Michael Papaioan, Plaintiff-appellant, v. Merideth, Officer; Brewer, Officer, Defendants-appellees, 7 F.3d 234 (6th Cir. 1993)

ORDER

Michael Papaioan, a pro se federal prisoner, appeals a district court judgment dismissing his civil rights action filed under the doctrine announced in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 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).

Seeking monetary damages, Papaioan sued two federal prison guards (Merideth and Brewer) employed at the Federal Correctional Facility in Milar, Michigan. Papaioan alleged that the defendants violated his Eighth Amendment right to be free of cruel and unusual punishment when they failed to prevent an assault on him, declining to take any action to intervene after the assault began. Following a review of the defendants' motion to dismiss or for summary judgment and Papaioan's response, the magistrate judge filed a report recommending granting summary judgment to the defendants; Papaioan did not file any objections to this report, and the district court adopted the recommendation and dismissed the complaint. Papaioan has filed a timely appeal and the appellees have moved the court to dismiss this appeal because Papaioan failed to file objections to the magistrate judge's report and recommendation.

Initially, we note that the appellees' motion to dismiss is not appropriate because it is not premised on this court's lack of jurisdiction over this appeal. Rule 8(a), Rules of the Sixth Circuit.

Nonetheless, we affirm the district court's judgment because Papaioan has waived appellate review of his claims by not filing objections to the magistrate judge's report. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Willis v. Sullivan, 931 F.2d 390, 400-01 (6th Cir. 1991).

Accordingly, we deny the appellees' motion to dismiss and affirm the district court's judgment. Rule 9(b) (3), Rules of the Sixth Circuit.