Unpublished Dispositionjackie H. Brown, Plaintiff-appellant, v. Secretary of Health and Human Services, Defendant-appellee, 919 F.2d 140 (6th Cir. 1990)

ORDER

The plaintiff appeals the district court's judgment adopting the magistrate's recommendation to deny the plaintiff's application for Social Security disability insurance benefits. The defendant, Secretary of Health and Human Services, now moves for dismissal of the appeal on grounds that the plaintiff did not file objections to the magistrate's recommendations. The plaintiff responds in opposition.

The magistrate's "Findings of Fact, Conclusions of Law and Recommendations" was filed on June 27, 1990. It concluded with a notice that within ten days after being served, any party could serve and file written objections. Further, the notice stated " [i]f a party has objections, such objections must be filed within ten (10) days or further appeal is waived. Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984), aff'd, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985)." The plaintiff did not file any objections, and the district court entered its judgment adopting the magistrate's recommendation on August 10, 1990.

This Court has held that the failure to file timely objections to a magistrate's report and recommendation under 28 U.S.C. § 636(b) (1) (C) results in the waiver of a right to appeal a subsequent order and judgment of the district court adopting and approving that report. Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984), aff'd, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). In the instant case the duty to file objections to avoid a waiver of appeal was clearly stated in the magistrate's report. Having failed to file objections, the plaintiff has waived his right to appeal the judgment for the defendant.

It is therefore ORDERED that the motion to dismiss is granted.