786 F. 2d 1166 - Lenvill Spencer v. Ohio Casualty Group Lexington Kentucky Henry M Schagene

E.D.Ky.

BEFORE: KENNEDY, CONTIE, Circuit Judges and GIBSON, District Judge*.

Plaintiff filed this pro se civil rights action under 42 U.S.C. Sec. 1983. The case was referred to a magistrate under 28 U.S.C. Sec. 636(b), whorecommended that the complaint be dismissed for failure to state a claim. The district court adopted the magistrate's report and dismissed the complaint. Plaintiff filed a timely appeal. Defendant Henry M. Schagene has moved to dismiss the appeal on the grounds that plaintiff waived his right to appeal. The appeal has been referred to a panel of this Court pursuant to Sixth Circuit Rule 9(a). Upon examination of plaintiff's brief and the record, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

The record reveals that plaintiff failed to file objections to the magistrate's report and recommendation. The magistrate's report clearly stated that the parties were required to file objections or else waive the right to appeal. One month after the magistrate's report was filed, the district court noted that no objections had been filed, adopted the magistrate's report and recommendation and dismissed the complaint. Under these circumstances, plaintiff waived his right to appeal. See Thomas v. Arn, ---- U.S. ----, 54 U.S.L.W. 4032 (U.S. Dec. 4, 1985); Patterson v. Mintzes, 717 F.2d 284, 287-88 (6th Cir. 1983); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).

Accordingly, it is ORDERED that the motion to dismiss the appeal is granted and the appeal is dismissed. Sixth Circuit Rule 9(d)(2).