Ingram v. Herrick , 475 F. App'x 793 ( 2012 )

11-1318-cv
Ingram v. Herrick
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 the Second Circuit, held at the
2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
3 the 19th day of April, two thousand twelve.
4
5 PRESENT:
6 ROBERT D. SACK,
7 DEBRA ANN LIVINGSTON,
8 GERARD E. LYNCH,
9 Circuit Judges.
10 _____________________________________
11
12 Weldon Ingram,
13
14 Plaintiff-Appellant,
15
16 v. 11-1318-cv
17
18 Stephen W. Herrick, Supreme Court Judge; David
19 Soares, District Attorney; Carmen M. Warner,
20 Assistant District Attorney; Gail Moore; Rachel
21 Coleman, Detective; Sei B. Gendham, M.D.; Michael
22 Radosevich, M.D.; Raymonda Tompkins, M.D.; Jean
23 Pierre, M.D.; David Robinson, M.D.; Brian L. Zerbe,
24 M.D.; Sergeant Williams; William Carter; Joseph C.
25 Teresi, Supreme Court Judge; Lisa Seidel, Social
26 Worker; Sue Tillman, Social Worker; Suzanne
27 Nicklas, Case Management Nurse; Kristina Comeau,
28 Social Worker; Tracey Rice; Dr. Mesmer, M.D.;
29 Stephanie, R.N.; Officer Nadareski, Police Officer.
30
31 Defendants-Appellees.
32
33 _____________________________________
1 FOR APPELLANT: Weldon Ingram, pro se, Attica, New York.
2
3 FOR APPELLEES: No appearance.
4 Appeal from a judgment of the United States District Court for the Northern District of New
5 York (Sharpe, J.; Treece, 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 Weldon Ingram (“Appellant”), proceeding pro se, appeals the district court’s sua
9 sponte dismissal of his complaint brought pursuant to 42 U.S.C. § 1983. We assume the parties’
10 familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
11 This Court has recognized that the failure to timely object to a magistrate judge’s report and
12 recommendation generally operates as a waiver of any further judicial review, as long as all parties
13 receive clear notice of the consequences of their failure to object. See Small v. Sec’y of Health &
14 Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam). A pro se party’s failure to object to a
15 magistrate judge’s report within the time limit prescribed by 28 U.S.C. § 636(b)(1) does not operate
16 as a waiver “unless the magistrate’s report explicitly states that failure to object to the report within
17 [fourteen] days will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1) and
18 [R]ules 72, 6(a) and 6(e) of the Federal Rules of Civil Procedure.” Id.19 Here, the magistrate judge gave Appellant adequate notice that he was required to file
20 objections to the report and recommendation, specifically informing him that failure to object to the
21 report would preclude appellate review and citing the pertinent statutory and civil rules. While
22 Ingram filed numerous letters addressing the report and recommendation, he did not make any
23 specific objections to the report. Objections “devoid of any reference to specific findings or
2
1 recommendations to which [one] objected and why” are insufficient to preserve appellate review.
2 See Mario v. P&C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002).
3 Were we to overlook Appellant’s waiver and review the decision below, we would affirm
4 based on our independent review of the record and relevant caselaw. See 28 U.S.C. §§ 1915(e),
5 1915A. Appellant, who admits he has been convicted in New York state court, seeks the dismissal
6 “of all charges or time serve[d] for all known and unknown charges.” Compl. at 4. When “a
7 prisoner’s victory in a § 1983 suit would necessarily demonstrate the invalidity of his conviction or
8 sentence,” the § 1983 suit must be dismissed, since a habeas petition is the appropriate vehicle by
9 which to request relief from illegal confinement. McKithen v. Brown, 481 F.3d 89, 102 (2d Cir.
10 2007) (emphasis omitted); see also Heck v. Humphrey, 512 U.S. 477, 481-82, 487 (1994).
11 We have considered all of Appellant’s arguments on appeal and have found them to be
12 without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED
13 and Appellant’s motion for default judgment is DENIED.
14
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
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