Unpublished Dispositionnicky Placido Rodriguez, Plaintiff-appellant, v. Thomas Lyzenga, Defendant-appellee, 918 F.2d 179 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 918 F.2d 179 (6th Cir. 1990) Nov. 13, 1990

Before KEITH, KENNEDY and SUHRHEINRICH, Circuit Judges.


ORDER

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).

Nicky Placido Rodriguez, a pro se Michigan prisoner, appeals the dismissal of his civil rights action filed pursuant to 42 U.S.C. § 1983. Seeking solely monetary damages, Rodriguez filed his complaint in the district court, alleging that the defendant, an officer with the vice unit of the Grand Rapids, Michigan Police Department, "violat [ed] my protected constitutional rights and releas [ed] confessed attackers into society [and] caus [ed] fear in my family--For taking my right to be secure in my home and equal protection of the law." The matter was referred to a magistrate who issued a report recommending that the defendant's motion 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 Rodriguez failed to file objections to the magistrate's report and recommendation within the time period required by law, adopted the report and recommendation in an order dated December 22, 1989, and granted the defendant's motion for summary judgment. On appeal, the defendant seeks dismissal on the ground that Rodriguez failed to comply with the objection requirement.

Upon review, we affirm the order of the district court. Although the failure of Rodriguez 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). The record reflects that Rodriguez failed to file any pleadings within the prescribed time frame which objected to the magistrate's report and recommendation. Consequently, Rodriguez has waived his right to appellate review by this court. Moreover, the record does not disclose such exceptional circumstances in this case as to warrant dispensing with the objection requirement. Cf. Kent, 821 F.2d at 1222-23.

Accordingly, the district court's order dated December 22, 1989, is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.