Unpublished Dispositiondonald Kenneth Carlson, Plaintiff-appellant, v. Steve Horn, Robert Brown, Jr., Danny Berkshire, Defendants-appellees, 899 F.2d 1221 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 899 F.2d 1221 (6th Cir. 1990) April 13, 1990

Before RALPH B. GUY, Jr., and ALAN E. NORRIS, Circuit Judges, and CONTIE, Senior Circuit Judge.


The 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 briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Donald Kenneth Carlson, a pro se Michigan prisoner, appeals the dismissal of his civil rights action filed pursuant to 42 U.S.C. § 1983. Seeking a declaratory judgment and monetary damages, Carlson filed his complaint in the district court, alleging that defendants Horn and Berkshire had filed false misconduct reports against him, had directed a racial slur against him on one occasion, and that defendant Berkshire had, on one occasion, brandished a pocket knife in front of him. He further sued defendant Brown, in his capacity as Director of the Michigan Department of Corrections, alleging defendant Brown condoned or acquiesced in the acts of defendants Horn and Berkshire. The matter was referred to a magistrate who issued a report and recommendation, recommending that defendants' motion to dismiss or for summary judgment be granted. The report and recommendation contained the warning that failure to object within ten days of receipt of the report and recommendation would constitute a waiver of the right to appeal. The district court, upon noting that Carlson failed to file specific objections to the magistrate's report and recommendation, entered an order adopting the magistrate's report and recommendation and dismissing the action. On appeal, the defendants seek dismissal on the ground that Carlson failed to comply with the objection requirement of Thomas v. Arn, 474 U.S. 140 (1985).

Upon review, we affirm the judgment of the district court. Although the failure of Carlson to file objections to the report and recommendation of the magistrate does not affect this court's subject matter jurisdiction, see Kent v. Johnson, 821 F.2d 1220, 1222-23 (6th Cir. 1987), the failure to object after being specifically advised to do so constitutes a waiver of the right to appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed'n of Teachers, 829 F.2d 1370, 1373 (6th Cir. 1987); Wright v. Holbrook, 794 F.2d 1152, 1154-55 (6th Cir. 1986). Although it appears from the record that Carlson filed pleadings which the district court construed as objections to the magistrate's report, there is nothing in those pleadings to indicate that Carlson specifically objected to any particular recommendation. Because Carlson failed to effectively raise any specific objections to the magistrate's report and recommendation, he waived his right to appellate review by this court. Moreover, the record does not demonstrate exceptional circumstances in this case as to warrant dispensing with the objection requirement. Cf.Kent, 821 F.2d at 1222-23.

Accordingly, the judgment of the district court is affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.