872 F. 2d 1027 - Ponder v. Secretary of Health and Human Services

Before NATHANIEL R. JONES and RYAN, Circuit Judges; and GEORGE E. WOODS, District Judge*.

The plaintiff appeals the summary judgment affirming the Secretary's denial of social security disability benefits. The defendant now moves to dismiss the appeal on the grounds that the plaintiff waived his right to appeal.

The plaintiff's action in the district court was referred to a magistrate who recommended that the defendant's motion for summary judgment be granted. In his report and recommendation, the magistrate stated that objections had to be filed within ten days of the date of service or further appeal would be waived. The plaintiff did not file objections to the report, and the district court entered its order adopting the magistrate's report and granting summary judgment to the defendant on January 11, 1989.

This Court has repeatedly 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 that report. Thomas v. Arn, 728 F.2d 813 (6th Cir.1984); aff'd 474 U.S. 140 (1986); United States v. Walters, 638 F.2d 947 (6th Cir.1981). In Thomas v. Arn, the United States Supreme Court noted that "[t]he Sixth Circuit's rule, by precluding appellate review of any issue not contained in objections, prevents a litigant from 'sandbagging' the district judge by failing to object and then appealing." 474 U.S. at 147-48. In this action no objections were filed; therefore the plaintiff waived his right to appeal the summary judgment entered for the defendant.

It is ORDERED that the motion to dismiss is granted.