         09-0961-cv
         Passe v. City of New York Department of Corrections


                                 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 TO A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals for
 2       the Second Circuit, held at the Daniel Patrick Moynihan United
 3       States Courthouse, 500 Pearl Street, in the City of New York, on
 4       the 18th day of May, two thousand ten.
 5
 6       PRESENT:
 7                 AMALYA L. KEARSE,
 8                 ROBERT D. SACK,
 9                 DEBRA ANN LIVINGSTON,
10                      Circuit Judges.
11       _____________________________________
12
13       Ivalina Passe,
14
15                                   Plaintiff-Appellant,
16
17                         v.                                                 09-0961-cv
18
19       New York City Department of
20       Corrections,
21
22                                   Defendant,
23
24       City of New York,
25
26                      Defendant-Appellee.
27       _____________________________________
28
29
30       FOR PLAINTIFF-APPELLANT:                              Ivalina Passe, pro se, New York,
31                                                             NY.
32
33       FOR DEFENDANT-APPELLEE:                               Marta Ross, Assistant Corporation
1                                        Counsel, for Michael A. Cardozo,
2                                        Corporation Counsel of the City of
3                                        New York, New York, NY.

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

5    the Eastern District of New York (Korman, J., Go, M.J.).

6         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

7    DECREED that the judgment of the district court is AFFIRMED.

8         Appellant    Ivalina      Passe,   proceeding    pro   se,   appeals    the

9    district    court’s   judgment      adopting    the    magistrate       judge’s

10   recommendation and thereby granting Defendant-Appellee City of New

11   York’s motion to dismiss the action pursuant to Federal Rules of

12   Civil Procedure 37 and 41(b) for Passe’s failure to prosecute and

13   comply with court orders.        We assume the parties’ familiarity with

14   the underlying facts, the procedural history of the case, and the

15   issues on appeal.

16        Although this Court reviews a district court’s Rule 41(b)

17   dismissal   for   abuse   of    discretion,    “deference    is   due   to   the

18   district court’s decision to dismiss a pro se litigant’s complaint

19   only when the circumstances are sufficiently extreme.”             Spencer v.

20   Doe, 139 F.3d 107, 112 (2d Cir. 1998) (quoting Lucas v. Miles, 84

21   F.3d 532, 535 (2d Cir. 1996)) (internal quotation marks omitted).

22   In reviewing a Rule 41(b) dismissal, this Court considers: (1) the

23   duration of the delay caused by plaintiff’s failure to prosecute;

24   (2) whether the plaintiff was on notice that further delay would

25   result in dismissal; (3) whether the defendant was likely to be


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1    prejudiced by further delay; (4) the district court’s interest in

2    managing its docket to alleviate calendar congestion, balanced

3    against the plaintiff’s right to an opportunity for a day in court;

4    and (5) whether the district court adequately assessed the efficacy

5    of a sanction less drastic than dismissal.    See U.S. ex. rel. Drake

6    v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004).   A district

7    court is not required to discuss each of these factors on the

8    record, but its decision is more likely to be upheld if this Court

9    has the benefit of its reasoning.   See Shannon v. Gen. Elec. Co.,

10   186 F.3d 186, 194 (2d Cir. 1999).

11        This Court may affirm on any basis supported by the record,

12   even if it is not one on which the district court relied.        See

13   Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 405 (2d Cir.

14   2006).   This Court has adopted the rule that failure to timely

15   object to a magistrate judge’s report and recommendation “may

16   operate as a waiver of any further judicial review of the decision,

17   as long as the parties receive clear notice of the consequences of

18   their failure to object.”   United States v. Male Juvenile (95-CR-

19   1074), 121 F.3d 34, 38 (2d Cir. 1997); see also Thomas v. Arn, 474

20   U.S. 140, 155 (1985) (holding that a Court of Appeals may adopt

21   such a rule); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir.

22   1988).   This rule, which applies to pro se as well as counseled

23   litigants, is “a nonjurisdictional waiver provision whose violation

24   we may excuse in the interests of justice.”   Roldan v. Racette, 984


                                     3
1    F.2d 85, 89 (2d Cir. 1993).       Our discretion to do so “is exercised

2    based on, among other factors, whether the defaulted argument has

3    substantial merit or, put otherwise, whether the magistrate judge

4    committed plain error in ruling against the defaulting party.”

5    Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d

6    162, 174 (2d Cir. 2000).         In this case, the magistrate judge’s

7    report and recommendation gave clear notice that objections were to

8    be filed by January 23, 2009, and warned that failure to file

9    objections waived the right to appeal.

10        Passe did not file her objections until March 5, 2009, well

11   after her deadline, and indeed well after the district court had

12   adopted the report and recommendation.        Thus, she waived her right

13   to appeal.    We have examined the merits sufficiently to satisfy

14   ourselves    that   none   of   Appellant’s   arguments   on   appeal   have

15   substantial merit, and they therefore do not warrant “excus[ing]

16   the default in the interests of justice.”        Thomas v. Arn, 474 U.S.

17   at 155. Accordingly, we AFFIRM the judgment of the district court.
18
19
20
21                                       FOR THE COURT:
22                                       Catherine O’Hagan Wolfe, Clerk
23
24
25




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