89 F3d 833 Gutierrez v. Michigan Department of Corrections

89 F.3d 833

Michael Paul GUTIERREZ, Plaintiff-Appellant,
Mary Berghuis, Deputy Warden, Defendants-Appellees.

No. 95-1904.

United States Court of Appeals, Sixth Circuit.

June 6, 1996.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

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Before: MERRITT, Chief Judge; COLE, Circuit Judge; ECHOLS, District Judge.*



Michael Paul Gutierrez, proceeding pro se, appeals a district court judgment dismissing his civil rights suit filed under 42 U.S.C. § 1983. 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).


Seeking only monetary relief, Gutierrez sued the Michigan Department of Corrections (MDOC), Dr. Richard Huff, a physician hired by MDOC, and the deputy warden at the Brooks Regional Correctional Facility in Muskegon, Michigan, claiming that the defendants violated his Eighth Amendment rights when they denied him proper treatment for a scalp condition. Gutierrez sued Dr. Huff in his official capacity and sued defendant Berghuis in her individual capacity.


A magistrate judge recommended granting the defendants' motion to dismiss for failure to state a claim or for summary judgment. Although advised to do so, Gutierrez did not file any objections to the magistrate judge's report and recommendation. The district court then adopted the report and dismissed the suit. On appeal, Gutierrez reasserts his same claim presented in the district court. Gutierrez has also filed a motion for the appointment of counsel and a motion for a telephonic conference with the judges of this court.


Gutierrez has waived his right to appeal pursuant to the doctrine announced in United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). See Thomas v. Arn, 474 U.S. 140, 155 (1985). Moreover, there are no circumstances in this case warranting an exception to this waiver rule in the interests of justice. Thomas, 474 U.S. at 155 & n. 15. Furthermore, we affirm the District Court's decision that the Michigan Department of Corrections and defendant Huff in his official capacity are immune to Plaintiff's money damages claim under the Eleventh Amendment, and there is no merit to Plaintiff's Eighth Amendment claim that they were deliberately indifferent to his scalp problem against the remaining two individual defendants.


Accordingly, we deny Gutierrez's motion for the appointment of counsel and his motion for a telephonic conference, and affirm the district court's judgment. Rule 9(b)(3), Rules of the Sixth Circuit.


The Honorable Robert L. Echols, United States District Judge for the Middle District of Tennessee, sitting by designation