Lundeen v. The State Medical Board of Ohio
Filing
19
REPORT AND RECOMMENDATION that Plaintiff's 6 MOTION for Preliminary Injunction, 13 MOTION Declaratory Judgment and Permanent Injunction & 16 MOTION for Judgment on the Pleadings be DENIED. It is further RECOMMENDED that this case be DISMISSED for lack of subject matter and personal jurisdiction. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Norah McCann King on 5/7/2012. (kk2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES E. LUNDEEN, Sr.,
Plaintiff,
vs.
Civil Action 2:11-CV-1128
Judge Smith
Magistrate Judge King
THE STATE MEDICAL BOARD OF OHIO,
Defendant.
REPORT AND RECOMMENDATION
This action challenges the permanent revocation of plaintiff
James E. Lundeen’s medical license by the defendant, the State Medical
Board of Ohio (“the Board”). This matter is closely related to a prior
case, Lundeen v. Talmadge, Case No. 2:11-cv-00484, in which plaintiff
challenged the summary suspension of his medical license. 1 This matter
is now before the Court for consideration of
several motions filed by
plaintiff, who is proceedings without the assistance of counsel:
Motion for Preliminary Injunction, Doc. No. 6;
Motion for Declaratory
Judgment and Permanent Injunction, Constitutional Challenge of State
Statute R.C. 119.12, Doc. No. 13; and Motion for Judgment on the
Pleadings Pursuant to Rule 12(c), Doc. No. 16.
For the reasons that
follow, it is RECOMMENDED that plaintiff’s motions be DENIED and that
this action be DISMISSED.
I.
Plaintiff filed this action on December 19, 2011.
1
In his Complaint
The Court entered final judgment granting defendants’ motion to
dismiss the earlier action, Lundeen v. Talmadge, Case No. 2:11-cv-00484, 2011
U.S. Dist. LEXIS 134019 (Nov. 21, 2011), and that judgment is the subject of
plaintiff’s pending appeal. Plaintiff has also filed numerous other lawsuits
in both state and federal courts related to the suspension of his medical
license and the surrounding events. See 2011 U.S. Dist. LEXIS 134019, at *4
n.1. The Court does not construe the claims asserted in this action to include
new or renewed challenges to the summary suspension of plaintiff’s medical
license.
for Declaratory Judgment, Preliminary and Permanent Injunction, Doc. No.
2, plaintiff alleges that, on December 14, 2011, the Board wrongfully
ordered that plaintiff’s medical license be permanently revoked. Id. at
p.4; see also Entry of Order, attached as Exhibit B-3 to Complaint, Doc.
No. 2-1. The Board based its decision upon the report and recommendation
of a hearing
examiner,
Patricia A. Davidson.
Id. Hearing
Examiner
Davidson had concluded that plaintiff’s “acts, conduct, and/or omissions”
constituted violations of Ohio Revised Code §4731.22(B). See Report and
Recommendation, attached
as Exhibit
B to Opposition
to Motion for
Preliminary Injunction, Doc. No. 11-2, pp. 356-57. The Board informed
plaintiff of his right, under O.R.C. §119.12, to appeal the revocation
decision to the Court of Common Pleas for Franklin County, Ohio. See
December 14, 2011 Ltr. to Lundeen, attached as Exhibit B-1 to Complaint,
Doc.
No.
2-1.
On
December
29,
2011,
plaintiff
in
fact
filed
an
administrative appeal in the Court of Common Pleas for Franklin County,
Ohio. See Notice of Appeal, attached as Exhibit A to Opposition to Motion
for Preliminary Injunction, Doc. No. 11-1.
That appeal apparently
remains pending.
Plaintiff asks this Court to enjoin the Board from enforcing the
permanent revocation of his medical license. Complaint, p. 4. Plaintiff
further seeks to enjoin the Board from enforcing O.R.C. §4731.22(B),
which governs disciplinary actions by the Board, alleging that certain
subsections “violate his due process and equal protection rights under
the Fifth and Fourteenth Amendments of the United States Constitution,
his free speech and redress rights under the 1st Amendment, as well as
his rights articulated under Article I, Sections 1 and 2 of the Ohio
Constitution.” Id. at p.4. 2
Plaintiff also challenges the “absence of
2
Plaintiff also refers to §4731.22(G), which relates to license
suspensions. See fn. 1, supra.
