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United States Court of Appeals, Second Circuit.

Elizabeth PODLACH, Plaintiff-Appellant, v. VILLAGE OF SOUTHAMPTON, Southampton Village Police Department, Ashley E. Jones, Police Officer, Defendants-Appellees.1


Decided: April 25, 2019

Present: AMALYA L. KEARSE, RALPH K. WINTER, ROSEMARY S. POOLER, Circuit Judges. Appearing for Appellant: Elizabeth Podlach, pro se, Hampton Bays, N.Y. Appearing for Appellees: Jeltje deJong, Devitt Spellman Barrett, LLP, Smithtown, N.Y.


Plaintiff-Appellant Elizabeth Podlach, pro se, appeals from the June 9, 2017, judgment of the United States District Court for the Eastern District of New York (Feuerstein, J.), adopting the magistrate judge's report and recommendation and dismissing Podlach's amended complaint, which alleged civil rights violations and state law causes of action, for failure to state a claim. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

The district court referred Defendants-Appellees’ motion to dismiss Podlach's amended complaint to a magistrate judge. The magistrate judge issued a report and recommendation on May 11, 2017, recommending that the district court dismiss the amended complaint in its entirety for failure to state a claim. The report and recommendation stated that the parties were required to file any objections within fourteen days of receiving the report and that “[f]ailure to file objections within the specified time waives the right to appeal the District Court's order.” Podlach v. Village of Southampton, No. 14-cv-6954, 2017 WL 4350433, at *13 (E.D.N.Y. May 11, 2017). Podlach did not file any objections to the magistrate judge's report and recommendation, and the district court adopted the report and recommendation in its entirety.

“We have adopted the rule that failure to object timely to a magistrate judge's report may operate as a waiver of any further judicial review of the decision, as long as the parties receive clear notice of the consequences of their failure to object.” United States v. Male Juvenile (95-CR-1074), 121 F.3d 34, 38 (2d Cir. 1997). Waiver is not jurisdictional, and “we may excuse the default in the interests of justice” after considering, “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.” Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000) (internal quotation marks omitted).

The magistrate judge specifically articulated the consequences of a failure to file objections to the recommendation and report, and we decline to exercise our discretion to review the district court's judgment because the magistrate judge's recommendation was not plainly erroneous. Podlach has not pointed to any binding precedent indicating that the police officer who aimed his weapon at her acted objectively unreasonably “in light of the facts and circumstances confronting” him. Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Nor has Podlach established that the magistrate judge committed plain error in finding that there was probable cause for her arrest based on her plea of guilty to disorderly conduct, defeating her claims for false arrest and First Amendment retaliation.2

We have considered the remainder of Podlach's arguments and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


2.   Podlach's brief does not address her claims concerning the conditions of her confinement and access to counsel, her conspiracy claims, her state law claims, or the magistrate judge's recommendation not to grant additional leave to amend. These issues are thus abandoned. See LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995).

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