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., 

, 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.” 

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


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 1   recommendations to which [one] objected and why” are insufficient to preserve appellate review.

 2   See Mario v. P&C Food Mkts., Inc., 

, 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, 

, 102 (2d Cir.

10   2007) (emphasis omitted); see also Heck v. Humphrey, 

, 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
18




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