2
mens rea
and scienter language and application of strict liability”
within the statute. Id.3
Plaintiff
also
challenges
the
constitutionality
administrative appeals statute, O.R.C. §119.12.
of
Ohio’s
See Doc. No. 13.4 In
particular, plaintiff challenges the statutory provision that permits
affirmance of the agency’s order upon a finding that the order is
supported by “reliable, probative, and substantial evidence and is in
accordance with law.”
See Motion for Declaratory Judgment and Permanent
Injunction, Doc. No. 13, p. 3. According to plaintiff, this standard of
appellate review “violates his due process and equal protection rights
. . . . [by not including] a weighing or burden of evidence other than
non-zero.” Id. Instead, plaintiff argues, “a higher proof of evidence,
either preponderance or clear and convincing,” should be required for
review of agency decisions that “affect constitutionally-protected rights
of property and/or liberty.” Id. at pp. 5, 28.
II.
Plaintiff moves for judgment on the pleadings under Fed. R. Civ. P.
12(c), which provides that “[a]fter the pleadings are closed . . . a
party may move for judgment on the pleadings.”
filed an answer.
Accordingly, plaintiff’s
The Board has not yet
Motion for Judgment on the
Pleadings Pursuant to Rule 12(c) is not properly before the Court. See
Nationwide Children’s Hosp., Inc. v. D.W. Dickey & Son, Inc., No. 2:08cv-1140, 2009 WL 5247486, at *1 (S.D. Ohio 2009) (holding Rule 12(c)
3
Plaintiff also appears to assert a due process violation relating to
his summary suspension. See fn. 1, supra.
4
The Complaint expressly challenges only the constitutionality of
§4731.22. However, the Motion for Declaratory Judgment and Permanent
Injunction, Constitutional Challenge of State Statute R.C. 119.12 , Doc. No.
13, also requests injunctive relief relating to §119.12. Because the pro se
plaintiff’s pleadings must be liberally construed, see Haines v. Kerner, 404
U.S. 519 (1972), and because this Court’s disposition of plaintiff’s challenge
to §119.12 is the same as that relating to his challenge to §4731.22, the
Court will overlook this procedural defect.
3
motion premature because pleadings not “closed” when all defendants had
not yet filed an answer). It is RECOMMENDED that this motion, Doc. No.
16, be DENIED.
III.
A.
Plaintiff seeks preliminary and permanent injunctive relief.
Interim injunctive relief is an extraordinary remedy that should be
granted only after the Court has carefully considered the following four
factors:
(1) whether the movant has a “strong” likelihood of success on
the merits; (2) whether the movant would otherwise suffer
irreparable injury; (3) whether issuance of a preliminary
injunction would cause substantial harm to others; and (4)
whether the public interest would be served by issuance of a
preliminary injunction.
Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000) (citing McPherson
v. Michigan High Sch. Athletic Ass’n, 119 F.3d 453, 459 (6th Cir. 1997)
(en banc), quoting Sandison v. Michigan High Sch. Athletic Ass’n, 64 F.3d
1026, 1030 (6th Cir. 1995)). When considering these factors, a district
court should balance each factor against the others to arrive at its
ultimate determination. Id. These factors are not prerequisites to
injunctive relief; rather, they are factors that a court must balance.
In re Delorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985); Michigan
Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir. 2001) (no single
factor is determinative); Monongahela Power Co. v. Schriber, 322 F.
Supp.2d
902,
918
(S.D.
Ohio
2004)(same).
However,
a
preliminary
injunction should not issue where there is simply no likelihood of
success on the merits.
Michigan State AFL-CIO v. Miller, 103 F.3d 1240,
1249 (6th Cir. 1997).
