786 F.2d 1165
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
JAMES ROBERT KIMSEY, Plaintiff-Appellant
v.
H. K. RUSSELL, SUPERINTENDENT; WAS JONES, DEPT. SUPT. OF
TREATMENT; DR. CURRY; DR. MARTINES; BARBARA MOORE,
HEAD NURSE, Defendants-Appellees.
85-3844
United States Court of Appeals, Sixth Circuit.
2/14/86
N.D.Ohio
VACATED AND REMANDED
ORDER
BEFORE: KRUPANSKY and GUY, Circuit Judges; and PECK, Senior Circuit Judge.
Plaintiff has appealed from the decision of the district court adopting the magistrate's report and recommendation and dismissing the case. The appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of appellant's informal brief and the record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure. Appellant has filed a motion for appointment of counsel.
A review of the record indicates that on January 3, 1985, one of the five defendants was dismissed from the action. On August 2, 1985, the magistrate filed a report and recommendation recommending that the case be dismissed. Objections were filed on August 8 and an affidavit of evidence requesting a jury trial was filed on August 9. The district court adopted the magistrate's report and recommendation and dismissed the action from which this appeal was taken.
Title 28 U.S.C. Sec. 636(b)(1)(C) provides that the district court perform a de novo determination of the contested portions of the magistrate's report and recommendation. Thomas v. Arn, 54 U.S.L.W. 4032 (U.S. December 4, 1985); United States v. Veteto, 701 F.2d 136 (11th Cir.), cert. denied, 464 U.S. 839 (1983); Nettles v. Wainwright, 677 F.2d 404, 409 (5th Cir. 1982); Hill v. Duriron Co., Inc., 656 F.2d 1208 (6th Cir. 1981); Calderon v. Waco Lighthouse for the Blind, 630 F.2d 352 (5th Cir. 1980). Although the district court states that it reviewed the record, it is evident that it was not aware of the objections to the magistrate's report which had been timely filed and made part of the record.
It is ORDERED that the motion for counsel be denied and the decision of the district court be and hereby is vacated and remanded for further proceedings. Rule 9(d)(4), Rules of the Sixth Circuit.