Robert Francisco v. Secretary of Health and Human Services , 863 F.2d 883 ( 1988 )

863 F.2d 883

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Robert FRANCISCO, Plaintiff-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 88-1473.

United States Court of Appeals, Sixth Circuit.

Dec. 1, 1988.

Before KEITH and KRUPANSKY, Circuit Judges, and CONTIE, Senior Circuit Judge.

ORDER

1

The plaintiff appeals the summary judgment upholding the Secretary's denial of social security disability benefits to plaintiff. The defendant now moves for summary affirmance of the district court's decision.

2

The plaintiff's action in the district court was referred to a magistrate who recommended that the defendant's motion for summary judgment be granted. The report concluded with the following paragraph:

3

Any objections to this Report and Recommendation must be filed within ten (10) days of its service. 28 U.S.C. Sec. 636(b)(1); Local Rules 10(c) and C-4. Failure to file objections within this specific time constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); Ivey v. Wilson, No. 85-5903, slip op. at 14 (6th Cir. Nov. 4, 1987); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

4

The plaintiff did not file objections to the report and the district court entered its order adopting the magistrate's report and granting summary judgment to the defendant 31 days later.

5

This court has repeatedly held that the failure to file timely objections to a magistrate's report and recommendation under 28 U.S.C. Sec. 636(b)(1)(c) results in the waiver of a right to appeal a subsequent order and judgment of the district court adopting and approving that report. Thomas v. Arn, 728 F.2d 813 (6th Cir.1984), aff'd 474 U.S. 140 (1986); United States v. Walters, 638 F.2d 947 (6th Cir.1981). In Thomas v. Arn, the United States Supreme Court noted that "[t]he Sixth Circuit, by precluding appellate review of any issue not contained in objections, prevents a litigant from sand bagging the district judge by failing to object and then appealing." 474 U.S. at 147-48. In this action no objections were filed, therefore the plaintiff waived his right to appeal the summary judgment entered for the defendant.

6

It is ORDERED that the motion to summarily affirm the decision of the district court is granted and the district court's judgment on February 29, 1988 is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.