     06-4698-cv
     Caidor v. Onondaga County


 1                         UNITED STATES COURT OF APPEALS
 2
 3                               FOR THE SECOND CIRCUIT
 4
 5                                  August Term, 2007
 6
 7
 8     (Argued: December 11, 2007               Decided: February 21,2008)
 9
10                                Docket No. 06-4698-cv
11
12     - - - - - - - - - - - - - - - - - - - -x
13
14     JUNET CAIDOR,
15
16                       Plaintiff-Appellant,
17
18                 - v.-
19
20     ONONDAGA COUNTY, SHERYL KARPINSKI,
21     SHAUN MCCARTHY, JOHN BALLONI,
22     MAUREEN CRANER and TEDDY SPOONER,
23
24                       Defendants-Appellees.
25
26     - - - - - - - - - - - - - - - - - - - -x
27

28           Before:             JACOBS, Chief Judge, POOLER and SACK,
29                               Circuit Judges.
30
31           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.      For the following reasons, we conclude that

36     Caidor waived his right to appeal the magistrate’s order.

37     Judge Pooler dissents in a separate opinion.
 1                               PHILLIP G. STECK, Cooper, Erving
 2                               & Savage LLP, Albany, NY, for
 3                               Plaintiff-Appellant.
 4
 5                               KAREN A. BLESKOSKI (Anthony P.
 6                               Rivizzigno, County Attorney, of
 7                               counsel), Syracuse, NY, for
 8                               Defendants-Appellees.
 9
10   DENNIS JACOBS, Circuit Judge:
11
12       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.       In

18   a separate summary order filed today, we affirm the grant of

19   summary judgment dismissing the complaint.     This opinion

20   concerns only the discovery order, which was entered while

21   Caidor was appearing pro se.

22       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.   Small v. Sec’y of Health & Human Servs.,

28   892 F.2d 15, 16 (2d Cir. 1989) (per curiam).    For the

29   reasons stated below, we decline to extend that rule to a

                                     2
1    magistrate judge’s decision on a non-dispositive matter.        We

2    therefore hold that Caidor waived his right to appeal

3    Magistrate Judge Peebles’s order.

4        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.     See

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.”   Sniado v. Bank Austria AG, 378 F.3d 210, 213

16   (2d Cir. 2004) (citation omitted), vacated on other grounds,

17   542 U.S. 917, 124 S. Ct. 2870 (2004).   For instance, “[w]e

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       Caidor, who is not a lawyer, was appearing pro se when

23   he opposed the defendants’ motion for summary judgment.     On


                                   3
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.   The appellate issue framed by the parties

6    is one of pure law, and is fully briefed by counsel.   For

7    these reasons, we exercise our discretion to consider this

8    issue.

9

10                            BACKGROUND

11       Caidor began working at the Onondaga County Department

12   of Emergency Communications on March 11, 2002.   Four days

13   later, he was fired after his supervisors learned that his

14   job application failed to disclose his criminal record.   On

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       Magistrate Judge Peebles, who oversaw pretrial

23   discovery in this matter pursuant to 28 U.S.C. § 636(b)(1),

                                   4
1    set a discovery deadline of April 16, 2004.   In May 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.   On July 29, 2004,

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       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.   The order did not advise

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).   Caidor filed no objection to the

20   order in the district court.   He challenges it now on

21   appeal.




                                    5
1                             DISCUSSION

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.”   Small, 892 F.2d at 16

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.   Accordingly, he may

10   not challenge those discovery rulings in this Court.”).

11       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            [A] pro se party’s failure to object to a
15            magistrate’s report and recommendation within
16            the ten day time limit prescribed by 28 U.S.C.
17            § 636(b)(1) does not operate as a waiver of
18            the right to appellate review of the district
19            court’s adoption of the magistrate’s
20            recommendation unless the magistrate’s report
21            explicitly states that failure to object to
22            the report within ten (10) days will preclude
23            appellate review and specifically cites 28
24            U.S.C. § 636(b)(1) and rules 72, 6(a) and 6(e)
25            of the Federal Rules of Civil Procedure.

26   Small, 892 F.2d at 16.

27       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.   Compare Fed. R. Civ. P. 72(b)(2) (“Within 10 days

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.”)

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.    A party may not assign as error a defect in

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”).      So,

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       The Court in Small reasoned that even if the pro se

22   plaintiff

23               had attempted to locate the specific Federal
24               Rules of Civil Procedure cited at the end of

                                     7
1             the magistrate’s report, none of those rules
2             would have informed her of the potential
3             waiver of appellate review . . . To require a
4             pro se plaintiff . . . to wade through the
5             case law of this Circuit in order to preserve
6             her right to appellate review would be an
7             unreasonable burden.
8
9    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.   Small has been

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”).

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)).     This Circuit makes certain

3    allowances for pro se litigants.     We recognize that the

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.”     Traguth v. Zuck, 710 F.2d 90, 95

9    (2d Cir. 1983).   Nonetheless, “pro se litigants generally

10   are required to inform themselves regarding procedural rules

11   and to comply with them.”    Edwards v. INS, 59 F.3d 5, 8 (2d

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.    (One would have to be a lawyer

16   to believe that ‘sixty days’ is an elusive concept.)”).

17       “[T]his is not a case where a pro se litigant has

18   stumbled into a snare found only in our case law.”     LoSacco

19   v. Middletown, 71 F.3d 88, 92 (2d Cir. 1995).     If Caidor had

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.”     Small,




                                     9
1    892 F.2d at 16.1    Where, as here, reading the applicable

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.   Accordingly, we hold that a pro se litigant who

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   appellate review.



11                              CONCLUSION

12       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.




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