Unpublished Dispositioncurley Howse, Plaintiff-appellant, v. E. Stinson, Officer Brusco, Officer Faith, Officer Huff,sgt. Foxx, Cpl. Bell, Warden Love, Associatewarden Watkins, Cpl. Akridge, Andcorrectional Officer Mcintosh,defendants-appellees, 848 F.2d 191 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 848 F.2d 191 (6th Cir. 1988) May 4, 1988

Before KRUPANSKY and BOGGS, Circuit Judges and BAILEY BROWN, Senior Circuit Judge.


This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

This pro se Tennessee state prisoner filed a 42 U.S.C. § 1983 complaint against various officials and employees of the DeBerry Correctional Institute, expressing dissatisfaction with their response to property damage and assaults alleged to have been suffered by the plaintiff at the hand of a fellow inmate.

After conducting a hearing, the magistrate to whom the matter was referred recommended dismissing the complaint as frivolous pursuant to 28 U.S.C. § 1915(d). The district court subsequently adopted this recommendation and dismissed the complaint.

It is noted that the objections to the magistrate's report were not filed within the time period allowed. However, this default can be excused in this case as the late filing was due to the failure of a prison mail clerk to affix sufficient postage.

Notwithstanding the excuse for the late filing, upon consideration of the objections, we conclude that they were not specifically responsive to the magistrate's report, and hence, failed to preserve plaintiff's appeal. See Smith v. Detroit Fed. of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).

Accordingly, the order of the district court dismissing this complaint as frivolous is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.