Joseph William Caise, Jr., Plaintiff-appellant, v. Gary D. Payne, Judge, Fayette Circuit Court; Kevin Horne,judge, Fayette Circuit Court; Commonwealth Ofkentucky, Defendants-appellees, 47 F.3d 1167 (6th Cir. 1995)

ORDER

Joseph William Caise, Jr., appeals a district court grant of summary judgment for defendants in this civil rights action filed under 42 U.S.C. § 1983. The 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).

Plaintiff filed his complaint in the district court alleging that he was wrongfully imprisoned for 90 days for contempt of court in 1992 for failure to pay a child support obligation. Plaintiff named the two defendant state judges in unspecified capacities and sought declaratory and injunctive relief and unspecified money damages. Defendants moved to dismiss the complaint or for summary judgment, and plaintiff responded in opposition. The magistrate judge recommended that summary judgment for defendants be granted, and plaintiff filed no objections but filed a "motion to proceed" and a motion for the appointment of counsel. The district court adopted the magistrate judge's recommendation and granted summary judgment for defendants. Plaintiff requests the appointment of counsel and contends that he was denied his right to a trial by jury.

Upon consideration, we affirm the judgment of the district court for the reasons stated in its opinion and order filed June 7, 1994. Plaintiff has waived his right to appellate review by failing to object to the magistrate judge's report and recommendation. See United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). Although filed within the period for objections to the magistrate judge's report, plaintiff's "motion to proceed" is inadequate to preserve plaintiff's right to appeal even if construed as an objection to the magistrate judge's report and recommendation. See Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Moreover, plaintiff's complaint is clearly without merit.

Accordingly, plaintiff's request for counsel is denied and the judgment of the district court is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.