Unpublished Dispositiondavis Lee Carter, Plaintiff-appellant, v. Aileen E. Love, Warden; Defendant-appellee,state of Tennessee, Defendant, 880 F.2d 1321 (6th Cir. 1989)

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and appellant's brief, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

David Lee Carter moves for counsel and miscellaneous relief, and appeals from the district court's order granting the defendant's motion for summary judgment and dismissing his 42 U.S.C. § 1983 prisoner civil rights suit.

Carter claimed that the living conditions at Deberry Correctional Institute violated his constitutional rights. Specifically, he claimed that he was exposed to inclement weather because windows throughout the prison were warped and broken. He also claimed that the prison foundation was unstable due to several large cracks in the floors and walls, and that a generator outside the inmate dining hall emits poisonous fumes which permeate the dining hall during all stages of food preparation and consumption. The defendant-appellee is the warden at Deberry. Carter asked for compensatory and punitive damages.

The parties filed cross motions for judgment, and after an evidentiary hearing before a magistrate, the magistrate recommended dismissal of the action. Despite being specifically advised to do so within 10 days, Carter never filed objections to the magistrate's report and recommendation. After more than 10 days had elapsed, the district court entered an order adopting the magistrate's report and recommendation as the order of the court.

Upon consideration, we affirm the district court's dismissal. A party who does not file timely objections to a magistrate's report and recommendation after being advised to do so waives his right to appeal. United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).

Accordingly, the motion for counsel and miscellaneous relief is denied and the district court's order is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.