Leonard E. Smith v. Sgt. Franklin

872 F.2d 1028, 1989 U.S. App. LEXIS 4648, 1989 WL 33099

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 6, 1989
• Docket: 87-6149
• Status: Unpublished

Opinion

872 F.2d 1028

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Leonard E. SMITH, Plaintiff-Appellant,
v.
Sgt. FRANKLIN, Defendant-Appellee.

No. 87-6149.

United States Court of Appeals, Sixth Circuit.

April 6, 1989.

Before MERRITT and DAVID A. NELSON, Circuit Judges, and LIVELY, Senior Circuit Judge.

ORDER

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).

Plaintiff filed a civil rights action under 42 U.S.C. Sec. 1983 against defendant Franklin, an employee of the institution wherein plaintiff is incarcerated. The case was referred to a magistrate who conducted an evidentiary hearing and determined that the complaint was frivolous as that term is used in 28 U.S.C. Sec. 1915(d). Plaintiff did not file objections to the magistrate's report despite being advised of the possible waiver of further appellate review for failure to object. The district court adopted the magistrate's report and recommendation and the instant appeal followed. The parties have briefed the issues, plaintiff proceeding pro se.

Failure to object to an adverse magistrate's report and recommendation, after being advised of the consequences, constitutes a waiver of further appellate review. Thomas v. Arn, 474 U.S. 140 (1985). The record before us plainly reflects plaintiff's failure to file objections to the magistrate's report even after being advised of the consequences of not objecting. Plaintiff has waived further review of this decision.

Accordingly, the district court's judgment is affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.