47 F.3d 1168
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Maurice ERBY, Plaintiff-Appellant,v.Beverly WILLIAMS;  Raymond G. Toombs, Warden;  KennethMcGinnis, Director;  Gary Ball, Defendants-Appellees.
No. 94-1656.
United States Court of Appeals, Sixth Circuit.
Feb. 15, 1995.

Before:  GUY, BOGGS and SILER, Circuit Judges.

ORDER

1
Maurice Erby, a Michigan state prisoner proceeding without benefit of counsel, appeals a district court judgment dismissing his civil rights complaint filed pursuant to 42 U.S.C. Sec. 1983.  The 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).


2
Seeking monetary, declaratory and injunctive relief, as well as criminal penalties to be imposed upon defendants, Maurice Erby sued the Director of the Michigan Department of Corrections (McGinnis), the Warden at the Ionia Maximum Correctional Facility (Toombs), the Supervisor of Prisoner Institutional Records at the Ionia Maximum Correctional Facility (Williams), and the Assistant Resident Unit Manager at the Ionia Maximum Correctional Facility (Ball), in their individual and official capacities.  Erby claimed that on six occasions his incoming legal mail was opened when he was not present in violation of his rights protected by the First, Sixth, and Fourteenth Amendments to the United States Constitution.


3
The defendants moved for summary judgment, yet Erby did not respond.  Upon review of Erby's complaint, the defendants' motion, and accompanying attachments, the magistrate judge recommended that the motion for summary judgment be granted.  Even though advised to file objections or else his appeal would be waived, Erby did not submit any objections to the magistrate judge's report and recommendation.  Thereafter, the district court adopted the report and recommendation as the opinion of the court and dismissed Erby's complaint.


4
Upon review, we affirm the district court's judgment.  Erby has waived his right to appeal.  A party who does not file timely objections to a magistrate judge's report and recommendation, after being advised to do so, waives his right to appeal.  Thomas v. Arn, 474 U.S. 140, 155 (1985);  United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981).  The magistrate judge specifically advised Erby that failure to file objections would result in a waiver of his appeal.  Despite the warning, Erby did not file any objections.  Erby argues on appeal that he sent a letter to the district court dated April 9, 1994, requesting an extension of time to file objections to the report and recommendation.  The district court never received the letter.  While waiver may be excused under exceptional circumstance in the interests of justice, Thomas, 474 U.S. at 155 & n. 15, no such circumstances exist in this case.


5
Accordingly, the district court's judgment is affirmed pursuant to Rule 9(b)(3), Rules of the Sixth Circuit.

