william-l-wilson-bryan-breckenridge-v-james-rhodes-governor-george-f , 869 F.2d 1494 ( 1989 )

869 F.2d 1494

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
William L. WILSON, Plaintiff-Appellant,
Bryan Breckenridge, Plaintiff,
v.
James RHODES, Governor; George F. Denton; David McKeen;
R.C. Marshall; Robert Ellison, Capt.; Gus E.
Chavilias, Lt.; James Laverick,
Defendants- Appellees.

No. 88-3617.

United States Court of Appeals, Sixth Circuit.

Feb. 16, 1989.

Before KEITH, BOYCE F. MARTIN Jr. and RYAN, Circuit Judges.

ORDER

1

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

William Wilson, an Ohio prisoner represented by counsel, seeks to appeal the judgment of the district court entered in favor of the defendants in this civil rights action filed pursuant to 42 U.S.C. Sec. 1983.

3

Wilson alleged that prison authorities retaliated against him through cell searches, threats, intimidation and issuance of disciplinary tickets for the exercise of his first amendment right of access to the courts. The matter was heard in a two day trial before a United States magistrate, who recommended judgment for the defendants. The magistrate concluded that the defendants were not cognizant of Wilson's prior litigation, and had not retaliated against him. No objections to the magistrate's report and recommendation were filed, and the district court adopted the magistrate's findings and conclusions, entering judgment in favor of the prison officials.

4

On appeal, the defendants seek dismissal on the ground that plaintiff failed to comply with the objection requirement of Thomas v. Arn, 474 U.S. 140 (1985). In response, counsel for the plaintiff states she did not read the magistrate's notice contained in the report and recommendation warning that an appeal would be waived if objections were not filed within ten days.

5

Upon review, we affirm the judgment of the district court. Although the failure of the plaintiff to file objections to the report and recommendation of the magistrate does not affect this court's subject matter jurisdiction, see Kent v. Johnson, 821 F.2d 1220, 1222-23 (6th Cir.1987), the failure to object after being specifically advised to do so constitutes a waiver of the right to appeal pursuant to the rule of Thomas v. Arn, 474 U.S. 140 (1985). See also United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). Neither does the record demonstrate exceptional circumstances in this case requiring appellate review to promote the "interests of justice." cf. Kent, F.2d 821 at 1222-23.

6

Accordingly, the motion to dismiss is denied, and the judgment of the district court is affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.