day time limit on their right to object, but made no mention of our rule that failure to object will preclude further judicial review. Moreover, even if Small 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 appellate review because our waiver rule is set forth only in case law. To require a pro se plaintiff such as Small to wade through the case law of this Circuit in order to preserve her right to appellate review would be an unreasonable burden.

Accordingly, we hold that 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 cites 28 U.S.C. § 636(b)(1) and rules 72, 6(a) and 6(e) of the Federal Rules of Civil Procedure.

Motion denied.


Summaries of

Small v. Secretary of Health and Human Services

United States Court of Appeals, Second Circuit
Oct 17, 1989
892 F.2d 15 (2d Cir. 1989)

holding that, when a litigant is pro se, an R&R's warning must state the consequences of failure to object and must cite 28 U.S.C. § 636(b) and applicable rules of civil procedure

Summary of this case from Combier v. Portelos

holding that waiver rule applies to pro se plaintiffs where, as here, magistrate's report and recommendation "explicitly states that failure to object [timely] . . . will preclude appellate review"

Summary of this case from Friedman v. Self Help Cmty. Servs., Inc.

holding that a pro se party's failure to object to a report-recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Ingraham v. Saint Mary's Hosp.

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Harrison v. Thompson

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Blackshear v. Artus

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Sripirom v. Rivers Casino & Resort

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Norwood v. Albany City Police Dep't

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Williams v. Serv. Tire Truck Ctr.

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Baltes v. Attorney Gen. of N.Y.

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Britt v. Carberry

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Williams v. Serv. Truck Ctr.

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Zulu v. Barnhart

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Bitetto v. Baxter

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Powell v. Saratoga Cnty.

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Trowell v. Galioto

holding that a pro se party's failure to object to a report-recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Lewis v. Martinez

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Harlow v. Allen Rebecca Heard, & Progressive Ins. Co.

holding that a pro se party's failure to object to a report-recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from James v. Doty

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Lance R. Bishop v. Presser

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Carleton v. Annucci

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Chaplin v. Kirkpatrick

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Salim v. Patnode

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from McNeil v. HCDSS

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Ford v. Deacon

holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b) and Rules 72, 6, and former 6(e) of the Federal Rules of Civil Procedure

Summary of this case from Condon v. Dormitory Auth. of N.Y.
Case details for

Small v. Secretary of Health and Human Services

Case Details

Full title:SHIRLEY SMALL, PLAINTIFF-APPELLANT, v. SECRETARY OF HEALTH AND HUMAN…

Court:United States Court of Appeals, Second Circuit

Date published: Oct 17, 1989

Citations

892 F.2d 15 (2d Cir. 1989)

Citing Cases

Caidor v. Onondaga County

It is settled law that a pro se litigant's failure to object to a magistrate judge's decision on a…

Roldan v. Racette

The report-recommendation was served upon the parties by certified mail. It included the following notice:…