clifford-t-caudill-v-louis-sullivan-united-states-secretary-of-health , 905 F.2d 1537 ( 1990 )

905 F.2d 1537

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Clifford T. CAUDILL, Plaintiff-Appellant,
v.
Louis SULLIVAN, United States Secretary of Health and Human
Services, Reed Thomas, District Manager of the U.S.
Department of Health & Human Services, Jeff Reynolds,
Tennessee Commissioner of Corrections, Defendants-Appellees.

No. 89-6189.

United States Court of Appeals, Sixth Circuit.

June 22, 1990.

1

Before KRUPANSKY and ALAN E. NORRIS, Circuit Judges, and WENDELL A. MILES, Senior District Judge.*

ORDER

2

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 record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

Clifford Caudill brought this action to contest the Secretary's denial of disability benefits pursuant to 42 U.S.C. Sec. 402(x)(1). The matter was referred to a magistrate who recommended the case be dismissed. The district court adopted the recommendation over plaintiff's objections. This appeal followed the agreed dismissal of defendant Reynolds. The parties have briefed the issues, Caudill appearing without counsel.

4

Upon consideration, we agree with the district court that the complaint was out of time. The action was filed well beyond the statutory limitation period and the extension granted. No waiver of this defense is apparent.

5

Accordingly, for these reasons and for the reasons set forth in the magistrate's report of January 13, 1989 and adopted by order of June 19, 1989, the district court's order is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.

*

The Honorable Wendell A. Miles, Senior U.S. District Judge for the Western District of Michigan, sitting by designation