OpenJurist

919 F2d 738 Buchanan v. T Wigginton

919 F.2d 738

Calvin BUCHANAN, Plaintiff-Appellant,
v.
John T. WIGGINTON, Secretary, Corrections Cabinet, Steve
Berry, Branch Classification Manager, Defendants-Appellees.

No. 90-5586.

United States Court of Appeals, Sixth Circuit.

Dec. 6, 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Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

1

Before BOYCE F. MARTIN, Jr. and NATHANIEL R. JONES, Circuit Judges, and EDGAR, 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 appellant's brief, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

Calvin Buchanan, a pro se Kentucky prisoner, appeals from a district court judgment dismissing his civil rights action filed under 42 U.S.C. Sec. 1983. Additionally, Buchanan requests the appointment of counsel and a transcript at government expense. Seeking monetary and injunctive relief, Buchanan claimed that he was transferred to a maximum security institution in retaliation for aiding fellow inmates with their legal claims. The defendants are the Secretary of the Corrections Cabinet and the Branch Classification Manager at Frankfort, Kentucky.

4

Both parties moved for summary judgment. The matter was referred to a magistrate who issued a report recommending that the defendants' motion for summary judgment be granted. The report and recommendation contained the warning that failure to object within ten days of service of the report and recommendation would constitute a waiver of the right to appeal. The district court, upon noting that Buchanan failed to file objections within the time period required by law, adopted the report and recommendation on April 16, 1990, and dismissed the complaint. This appeal followed.

5

Upon review, we affirm the judgment of the district court. Although the failure of Buchanan to file objections to the magistrate's report and recommendation does not affect this court's subject matter jurisdiction, see Kent v. Johnson, 821 F.2d 1220, 1222-23 (6th Cir.1987), the failure to object after being specifically advised to do so constitutes a waiver of the right to appeal. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). The record reflects that Buchanan failed to file any objections within the prescribed time frame. Consequently, Buchanan has waived his right to appellate review by this court. Moreover, the record does not disclose such exceptional circumstances in this case as to warrant dispensing with the objection requirement. Cf. Kent, 821 F.2d at 1222-23. Buchanan clearly failed to factually rebut the evidence that neither defendant had any personal retaliatory or punitive involvement in his transfer and the evidence of institutional security reasons propounded by the defendants.

6

Accordingly, the request for counsel and a transcript at government expense is hereby denied and the district court's judgment affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.

*

The Honorable R. Allan Edgar, U.S. District Judge for the Eastern District of Tennessee, sitting by designation