Caidor v. Onondaga County, No. 06-4698 (2d Cir. 2008)

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06-4698-cv Caidor v. Onondaga County 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: December 11, 2007 Decided: February 21,2008) Docket No. 06-4698-cv - - - - - - - - - - - - - - - - - - - -x JUNET CAIDOR, Plaintiff-Appellant, - v.ONONDAGA COUNTY, SHERYL KARPINSKI, SHAUN MCCARTHY, JOHN BALLONI, MAUREEN CRANER and TEDDY SPOONER, Defendants-Appellees. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, POOLER and SACK, Circuit Judges. Plaintiff-Appellant Junet Caidor appeals from an order 32 entered in the Northern District of New York (Peebles, M.J.) 33 on September 20, 2004, denying his motion to compel 34 discovery and issuing a protective order on behalf of the 35 defendants. 36 Caidor waived his right to appeal the magistrate s order. 37 Judge Pooler dissents in a separate opinion. For the following reasons, we conclude that 1 2 3 4 5 6 7 8 9 10 11 12 PHILLIP G. STECK, Cooper, Erving & Savage LLP, Albany, NY, for Plaintiff-Appellant. 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 13 of summary judgment in favor of the defendants by the United 14 States District Court for the Northern District of New York 15 (McCurn, J.), and an order entered by Magistrate Judge 16 Peebles, denying Caidor s motion to compel discovery and 17 issuing a protective order for the defendants benefit. 18 a separate summary order filed today, we affirm the grant of 19 summary judgment dismissing the complaint. 20 concerns only the discovery order, which was entered while 21 Caidor was appearing pro se. 22 In This opinion Caidor did not object to Magistrate Judge Peebles s 23 order in the district court. It is settled law that a pro 24 se litigant s failure to object to a magistrate judge s 25 decision on a dispositive matter does not effect a waiver of 26 appellate review absent an express warning from the 27 magistrate judge. 28 892 F.2d 15, 16 (2d Cir. 1989) (per curiam). 29 reasons stated below, we decline to extend that rule to a Small v. Sec y of Health & Human Servs., 2 For the 1 magistrate judge s decision on a non-dispositive matter. 2 therefore hold that Caidor waived his right to appeal 3 Magistrate Judge Peebles s order. 4 We On appeal, Caidor argues that his lost opportunity for 5 discovery prevented him from resisting summary judgment. 6 Because Caidor did not press this argument in the district 7 court, ordinarily we would not consider it on appeal. 8 Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 9 2006) ( [I]t is a well-established general rule that an 10 appellate court will not consider an issue raised for the 11 first time on appeal. ) (quoting Greene v. United States, 12 13 F.3d 577, 586 (2d Cir. 1994) (alteration in original)). 13 However, because the rule is prudential, not 14 jurisdictional, we have discretion to consider waived 15 arguments. 16 (2d Cir. 2004) (citation omitted), vacated on other grounds, 17 542 U.S. 917, 124 S. Ct. 2870 (2004). 18 have exercised this discretion where necessary to avoid a 19 manifest injustice or where the argument presents a question 20 of law and there is no need for additional fact-finding. 21 Id. (citation omitted). 22 23 See Sniado v. Bank Austria AG, 378 F.3d 210, 213 For instance, [w]e Caidor, who is not a lawyer, was appearing pro se when he opposed the defendants motion for summary judgment. 3 On 1 appeal, the defendants argue waiver. But they do not rely 2 on Caidor s failure to oppose summary judgment on the ground 3 of outstanding discovery requests; instead, they rely on his 4 failure to object to Judge Peebles s discovery ruling in the 5 district court. 6 is one of pure law, and is fully briefed by counsel. 7 these reasons, we exercise our discretion to consider this 8 issue. The appellate issue framed by the parties For 9 BACKGROUND 10 11 Caidor began working at the Onondaga County Department 12 of Emergency Communications on March 11, 2002. 13 later, he was fired after his supervisors learned that his 14 job application failed to disclose his criminal record. 15 July 1, 2003, Caidor filed suit in the Northern District of 16 New York, alleging that his termination was based on race 17 discrimination, in violation of Title VII of the Civil 18 Rights Act of 1964, 42 U.S.C. § 2000e; 42 U.S.C. §§ 1981, 19 1983 and 1985; the Americans with Disabilities Act of 1990, 20 42 U.S.C. § 12101; and the New York State Human Rights Law, 21 N.Y. Exec. Law § 290. 22 23 Four days On Magistrate Judge Peebles, who oversaw pretrial discovery in this matter pursuant to 28 U.S.C. § 636(b)(1), 4 1 set a discovery deadline of April 16, 2004. 2 (after the deadline had passed) the parties reported that 3 they were close to settlement; but soon thereafter, Caidor s 4 lawyer withdrew from the representation. 5 Judge Peebles entered an order (1) extending the discovery 6 deadline to August 13, 2004, (2) allowing Caidor to serve 7 three additional interrogatories on the defendants, and (3) 8 ordering Caidor to respond to the defendants discovery 9 requests and appear for his deposition. 10 In May 2004 On July 29, 2004, Caidor thereafter served on the defendants forty 11 document requests and six requests for admission. On August 12 26, 2004, Caidor moved to compel the defendants to respond. 13 On September 20, 2004, Judge Peebles entered an order 14 denying the motion to compel and issuing a protective order 15 for the benefit of the defendants. 16 that the failure of a party to file objections in the 17 district court within ten days would preclude appellate 18 review pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of 19 Civil Procedure 72(a). 20 order in the district court. 21 appeal. The order did not advise Caidor filed no objection to the He challenges it now on 5 DISCUSSION 1 2 In general, failure to object timely to a magistrate s 3 report operates as a waiver of any further judicial review 4 of the magistrate s decision. 