The standard governing a request for permanent injunctive relief is
4
essentially the same as that governing a request for a preliminary
injunction, except that plaintiff must show actual, as opposed to a
likelihood of, success on the merits. See ACLU of Kentucky v. McCreary
Cty., 607 F.3d 439, 445 (6th Cir. 2010) (citing Amoco Prod. Co. v.
Village of Gambell, 480 U.S. 531, 546 n.12 (1987)).
The Court concludes that plaintiff cannot establish a likelihood of
success on the merits.
B.
As
an
initial
matter,
the
Court
concludes
that
the Eleventh
Amendment to the United States Constitution divests this Court of subject
matter jurisdiction over the claims asserted in this action.
The
Eleventh Amendment prohibits “any suit in law or equity, commenced or
prosecuted against one of the United States.” The only named defendant
in this action is the Board, which is an agency of the State of Ohio
entitled to Eleventh Amendment immunity.
See Begun v. Ohio State Medical
Bd., 1989 WL 34047, *1 (6th Cir. March 29, 2989)(unpublished)(affirming
dismissal of claim against the Board based on Eleventh Amendment
immunity).
The Board argues that the Court also lacks personal jurisdiction
over it because plaintiff has neither requested a waiver of service nor
effected service of summons. See Doc. Nos. 15, 17.
Indeed, the record
does not reflect either the waiver or the completion of service of
process.
Plaintiff responds that, on December 19, 2011, he filed a
praecipe with the Clerk of Court, pursuant to Fed. R. Civ. P. 5.1(b), 28
U.S.C. §2403 and S.D. Ohio Civ. R. 10.1, intended to inform the Ohio
Attorney General of plaintiff’s constitutional challenge to a state
statute. See Praecipe, Doc. No. 3; Plaintiff’s Reply, Doc. No. 18.
According to plaintiff, this praecipe “acts as a service of summons.”
5
Plaintiff’s Reply to Defendant’s Opposition to Motion for Judgment on the
Record, Doc. No. 18, p. 1. Moreover, because counsel for the Board
immediately
thereafter
entered
an
appearance
in
the
action and
“materially participated” in this matter, plaintiff argues that the Board
has constructively waived the service of process requirement. Id. p. 2.
Plaintiff is mistaken.
Service of process on a defendant is a fundamental requirement in
litigation. As stated by the United States Supreme Court:
In the absence of service of process (or waiver of service by
the defendant), a court ordinarily may not exercise power over
a party the complaint names as defendant. See Omni Capital
Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)
(“Before a ... court may exercise personal jurisdiction over
a defendant, the procedural requirement of service of summons
must be satisfied.”); Mississippi Publishing Corp. v.
Murphree, 326 U.S. 438, 444-45 (1946) (“[S]ervice of summons
is the procedure by which a court ... asserts jurisdiction
over the person of the party served.”). Accordingly, one
becomes a party officially, and is required to take action in
that capacity, only upon service of a summons or other
authority-asserting measure stating the time within which the
party served must appear and defend. . . . Unless a named
defendant agrees to waive service, the summons continues to
function as the sine qua non directing an individual or entity
to participate in a civil action or forgo procedural or
substantive rights.
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350
(1999)(some internal citations omitted).
Proper service of process in litigation instituted in the Southern
District of Ohio must conform to Fed. R. Civ. P. 4 and S.D. Ohio Civ. R.
4.2. The fact that a defendant may have received actual notice of the
filing of the action cannot substitute for proper service of process. See
LSJ Investment Co., Inc. v. O.L.D., Inc., 167 F.3d 320, 322 (6th Cir.
1999); Friedman v. Estate of Presser, 929 F.2d 1151, 1155 (6th Cir.
1991). Similarly, a defendant’s mere entry of appearance after receiving
actual notice of the lawsuit does not automatically waive the requirement
6
of proper service of process. Cf. Reed v. City of Cleveland, No. 1:04-cv0546, at *9 (N.D. Ohio Sept. 6, 2006) (finding that individual defendant
had implicitly waived his argument of improper service by its extensive
participation in the case, including the filing of an answer, conducting
discovery, testifying on deposition and affirmatively filing a motion for
summary judgment).
