Wayne R. Berry, Plaintiff-appellant, v. State of Michigan, Defenant-appellee, 52 F.3d 324 (6th Cir. 1995)

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US Court of Appeals for the Sixth Circuit - 52 F.3d 324 (6th Cir. 1995) April 21, 1995

Before: MARTIN, RYAN and GIBSON*, Circuit Judges.


This pro se Michigan citizen appeals a district court judgment dismissing his civil rights complaint filed pursuant to 42 U.S.C. § 1983. The 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 and declaratory relief, Wayne Berry sued the State of Michigan alleging that on May 20, 1994, his vehicle was impounded by the Midland County Sheriff's Department. Berry alleges that five days later, he was able to recover the vehicle, but only after the payment of impound and storage fees. The unnumbered allegations of Berry's complaint go on to allege that the statute under which this action was taken, Mich.Comp.Laws Ann. Sec. 257.252d, is an unconstitutional deprivation of Berry's Fourteenth Amendment rights.

The defendant filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (6). The matter was referred to a magistrate judge who recommended that the motion to dismiss be granted. Berry did not object to the magistrate judge's report and recommendation. Thereafter, the district court adopted the report and recommendation as the opinion of the court and dismissed the complaint.

Upon review, we affirm the district court's judgment because Berry has waived his right to appeal. A party who does not file timely objections to a magistrate judge's report and recommendation, after being advised to do so, waives his right to appeal. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). The magistrate judge specifically advised Berry that failure to file objections would result in a waiver of his appeal. Despite the warning, Berry did not file any objections. While waiver may be excused under exceptional circumstances in the interests of justice, Thomas, 474 U.S. at 155 & n. 15, no such circumstances exist in this case.

Accordingly, the district court's judgment is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.

The Honorable John R. Gibson, Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation.