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Franco v. Johnson

United States Court of Appeals, Second Circuit
Nov 19, 2007
No. 06-5251-cv (2d Cir. Nov. 19, 2007)

Opinion

No. 06-5251-cv.

November 19, 2007.

UPON DUE CONSIDERATION, of this appeal from a judgment entered in the United States District Court for the Eastern District of New York (Korman, J.), it is hereby ORDERED, ADJUDGED AND DECREED that the judgment of the district court is AFFIRMED.

Appearing for Plaintiff-Appellant: Anthony M. Franco, pro se, Brooklyn, NY.

Appearing for Defendants-Appellees: Deborah A. Brenner, Assistant Corporation Counsel, for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY.

PRESENT: HON. ROBERT A. KATZMANN, HON. RICHARD C. WESLEY, Circuit Judges.

The Honorable Thomas J. Meskill, who was a member of this panel, died prior to oral argument, and the appeal is being decided by the remaining two members of the panel, who are in agreement. See 2d Cir. Interim R. 0.14(b).


Appellant Anthony M. Franco, pro se, appeals from a September 26, 2006 judgment of the United States District Court for the Eastern District of New York (Korman, J.) dismissing Appellant's amended complaint. We presume the parties' familiarity with the facts and procedural history of the case.

On appeal, Appellant does not raise any claims regarding the underlying dismissal of his amended complaint, or the granting of the defendants' summary judgment motion. Therefore, it is arguable that he has waived any and all challenges to the district court's judgment. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). Moreover, because Appellant failed to file objections to the magistrate judge's report and recommendation, he has waived his right to appellate review. See DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000); but see Thomas v. Arn, 474 U.S. 140, 155 (1985) (since "the rule is a non-jurisdictional waiver provision," the Court "may excuse the default in the interests of justice"). This Court has found that the interests of justice test is not met in a case in which the magistrate judge's decision "was not clearly wrong." Wesolek v. Canadair Ltd., 838 F.2d 55, 59 (2d Cir. 1988).

An independent review of the record and the relevant case law reveals that the magistrate judge properly concluded that Appellees' motion for summary judgment should be granted and that Appellant's amended complaint should be dismissed. Therefore, the magistrate judge's decision was not "clearly wrong," and thus, Appellant has waived appellate review of the merits of the district court's adoption of the magistrate judge's report and recommendation. See DeLeon, 234 F.3d at 86; Wesolek, 838 F.2d at 59.

Accordingly, the judgment of the district court is AFFIRMED.


Summaries of

Franco v. Johnson

United States Court of Appeals, Second Circuit
Nov 19, 2007
No. 06-5251-cv (2d Cir. Nov. 19, 2007)
Case details for

Franco v. Johnson

Case Details

Full title:Anthony M. Franco, Plaintiff-Appellant, v. Larry Johnson, John Pollon…

Court:United States Court of Appeals, Second Circuit

Date published: Nov 19, 2007

Citations

No. 06-5251-cv (2d Cir. Nov. 19, 2007)