Unpublished Dispositionmarcia Provencher, Plaintiff-appellant, v. Secretary of Health and Human Services, Defendant-appellee, 925 F.2d 1465 (6th Cir. 1991)

Before BOYCE F. MARTIN, Jr. and BOGGS, Circuit Judges, and BELL, District Judge.^* 

ORDER

Marcia Provencher appeals the district court's order granting summary judgment in favor of the defendants and denying the plaintiff's motion for summary judgment. The 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 briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Provencher sought review in the district court of the Secretary's determination that she was not entitled to disability insurance benefits or supplemental security income under Title II of the Social Security Act. See 42 U.S.C. §§ 416(i), 423. The matter was referred to a magistrate pursuant to 28 U.S.C. § 636(b) (1) (B), who recommended that the defendant's motion for summary judgment be granted. The magistrate's report and recommendation was filed on January 17, 1990. In this report, the parties were notified of their right to file objections within ten days after being served with a copy, pursuant to 28 U.S.C. § 636(b) (1) (C), and that failure to file objections may constitute a waiver of any further right to appeal. No objections were filed, and the district court, by order filed April 20, 1990, adopted the magistrate's report and recommendation.

This circuit has held that failure to timely object within ten days of service of a magistrate's report, where the parties are properly notified of that time limit, constitutes waiver of any party's right to appeal from the district court's entry of judgment in accord with the report and recommendation. United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). This "waiver rule" was subsequently upheld by the United States Supreme Court in Thomas v. Arn, 474 U.S. 140, 155 (1985). Provencher has not, to date, filed any objections or indicated on appeal what her specific objections to the magistrate's report might have been. Therefore, she has waived her right to further appeal pursuant to Sec. 636(b) (1), as interpreted and applied within this circuit.

Accordingly, Provencher's request for counsel, on appeal, is denied and the district court's order filed April 20, 1990, is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.