Here, there is no dispute that plaintiff has not effected service
of process in accordance with Fed. R. Civ. P. 4 or S.D. Ohio Civ. R. 4.2.
Although he is proceeding pro se, plaintiff has demonstrated his ability
to effect service of process in other cases filed by him.
Lundeen v. Talmadge, Case No. 2:11-cv-1148, Doc. Nos. 4, 5.
See, e.g.,
Moreover,
the Board has noted the failure to effect service of process in nearly
every filing made by it and plaintiff has nevertheless not attempted to
either secure a waiver of service or actual service of process.
Under
these circumstances, the claims asserted in this action are subject to
dismissal without prejudice.
See Fed. R. Civ. P. 4(m).
Wholly apart from these jurisdictional issues, the Board argues that
this Court’s consideration of plaintiff’s claims for relief is prohibited
by the federal abstention principles articulated in Younger v. Harris,
401 U.S. 37 (1971). See Doc. Nos. 11, 15. Plaintiff responds that Younger
does not apply here because: (1) this case is related to a separate
habeas case, in which Younger would not apply; (2) the three-prong test
for abstention has not been satisfied; and (3) the statutory scheme at
issue in this action is so “flagrantly and patently violative of express
constitutional
prohibitions”
that
abstention
is
inappropriate.
See
Plaintiff’s Reply to Defendant’s Opposition to Preliminary Injunction,
Doc. No. 14.
7
The Younger abstention doctrine, as established and extended by the
United States Supreme Court, prohibits federal courts from issuing
injunctions that
proceedings.
serve to interfere with state criminal and civil
See Younger, 401 U.S. at 43, 46 (addressing interference
with state criminal proceedings); Huffman v. Pursue, Ltd., 420 U.S. 592
(1975) (extending Younger to state civil proceedings). The doctrine also
prohibits
federal
courts
from
interfering
with
certain
state
administrative proceedings. See Ohio Civil Rights Comm’n v. Dayton
Christian Sch., Inc., 477 U.S. 619, 627 (1986); see also Middlesex County
Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 433 n.12 (1982).
A federal court must consider three factors in determining whether
Younger abstention is appropriate:
(1) whether the underlying proceedings constitute
an ongoing judicial proceeding, (2) whether the
proceedings implicate an important state interest,
and (3) whether there is an adequate opportunity in
the state proceedings to raise a constitutional
challenge.
Fieger v. Cox, 524 F.3d 770, 775 (6th Cir. 2008). Even when a federal
court determines that each of the Younger factors has been satisfied, the
court must then determine whether any exceptions to the Younger doctrine
apply so as to counsel against abstention. See BB&T Ins. Servs., Inc. v.
Ohio Dept. of Ins., No. 2:06-cv-09, 2006 WL 314495, at *5 (S.D. Ohio Feb.
9, 2006). Specifically, Younger abstention does not apply when a federal
court finds that
the state proceeding is motivated by a desire to
harass or is conducted in bad faith, or where the
challenged statute is “flagrantly and patently
violative of express constitutional prohibitions in
every clause, sentence and paragraph, and in
whatever manner and against whomever an effort
might be made to apply it.”
Huffman v. Pursue, Ltd., 420 U.S. at 611.
8
Plaintiff first contends that, because this Court has characterized
this case as “related” to a habeas corpus action under 28 U.S.C. §2254 5
– one of four (4) other related cases filed by plaintiff in this Court,
see Doc. No. 8 – Younger abstention is inapplicable. This argument is
entirely frivolous. This case is not a habeas case and application of the
Court’s internal administrative process by which related cases are
assigned to the same judicial officers does not make it so.
In any
event, the habeas case filed by plaintiff under 28 U.S.C. §2254, Lundeen
v. State Medical Board of Ohio, 2:11-cv-1054, was dismissed by the Court
under Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts without requiring response by the Board. The Court
will therefore consider the Younger three-prong test.
