Unpublished Dispositionrichey Bills, Plaintiff-appellant, v. Perry Johnson, Dale Flotz; and E. Scott, Defendants-appellees, 772 F.2d 905 (6th Cir. 1985)

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US Court of Appeals for the Sixth Circuit - 772 F.2d 905 (6th Cir. 1985) 8/26/85

E.D. Mich.

AFFIRMED

ORDER

BEFORE: MARTIN and CONTIE, Circuit Judges; and HOGAN, Senior District Judge.* 

The plaintiff appeals the order dismissing his pro se prisoner's civil rights action. He now moves for the appointment of counsel to aid him on appeal. That motion was referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit.

The plaintiff filed this action asserting prison officials failed to protect him from an assault by other prisoners and also failed to give him adequate medical attention thereafter. The defendants filed a motion to dismiss or, in the alternative, for summary judgment. The matter was referred to a Magistrate who entered a report on December 26, 1984 concluding the plaintiff failed to state valid claims and recommending the motion to dismiss be granted. The report concluded with the following language:

The parties are hereby informed that objections may be filed to this Report and Recommendation within 10 days of receipt of a copy thereof as provided for in 28 U.S.C. § 636(b) (1) (C) and that failure to file objections may constitute a waiver of any further right to appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981) states that 'a party shall file objections with the distsict [sic] court or else waive right to appeal.'

The plaintiff did not file objections to the report and recommendation. On February 26, 1985, the district court adopted the Magistrate's report and recommendation and entered an order of dismissal. This appeal followed.

In Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984), this Court recently affirmed its holding in Walters that the failure to file objections to a Magistrate's report and recommendation under 28 U.S.C. § 636(b) (1) (C) results in a waiver of the right to appeal the subsequent judgment of the district court. Therefore,

It is ORDERED that the motion for appointment of counsel be and it hereby is denied.

Upon examination of the record and the plaintiff's informal brief, this panel agrees unanimously that oral argument is not needed in this appeal. Rule 34(a), Federal Rules of Appellate Procedure. The plaintiff having waived the right to an appeal,

It is further ORDERED that the district court's order of dismissal be and it hereby is affirmed. Rule 9(d) (2), Rules of the Sixth Circuit.

 *

The Honorable Timothy S. Hogan, Senior U.S. District Judge for the Southern District of Ohio, sitting by designation