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863 F2d 883 Johnson v. Foltz

863 F.2d 883

Richard D. JOHNSON, Plaintiff-Appellant,
v.
Dale FOLTZ; Defendant-Appellee,
Robert Brown, Jr.; John Whelan, Defendants.

No. 88-1740.

United States Court of Appeals, Sixth Circuit.

Dec. 2, 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Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 and KRUPANSKY, Circuit Judges, and CONTIE, Senior Circuit Judge.

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, motion to dismiss, and appellant's brief, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

Richard Johnson brought this civil rights action under 42 U.S.C. Sec. 1983, claiming that the defendants violated his constitutional rights when they refused to allow him to participate in college classes while incarcerated. The defendants were the Director of the Michigan Department of Corrections, the warden and the deputy warden at Jackson State Prison. He requested monetary and injunctive relief.

3

The district court dismissed the Director of the Department of Corrections and the deputy warden since Johnson failed to state a cause of action against them. The court then reviewed the magistrate's report and recommendation, noted that Johnson failed to file any objections, then granted the defendant's motion to dismiss. Johnson raises the same claim on appeal.

4

Initially, we note that a motion to dismiss ordinarily may not be filed on grounds other than lack of jurisdiction. Rule 8(a)(1), Rules of the Sixth Circuit. Failure to file objections to the magistrate's report and recommendation does not go to subject matter jurisdiction. See Kent v. Johnson, 821 F.2d 1220, 1222-23 (6th Cir.1987). Thus, defendants' motion to dismiss is improper and will be denied.

5

Upon consideration of the cause, we affirm the district court's dismissal of the complaint. Johnson failed to file any objections within ten days of the date of service of the magistrate's report and recommendation, despite being specifically advised to do so. A party who does not file timely objections to a magistrate's report and recommendation after being advised to do so waives his right to appeal. United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981).

6

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