904 F. 2d 709 - Weaver v. Walters

Dennis L. Weaver, an Ohio state prisoner, moves for the appointment of counsel on appeal from the district court's judgment dismissing his civil rights complaint filed under 42 U.S.C. Sec. 1983. 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).

Weaver filed suit against the head cashier of the Southern Ohio Correctional Facility and an unknown deputy clerk of the district court, seeking injunctive and declaratory relief, and compensatory and punitive damages. The complaint alleged that the cashier had requested that a complaint by Weaver in another action be returned to him, and that the deputy clerk had complied, thus delaying the filing of the complaint. In a report issued on May 16, 1989, the magistrate recommended that defendants' motion to dismiss for failure to state a claim be granted. After reviewing the record and noting that no objections to the magistrate's report had been filed, the district court adopted this recommendation and, on June 7, 1989, dismissed the action.

Upon consideration, we conclude that the district court's judgment should be affirmed, as Weaver waived his right to appeal by failing to file objections to the magistrate's report. See Thomas v. Arn, 474 U.S. 140, 155 (1985). Moreover, the dismissal was proper, as Weaver did not state a claim of denial of access to the courts. See Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.1985).

Accordingly, the motion for counsel is denied and the district court's judgment is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.