Noah King, Plaintiff-appellant, v. Robert Brown, Jr., Director, Michigan Department Ofcorrections; Joseph Abramajtys, Warden, Brooks Regionalcorrectional Facility; Joe Scott, Classification Directorat Brooks Regional Correctional Facility, Defendants-appellees, 948 F.2d 1289 (6th Cir. 1991)

ORDER

Noah King appeals the district court's order granting the defendants' motion for summary judgment in this civil rights case filed under 42 U.S.C. § 1983. The defendants include the director of the Michigan Department of Corrections, the warden at the Brooks Regional Correctional Facility in Muskegon, Michigan, and the classification director at that facility. King also moves this court for appointment of counsel, on appeal, and for a copy of transcripts at the government's expense.

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

In his complaint, King alleged: 1) he was subjected to cruel and unusual punishment by being forced to work or remain confined to his cell in spite of a documented back problem preventing him from working; and 2) he was denied due process by being denied a right to a hearing before being confined to his cell because of his classification as "unemployable." The matter was referred to a magistrate, who addressed the claims on the merits and recommended that the defendants' motion for summary judgment be granted. The magistrate's report notified the parties that objections to the report must be filed within ten days of the date of service or the parties would waive their right to appeal the district court's order. Thomas v. Arn, 728 F.2d 813, 814-15 (6th Cir. 1984), aff'd, 474 U.S. 140 (1985).

Upon review, this court concludes that the district court properly granted the defendants' motion for summary judgment and dismissed this case. King has not shown that the Michigan Department of Corrections employees tampered with or delayed his mail in any way, so as to interfere with his right of access to the courts or his mailing of objections to the magistrate's report and recommendation within the time specified. Therefore, the district court was correct in finding that King has waived his right to appeal, under the holding in Thomas v. Arn, and United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). Moreover, this matter does not present exceptional circumstances warranting review of the case in the interests of justice. Kent v. Johnson, 821 F.2d 1220, 1222-23 (6th Cir. 1987).

Accordingly, King's motions for counsel and for transcripts at the government's expense are denied, and the district court's order granting the defendants' motion for summary judgment is hereby affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.