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919 F2d 140 Brown v. Secretary of Health and Human Services

919 F.2d 140

Jackie H. BROWN, Plaintiff-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 90-6168.

United States Court of Appeals, Sixth Circuit.

Dec. 3, 1990.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

ORDER

1

The plaintiff appeals the district court's judgment adopting the magistrate's recommendation to deny the plaintiff's application for Social Security disability insurance benefits. The defendant, Secretary of Health and Human Services, now moves for dismissal of the appeal on grounds that the plaintiff did not file objections to the magistrate's recommendations. The plaintiff responds in opposition.

2

The magistrate's "Findings of Fact, Conclusions of Law and Recommendations" was filed on June 27, 1990. It concluded with a notice that within ten days after being served, any party could serve and file written objections. Further, the notice stated "[i]f a party has objections, such objections must be filed within ten (10) days or further appeal is waived. Thomas v. Arn, 728 F.2d 813 (6th Cir.1984), aff'd, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)." The plaintiff did not file any objections, and the district court entered its judgment adopting the magistrate's recommendation on August 10, 1990.

3

This Court has held that the failure to file timely objections to a magistrate's report and recommendation under 28 U.S.C. Sec. 636(b)(1)(C) results in the waiver of a right to appeal a subsequent order and judgment of the district court adopting and approving that report. Thomas v. Arn, 728 F.2d 813 (6th Cir.1984), aff'd, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981). In the instant case the duty to file objections to avoid a waiver of appeal was clearly stated in the magistrate's report. Having failed to file objections, the plaintiff has waived his right to appeal the judgment for the defendant.

4

It is therefore ORDERED that the motion to dismiss is granted.