5 (citations omitted); see, e.g., Spence v. Md. Cas. Co., 995 6 F.2d 1147, 1155 (2d Cir. 1993) ( Spence did not object in 7 the district court to the magistrate judge s rulings within 8 the period allowed by the Rules or, indeed, at any time 9 prior to the entry of final judgment. 10 11 Small, 892 F.2d at 16 Accordingly, he may not challenge those discovery rulings in this Court. ). Caidor relies on the following text from Small for the 12 proposition that his pro se status excused his failure to 13 object in the court below: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 [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. Small, 892 F.2d at 16. We conclude that Small, which concerned a pro se 28 litigant s appeal from a magistrate s report and 29 recommendation on a dispositive matter, is limited to that 6 1 context. Federal Rule of Civil Procedure 72(b), which 2 governs magistrates decisions on dispositive matters, like 3 the one at issue in Small, contains no explicit waiver 4 language; but there is a warning as to waiver in Rule 72(a), 5 which governs non-dispositive matters like the one at issue 6 here. 7 after being served with a copy of the recommended 8 disposition, a party may serve and file specific written 9 objections to the proposed findings and recommendations. ) Compare Fed. R. Civ. P. 72(b)(2) ( Within 10 days 10 with Fed R. Civ. P. 72(a) ( A party may serve and file 11 objections to the order within 10 days after being served 12 with a copy. 13 the order not timely objected to. (emphasis added)); see 14 also Marcella v. Capital Dist. Physicians Health Plan, 15 Inc., 293 F.3d 42, 46 (2d Cir. 2002) (observing that unlike 16 Rule 72(a), there is no similar [waiver] provision in Rule 17 72(b) for recommendations as to dispositive motions ). 18 where a magistrate s ruling on a dispositive matter is at 19 issue, our waiver rule is set forth only in case law. 20 Small, 892 F.2d at 16. 21 22 23 24 A party may not assign as error a defect in 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 7 So, 1 2 3 4 5 6 7 8 9 the magistrate s report, none of those rules would have informed her of the potential waiver of appellate 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) 10 does not warn pro se litigants of appellate waiver, we 11 tasked magistrate judges with doing so. 12 applied consistently by this Circuit to pro se litigants 13 appeals from magistrates rulings on dispositive matters. 14 See, e.g., Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) 15 (finding waiver where the magistrate s report and 16 recommendation proposing dismissal plainly satisfie[d] the 17 Small requirements, and additionally referred to the Small 18 decision ); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 19 1992) (finding waiver where pro se litigant failed to 20 object to the Magistrate Judge s report after receiving 21 adequate notice of the consequences of a failure to object 22 in a timely manner ). Small has been 23 Caidor asks us to extend Small to his appeal from the 24 magistrate s ruling on a non-dispositive discovery matter. 25 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); Thomas E. 26 Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 27 1990) ( Matters concerning discovery generally are 8 1 considered nondispositive of the litigation. (citation and 2 internal punctuation omitted)). 3 allowances for pro se litigants. 4 right to appear pro se should not be impaired by harsh 5 application of technical rules, and therefore we make 6 reasonable allowances to protect pro se litigants from 7 inadvertent forfeiture of important rights because of their 8 lack of legal training. 9 (2d Cir. 1983). This Circuit makes certain We recognize that the Traguth v. Zuck, 710 F.2d 90, 95 Nonetheless, pro se litigants generally 10 are required to inform themselves regarding procedural rules 11 and to comply with them. 12 Cir. 1995) (citation omitted); see also Lucas v. Miles, 84 13 F.3d 532, 538 (2d Cir. 1996) (Jacobs, J., dissenting) ( The 14 concept of sixty days can be understood and appreciated 15 without a legal education. 16 to believe that sixty days is an elusive concept.) ). 17 Edwards v. INS, 59 F.3d 5, 8 (2d (One would have to be a lawyer [T]his is not a case where a pro se litigant has 18 stumbled into a snare found only in our case law. 19 v. Middletown, 71 F.3d 88, 92 (2d Cir. 1995). 20 consulted the Federal Rule of Civil Procedure applicable to 21 Magistrate Judge Peebles s order, it would have informed 22 [him] of the potential waiver of appellate review. 9 LoSacco If Caidor had Small, 1 892 F.2d at 16.1 2 rule will warn a pro se litigant of the consequences of 3 filing an untimely objection, we see no need to require that 4 the magistrate judge inform the litigant of an appeal waiver 5 provision. 6 fails to object timely to a magistrate s order on a non- 7 dispositive matter waives the right to appellate review of 8 that order, even absent express notice from the magistrate 9 judge that failure to object within ten days will preclude 10 Accordingly, we hold that a pro se litigant who appellate review. CONCLUSION 11 12 Where, as here, reading the applicable The judgment is affirmed. 1 In the Southern District of New York, pro se litigants are given a manual that advises, If you do not object to the Magistrate Judge s order within that ten (10) day period, you may not later object to the order. Manual for Pro Se Litigants Appearing Before the United States District Court for the Southern District of New York, available at http://www1.nysd.uscourts.gov/cases/ show.php?db=forms&id=71. The Northern District of New York might consider supplementing its pro se manual with a similar express warning about the risk of appellate waiver. 10 POOLER, Circuit Judge, dissenting: 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 11 York that it might consider supplementing its pro se manual, I, respectfully, see no merit to this ungenerous little opinion. 12

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