Vasco Howard, Plaintiff-appellant, v. Lt. Taylor, et al., Defendants-appellees, 995 F.2d 1067 (6th Cir. 1993)

ORDER

Vasco Howard appeals the summary judgment for defendants in this civil rights action filed under 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Howard filed his complaint in the district court alleging that the defendant prison officials denied him due process in connection with prison disciplinary proceedings. Howard sought declaratory and injunctive relief and compensatory and punitive damages. Thereafter, Howard filed two motions for leave to file an amended complaint which were granted in part and denied in part by the magistrate judge.

Next, defendants were granted leave to file a motion for summary judgment out of time and Howard responded in opposition. The magistrate judge recommended that summary judgment for defendants be granted and Howard filed objections. The district court adopted the magistrate judge's recommendation and granted summary judgment for defendants.

On appeal, Howard essentially contends that the district court erred insofar as it denied his motion for leave to file an amended complaint. Upon consideration, we conclude that the district court did not abuse its discretion in denying the motions for leave to file an amended complaint because the proposed amendments did not raise valid constitutional claims. See Head v. Jellico Housing Auth., 870 F.2d 1117, 1123-24 (6th Cir. 1989); Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986) (per curiam). Howard's contention that he was not properly served with defendants' motion for summary judgment is without merit. Plaintiff's remaining claims on appeal were not asserted in the district court and are not cognizable in the first instance on appeal. See Taft Broadcasting Co. v. United States, 929 F.2d 240, 243-45 (6th Cir. 1991). Moreover, plaintiff waived his right to appeal the merits of the grant of summary judgment by his failure to object to this aspect of the magistrate judge's report and recommendation. See Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Finally, plaintiff may be deemed to have abandoned his underlying claim on appeal because he did not address the merits in his brief on appeal. See Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir. 1991), cert. denied, 112 S. Ct. 1481 (1992); McMurphy v. City of Flushing, 802 F.2d 191, 198-99 (6th Cir. 1986).

Accordingly, the judgment of the district court is affirmed pursuant to Rule 9(b) (3), Rules of the Sixth Circuit.