OpenJurist

840 F2d 17 Kimmel v. Ruckman

840 F.2d 17

Ronald KIMMEL, Plaintiff-Appellant,
v.
Mr. RUCKMAN, Mr. Lowe, and Mr. Thomson, Defendants-Appellees.

No. 87-5790.

United States Court of Appeals, Sixth Circuit.

Feb. 19, 1988.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

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

2

The plaintiff, a Tennessee prisoner, appeals the judgment of the district court which dismissed his 42 U.S.C. Sec. 1983 action as being frivolous under 28 U.S.C. Sec. 1915(d). In his complaint, plaintiff alleged that the defendants had subjected him to cruel and unusual punishment by their failure on several occasions to deliver his medication to his bedside. After holding an evidentiary hearing on the matter, the magistrate entered a report and recommendation in which he recommended that the plaintiff's action be dismissed for frivolity. The district court, over plaintiff's timely objections, adopted the report and dismissed the action by a notation order written on the report. No transcript of the evidentiary hearing was reviewed by the district court prior to dismissal.

3

Because the district court failed to review those portions of the transcript relevant to the plaintiff's objections, we are required to vacate the judgment of the district court and remand the case for de novo review.

4

Article III of the United States Constitution and 28 U.S.C. Sec. 636(b)(1)(C) both require that a de novo determination be made of those portions of the magistrate's report to which objections have been filed. Thornton v. Jennings, 819 F.2d 153, 154 (6th Cir.1987); United States v. Shami, 754 F.2d 670, 672 (6th Cir.1985). When a party challenges the evidentiary findings of the magistrate, the district court must, at a minimum, review "those portions of the transcript of evidence which are relevant to the particular findings that are under attack." Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir.1981). The district court failed to do this in the present case.

5

Accordingly, the judgment of the district court entered on June 12, 1987, is vacated and the case remanded pursuant to Rule 9(b)(6), Rules of the Sixth Circuit. The plaintiff's request for appointment of counsel on appeal is denied.