Unpublished Dispositionlee R. Wallace, Plaintiff-appellant, v. Secretary of Health and Human Services, Defendant-appellee, 805 F.2d 1037 (6th Cir. 1986)

Annotate this Case
US Court of Appeals for the Sixth Circuit - 805 F.2d 1037 (6th Cir. 1986)

Oct. 3, 1986


Before KEITH and WELLFORD, Circuit Judges, and PECK, Senior Circuit Judge.


ORDER

The plaintiff appeals the judgment affirming the Secretary's denial of social security disability benefits. He now moves for the appointment of counsel. That motion was referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit.

The plaintiff's complaint was referred to a Magistrate who found substantial evidence in the administrative record to support the Secretary's conclusion the plaintiff was not entitled to disability benefits. The Magistrate therefore filed a report on March 31, 1986, recommending judgment be entered for the Secretary. The report concluded with the following caveat:

ANY OBJECTIONS to this Report and Recommendation must be filed within ten (10) days of its service. 28 U.S.C. § 636(b) (1). Failure to file objections within the specified time constitutes a waiver of any further right of appeal. Thomas v. Arn, 54 U.S.L.W. 4032 (U.S. Dec. 4, 1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

The plaintiff did not file objections to the report and the district court entered judgment for the Secretary on April 29, 1986. This timely appeal followed.

This Court repeatedly has held that the failure to file timely objections to a Magistrate's report and recommendation under 28 U.S.C. § 636(b) (1) (C) results in the waiver of the right to appeal a subsequent order and judgment of the district court adopting and approving that report. Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984), aff'd, --- U.S. ----, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). There being no objections filed in this action, the plaintiff waived the right to appeal the judgment on his disability claim. We also conclude the district court did not err in denying the motion to remand the plaintiff's claim for readjudication. The basis for such proposed remand had no application to the plaintiff's claimed disabilities.

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. Therefore,

It is ORDERED further that the district court's judgment of April 29, 1986, be and it hereby is affirmed. Rule 9(d) (2), Rules of the Sixth Circuit.