Herbert William Dailey, Plaintiff-appellant, v. Edward Stoll, Probation Officer, et al., Defendants-appellees, 980 F.2d 729 (6th Cir. 1992)

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US Court of Appeals for the Sixth Circuit - 980 F.2d 729 (6th Cir. 1992) Dec. 1, 1992

Before DAVID A. NELSON and BOGGS, Circuit Judges, and BERTELSMAN, Chief District Judge.* 

ORDER

Herbert William Dailey, a pro se Michigan prisoner, appeals a district court's judgment dismissing his civil rights action filed under 42 U.S.C. § 1983. 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).

Seeking monetary, declaratory, and injunctive relief, Dailey sued numerous employees of the Michigan Department of Corrections in their individual and official capacities. He alleged that the defendants violated his Eighth Amendment right to be free from cruel and unusual punishment when they failed to protect him from assaults from other inmates and failed to provide him with a second hearing aid.

On December 13, 1991, a magistrate judge recommended dismissing Dailey's civil rights complaint. At the end of the report it was conspicuously noted that Dailey had ten days to file his objections to the magistrate judge's report and recommendation and that failure to file objections could constitute a waiver of any further right of appeal. On January 10, 1992, Dailey filed a motion for the enlargement of time in which to file his objections to the magistrate judge's report. The district court granted Dailey's motion, giving him until February 21, 1992 to file his objections. However, Dailey did not file any objections. On March 30, 1992, the district court adopted the report and recommendation of the magistrate judge and dismissed the complaint. The district court specifically noted that Dailey had failed to file objections to the magistrate judge's report and recommendation within the established time period. Although the district court order makes reference to the fact that Dailey filed a dismissal request, there is no such request contained in the district court's record.

Dailey has filed a timely appeal. In his brief, he continues to argue the merits of his Eighth Amendment claim that the defendants failed to protect him from assaults from other inmates. However, he makes no mention that he was denied a second hearing aid. Both parties have filed briefs. He has filed a motion to strike the joint appendix.

Upon review, we conclude that Dailey has waived appellate review of his claims due to his failure to file objections to the magistrate judge's report. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).

Accordingly, we deny his motion to strike the joint appendix and affirm the judgment of the district court. Rule 9(b) (3), Rules of the Sixth Circuit.

 *

The Honorable William O. Bertelsman, Chief U.S. District Judge for the Eastern District of Kentucky, sitting by designation