NEAL v. SPOTA (2018)

SUMMARY ORDER

Appellant Brontie O'Neal, proceeding pro se, appeals the district court's dismissal of his 42 U.S.C. § 1983 claims against former Suffolk County District Attorney Thomas Spota, the “Suffolk County Municipality,” the Town of East Hampton, the East Hampton Town Police Department (“EHPD”), his court-appointed attorney Marianne Rantala, and Irene Foster, the complainant in a related criminal case, for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). O'Neal alleged that (1) Spota and the County of Suffolk (“county defendants”) maliciously prosecuted and defamed him; (2) the Town of East Hampton and the EHPD (“town defendants”) falsely arrested him; (3) Rantala provided inadequate representation during his criminal proceedings; and (4) Foster was liable for his false arrest because she lied to the police. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo the dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), accepting all factual allegations as true and drawing all reasonable inferences in plaintiff's favor. Biro v. Conde Nast, 807 F.3d 541, 544 (2d Cir. 2015). The complaint must plead “enough facts to state a claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), although that requirement is “inapplicable to legal conclusions,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

“[W]e liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest.” McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (quoting Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) ). However, pro se appellants must comply with Federal Rule of Appellate Procedure 28(a), which requires an appellant's brief to contain, “under appropriate headings and in the order indicated”:

(4) a jurisdictional statement ․ ; (5) a statement of the issues presented for review; (6) a concise statement of the case setting out the facts relevant to the issues submitted for review ․ ; (7) a summary of the argument ․ ; (8) the argument ․ ; [and] (9) a short conclusion stating the precise relief sought․

Fed. R. App. P. 28(a); see also Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998) (noting that Rule 28(a) “requires appellants in their briefs to provide the court with a clear statement of the issues on appeal”). Despite affording pro se litigants “some latitude” in meeting procedural rules, we “normally will not[ ] decide issues that a party fails to raise in his or her appellate brief.” Id. Moreover, “[a]n appellant's failure to comply with Rule 28 invites dismissal of the appeal.” Taylor v. Harbour Pointe Homeowners Ass'n, 690 F.3d 44, 48 (2d Cir. 2012).

O'Neal’s brief does not challenge the substance of the district court's January 12, 2017 dismissal of his claims against the county defendants or its September 19, 2017 order adopting the magistrate judge's recommendation to dismiss O'Neal’s claims against the town and individual defendants. Nor does his brief identify any issues on appeal, set forth coherent arguments, or cite the record or legal authority, as required under Rule 28. Despite the “latitude” we afford pro se litigants, O'Neal’s failure to comply with Rule 28 is fatal to his appeal. Moates, 147 F.3d at 209; Taylor, 690 F.3d at 48. Accordingly, because O'Neal fails to raise any issue regarding the district court's dismissals in his brief, he has waived his challenge to those issues before this Court. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.” (internal citation omitted) ).

Additionally, O'Neal waived his right to judicial review of the magistrate judge's report and recommendation (“R & R”) by failing to timely object. See Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992). This rule applies to pro se litigants if the magistrate judge expressly warns a pro se litigant that a failure to timely object will waive further judicial review and cites relevant statutory and civil rules authority. See Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015) (explaining that, where party received clear notice of the consequences, failure to timely file objections to the magistrate report operates as a waiver to further judicial review of the magistrate's decision); Frank, 968 F.2d at 300 (“[T]his Court requires the magistrate's report to warn the pro se litigant of the consequences of the failure to object.”). Here, the magistrate judge warned O'Neal at the end of the R & R, in bold lettering, that “[f]ailure to file objections within fourteen (14) days will preclude further review of this report and recommendation either by the District Court [or the] Court of Appeals.” See O'Neal v. Spota, No. 2:16-cv-00579, Dkt. No. 120 at 15 (E.D.N.Y. Aug. 28, 2017). Because O'Neal did not object to the magistrate judge's R & R recommending dismissal of his claims against the town and individual defendants despite having received an express warning about the consequences of his failure to do so, these claims are waived.

We have considered all of O'Neal’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.