993 F.2d 1547
Rose MECKLEY, Plaintiff-Appellant,
A. ALBERT, Case Manager; R. Quisenbury, Counselor; Riley,
Case Manager; Figlestahler, Unit Manager; Barbara
Montanez, Case Manager; Mary Todd; Teresa Henre, Unit
Staff Member; Robert Quinn, Legal Technician; Denise
Sheets, Receiving & Discharge Member; S. Mattingly, R & D
Staff Member; Jane Doe, R & D Staff Member; Prentice
Hollon, R & D Staff Member; Margaret Hambrick, Warden;
Richard Cole, Disciplinary Hearing Officer; John & Jane
Doe, members of the 2/8 mailroom staff; Director of Federal
Bureau of Prisons; John & Jane Doe, members of 4/1
FCI-Lexington Mailroom Staff; R. Duran, Supervisor of
mailroom staff; M. Taylor; Tim Hamby; Marsha Cvengrass;
Blevin; Thomas White; Morris White; Freeman; Neil Brown;
Ann Conatser; L. Gullett; Henry Norris; Three Unknown
Female Guards, Defendants-Appellees.
United States Court of Appeals, Sixth Circuit.
May 11, 1993.
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 MILBURN, RYAN and NORRIS, Circuit Judges.
Rose Meckley, a pro se litigant, appeals from an order of the district court dismissing her complaint filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
Meckley's complaint alleged, in essence, that she had been denied her First Amendment right of effective access to the courts, and that she had been retaliated against for exercising this right, and for filing grievances. Meckley filed her complaint when she was a federal prisoner. She has subsequently been released from incarceration. Both Meckley and the defendants moved for summary judgment. The magistrate judge's report recommended that the defendants' motion be sustained, and that Meckley's motion be denied. Meckley filed no objections, and the district judge, after reviewing the matter de novo, affirmed and adopted the findings of fact and conclusions of law of the magistrate judge. Pursuant to 28 U.S.C. § 1915(a), the district judge certified that any appeal would not be taken in good faith as Meckley had failed to file objections.
Approximately two weeks later, Meckley filed a motion to vacate the judgment. In that motion, Meckley alleged that a serious illness had prevented her both from reading the magistrate judge's report and recommendation and from filing objections. She requested that the judgment be vacated to allow her to file objections or, in the alternative, that she be granted in forma pauperis status on appeal. In response, an opinion and order was entered by the district court which concluded that, because the district judge had already conducted a de novo review of the magistrate judge's report and recommendation, allowing for objections would be futile. However, Meckley was granted in forma pauperis status on appeal. Meckley has requested the appointment of counsel.
Where a party is notified of the requirements of filing objections to the magistrate judge's report and recommendation, appellate review of the district court's order is waived if objections are not filed or if they are not timely filed. See United States v. Walters, 638 F.2d 947 (6th Cir.1981); Thomas v. Arn, 728 F.2d 813 (6th Cir.1984), affirmed, 474 U.S. 140 (1985). The report and recommendation in this case clearly states that the right to raise objections in the court of appeals would be waived unless timely written objections were filed in the district court within ten days of the receipt of the magistrate judge's report and recommendation. Therefore, Meckley's failure to file written objections has waived her right to appellate review. Further, we perceive no miscarriage of justice by declining to review the merits of Meckley's appeal. Accordingly, Meckley's request for counsel is denied, and the order of the district court dismissing Meckley's action is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.