    07-5602-pr
    Pruitt v. Lewy


                      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.

         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 25th day of March, two thousand ten.

    PRESENT:
              WILFRED FEINBERG,
              ROBERT A. KATZMANN,
              PETER W. HALL,
                   Circuit Judges.
    _____________________________________

    Phelicia Pruitt,

                       Plaintiff-Appellant,

                 v.                                        07-5602-pr

    Dr. Lewy, Staff Physician Bedford
    Hills Correctional Facility,
    individually and in her official
    capacity,

                       Defendant-Appellee.

    _____________________________________

    FOR PLAINTIFF-APPELLANT:            Phelicia Pruitt, pro se, Bedford
                                        Hills, N.Y.

    FOR DEFENDANT-APPELLEE:             David Lawrence III, Assistant
                                        Solicitor General; Andrew M. Cuomo,
                                        Attorney General of the State of
                                        New York; New York, N.Y.
     Appeal from a judgment of the United States District Court

for the Southern District of New York (Kaplan, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

     Appellant Phelicia Pruitt, proceeding pro se, appeals the

district court’s grant of summary judgment on her 42 U.S.C.

§ 1983 claims in favor of Appellee.   We assume the parties’

familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.

     When reviewing de novo the district court’s decision to

grant summary judgment, we consider whether the district court

correctly concluded that there were no genuine issues of material

fact and that the moving party was entitled to judgment as a

matter of law.    See, e.g., Miller v. Wolpoff & Abramson, L.L.P.,

321 F.3d 292, 300 (2d Cir. 2003).    In determining whether there

are genuine issues of material fact, we are “required to resolve

all ambiguities and draw all permissible factual inferences in

favor of the party against whom summary judgment is sought.”

Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal

quotation marks omitted).   However, “conclusory statements or

mere allegations [are] not sufficient to defeat a summary

judgment motion.”    Davis v. State of New York, 316 F.3d 93, 100

(2d Cir. 2002).

     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

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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 (2d Cir. 1997); see also Wesolek v.

Canadair Ltd., 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. 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) ("Such

discretion is exercised based on, among other factors, whether

the defaulted argument has substantial merit or, put otherwise,

whether the magistrate judge committed plain error in ruling

against the defaulting party.”).

     Furthermore, an independent review of the record and

relevant case law reveals that the district court properly

adopted the magistrate judge’s recommendation to grant Appellee’s

motion for summary judgment.   We affirm for substantially the

same reasons stated by the magistrate judge in her thorough

September 25, 2007 report and recommendation.   We have considered

all of Appellant’s arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




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