“Where parties receive clear notice of the consequences, failure timely to object to a magistrate’s report and recommendation operates as a waiver of further judicial review of the magistrate’s decision.”
How later courts described this case
- “Where parties receive clear notice of the consequences, failure timely to object to a magistrate’s report and recommendation operates as a waiver of further judicial review of the magistrate’s decision.”
- “[B]ecause the waiver rule is non jurisdictional, we ‘may excuse the default in the interests of justice.’”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------------X
JAMES JACOBS,
ORDER
16-CV-1242(GRB)(JMW)
-against-
DETECTIVE DARRYL AIKEN, et al.,
Defendant.
------------------------------------------------------------------X
GARY R. BROWN, United States District Judge:
Before the Court is the meticulously detailed, 14-page Report and Recommendation
(“R&R”) of U.S. Magistrate Judge James M. Wicks recommending that summary judgment be
entered in favor of defendant. Familiarity with Judge Wicks’s fine decision is assumed.
In reviewing a Report and Recommendation, the district court “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1). Where, as here, no objections are filed, the Court may adopt a report and
recommendation without de novo review. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does
not appear that Congress intended to require district court review of a magistrate’s factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those findings.”);
see also Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Where parties receive
clear notice of the consequences, failure timely to object to a magistrate’s report and
recommendation operates as a waiver of further judicial review of the magistrate’s decision.”); cf.
28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(3) (requiring de novo review after objections).
However, because the failure to file timely objections is not jurisdictional, a district judge may still
excuse the failure to object in a timely manner and exercise its discretion to decide the case on the
merits to, for example, prevent plain error. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003)
(“[B]ecause the waiver rule is non jurisdictional, we ‘may excuse the default in the interests of
justice.’”) (quoting Thomas, 474 U.S. at 155)). Although plaintiff has waived any objection to the
R&R and thus de novo review is not required, given plaintiff’s pro se status, the Court has
conducted a de novo review of the R&R in an abundance of caution.
The Court hereby fully adopts the R&R, the motion for summary judgment is granted, and
the Clerk will enter judgment and close the case.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED.
Dated: Central Islip, New York
September 28, 2021
/s/ Gary R. Brown
GARY R. BROWN
United States District Judge