Unpublished Dispositiondarwin Gravitt, Plaintiff-appellant, v. Everett Elkins, Defendant-appellee, 877 F.2d 62 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 877 F.2d 62 (6th Cir. 1989) June 20, 1989

Before KENNEDY, RALPH B. GUY, Jr. and ALAN E. NORRIS, Circuit Judges.


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, briefs of the parties, and plaintiff's motions for miscellaneous relief, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Plaintiff filed a pro se civil rights complaint and amended complaint under 42 U.S.C. § 1983. Court-appointed counsel also filed an amended complaint. Those complaints alleged that plaintiff was improperly placed in administrative segregation, assaulted and denied access to the courts. He also alleged that a state employee improperly conducted a disciplinary hearing, that officials interfered with correspondence and that officials conspired to maintain his placement in administrative segregation. The magistrate filed on February 17, 1988, a report and recommendation that summary judgment be entered for the defendants. The document specifically advised that any objections be filed within 10 days and that failure to file objections waived the right to appeal. No objections were filed. The district court adopted the magistrate's report and recommendation by order and judgment entered April 6, 1988. Plaintiff appealed.

The failure to file timely objections to a magistrate's report and recommendation after being advised to do so waives the right to appeal. United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). The court may choose not to apply Walters if exceptional circumstances are present warranting an exception to the rule in the "interests of justice." See Kent v. Johnson, 821 F.2d 1220, 1222-23 (6th Cir. 1987). Such exceptional circumstances are not present in this case.

It is ORDERED that the plaintiff's motions for miscellaneous relief be denied and the judgment of the district court be affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.