     09-1882-pr
     Mitchell v. City of New York



                        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 12th day of March, two thousand ten.

     PRESENT:
                 DENNIS JACOBS,
                       Chief Judge,
                 JOHN M. WALKER, JR.,
                 DEBRA ANN LIVINGSTON,
                       Circuit Judges.
     ___________________________________________________

     Benjamin Mitchell, Jr.,

                   Petitioner-Appellant,


                   v.                                                 09-1882-pr

     C.O. Comacho, G.R.V.C., Individual capacity; C.O. Robertson,
     G.R.V.C., Individual capacity; C.O. Benn, G.R.V.C., Individual
     capacity; Dietician Jane Doe, G.R.V.C., Individual capacity,

                   Defendants-Appellees,

     City of New York; Warden Robert Shaw, Individual capacity,

                 Respondents-Appellees.
     ____________________________________________________
FOR APPELLANT:                 Benjamin Mitchell, pro se, Malone, New York.

FOR APPELLEES:                 No appearances.

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

of New York (Castel, J., Francis, M.J.).

       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,

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

       Benjamin Mitchell, pro se, incarcerated, and proceeding in forma pauperis, appeals

a judgment of the district court sua sponte dismissing his complaint without prejudice.

Mitchell alleged constitutional violations and violations of the Americans with Disabilities

Act, 42 U.S.C. § 12101 et seq. Dismissal was for failure to effect timely service upon the

defendants, pursuant to Federal Rule of Civil Procedure 4(m). The district court adopted

the report and recommendation of a magistrate judge, to which Mitchell filed no 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.” United States v. Male Juvenile, 121 F.3d 34, 38-39 (2d Cir. 1997); see also

Wesolek v. Canadair Limited, 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.



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1993), we have no basis for doing so here. None of Mitchell’s arguments on appeal has

substantial merit. See Wesolek 838 F.2d at 58.

       Since the district court dismissed the complaint without prejudice, Mitchell is not

barred from filing (and properly serving) a new complaint raising the same allegations--

although we express no opinion on whether such a complaint would be barred by the statute

of limitations or other grounds.

       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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