     08-5183-pr
     Sumpter v. Skiff



                         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 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 19th day of February, two thousand ten.

     PRESENT:
                 ROBERT A. KATZMANN,
                 REENA RAGGI,
                       Circuit Judges,
                 JOHN G. KOELTL,*
                       District Judge.
     ___________________________________________________

     Willie Sumpter,

                    Plaintiff-Appellant,

                    v.                                                   08-5183-pr

     D. Skiff, Counselor, Gouverneur Correctional Facility,
     Glenn S. Goord, Commissioner,

                    Defendants-Appellees,

     Lucien LeClaire, Jr., Deputy Commissioner,

                 Defendant.
     ____________________________________________________


            *
             John G. Koeltl, of the United States District Court for the Southern District of New
     York, sitting by designation.
FOR APPELLANT:                 Willie Sumpter, pro se, Ogdensburg, N.Y.

FOR APPELLEES:                 Andrew M. Cuomo, Attorney General for the State of New
                               York; Barbara D. Underwood, Solicitor General; Nancy A.
                               Spiegel, Senior Assistant Solicitor General; Kate H. Nepveu,
                               Assistant Solicitor General, Albany, N.Y.


       Appeal from a judgment of the United States District Court for the Northern District

of New York (McAvoy, J.).

       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court be AFFIRMED.

       The appellant Willie Sumpter, pro se, appeals from a judgment of the district court

dismissing his 42 U.S.C. § 1983 complaint. The district court adopted the report and

recommendation of a magistrate judge, to which Sumpter filed no objections after the

district court denied his motion for an extension of time to file objections. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.

       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.” Thomas v. Arn, 474 U.S. 140, 155 (1985) (holding that a Court of Appeals may

adopt such a rule); United States v. Male Juvenile (95-CR-1074), 121 F.3d 34, 38 (2d Cir.

1997); see also Wesolek v. Canadair Limited, 838 F.2d 55, 58 (2d Cir. 1988). 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



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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) (citations omitted).

       We note that insofar as the appellant challenges the district court’s denial of his

motion for an extension of time to file objections to the report and recommendation, we

review such decisions for abuse of discretion, see Wesolek, 838 F.2d at 58, and we have

determined that, here, the district court acted within its discretion by denying the motion

because the appellant failed to assert good cause for the requested extension, as required by

Fed. R. Civ. P. 6. We also note that while the district court declined to grant the appellant

leave to amend his complaint, even a liberal reading of the complaint gives no indication

that he could have stated a valid claim in a second amended complaint. See Shomo v. City

of New York, 579 F.3d 176, 183 (2d Cir. 2009) (citing Gomez v. USAA Fed. Sav. Bank, 171

F.3d 794, 795 (2d Cir. 1999)).

        For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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