This Court has previously held that the administrative proceedings
initiated before the Board qualify as “an ongoing judicial proceeding”
for purposes of Younger abstention. Lundeen v. Talmadge, 2:11-cv-11-484,
Doc. No. 42, pp. 6-7. See also Watts v. Burkhart, 854 F.2d 839, 846 (6th
Cir. 1988) (finding proceedings initiated by the Tennessee Division of
Health Related Boards to summarily suspend a doctor’s license to be
“judicial proceedings” subject to Younger abstention principles). See
also Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S.
at 627
(finding that administrative proceedings that are judicial in
nature from the outset remain judicial in nature even though they have
“progressed to state-court review” by the time the federal injunction
case is heard). Plaintiff’s claim that the Board’s proceeding is not
5
In Lundeen v. State Medical Board of Ohio, 2:11-cv-1054, plaintiff
claimed that the summary suspension of his medical license denied him his
right to liberty and procedural due process and defamed him. That action was
dismissed because plaintiff did not meet the “custody” requirement of 28
U.S.C. § 2254(a). Order, Doc. No. 9. Plaintiff’s appeal from the judgment
entered in that action remains pending.
9
“judicial” because the voting members are allegedly biased (because they
were named as defendants in plaintiff’s other lawsuit(s)) is not welltaken.
The
administrative
proceedings
are
also
clearly “ongoing.”
Plaintiff has chosen to continue the administrative matter by filing an
appeal in the Court of Common Pleas for Franklin County from the
administrative revocation of his medical license.
State Med. Bd., Case No. 11-CV-016295.
See Lundeen v. Ohio
That case apparently remains
pending. See Fed. Express Corp. v . Tenn. Public Serv. Comm’n, 925 F.2d
962, 969 (6th Cir. 1991) (finding state court proceedings “ongoing” for
purposes of Younger analysis where plaintiff had initiated state judicial
review of state agency’s order). 6
The second Younger question is whether the proceedings implicate an
important state interest. Again, this Court has previously held that the
state proceedings do.
Lundeen v. Talmadge, 2:11-cv-11-484, Doc. No. 42,
p. 7. It is clear that the regulation of the practice of medicine is an
important interest to the State of Ohio. See, e.g., Watts, 854 F.2d at
846-47 (“It is readily apparent that the State of Tennessee has an
important interest in protecting its citizens from the illegal and
6
In Fed. Express Corp. v. Tenn. Public Serv. Comm’n , the United States
Court of Appeals for the Sixth Circuit utilized the “day-of-filing” rule to
conclude that the underlying state proceedings were ongoing. 925 F.2d at 969.
Specifically, the court found the first prong of the Younger analysis to be
satisfied because a state proceeding was pending at the time the federal court
action was filed. Id. Even though, in the instant case, plaintiff filed this
action after the administrative hearing process had ended but before he had
filed his administrative appeal in state court, the undersigned finds that
this analysis does not change. At the time plaintiff filed this action, the
15-day window provided by state law for appealing the Board’s administrative
decisions had not yet passed. See Ohio Rev. Code Ann. §119.12; December 14,
2011 Ltr. to Lundeen, attached as Exhibit B-1 to Complaint, Doc. No. 2-1. Just
ten days after filing this action, plaintiff filed his appeal in state court.
See Notice of Appeal, Doc. No. 11-1. No proceedings on the merits of this case
had taken place in the interim and the Court therefore concludes that the
principles of comity and federalism underlying the Younger abstention doctrine
are fully applicable here. See Middlesex Cty. Ethics Comm’n v. Garden State
Bar Ass’n, 457 U.S. 423, 436-37 (1982); Hicks v. Miranda, 422 U.S. 332, 349
(1975).
10
improper distribution of controlled substances and from the negligence
of licensed physicians.”); Korn v. Ohio State Med. Bd., 61 Ohio App.3d
677, 685-86 (Franklin Cty. 1988) (“There is a strong public interest in
the
removal
patients.”).
of
a
doctor
Plaintiff’s
from
the
argument
profession
to
the
to
protect
innocent
contrary (including his
inapplicable detour into the criminal principle of entrapment) is without
merit.
The third element of the Younger inquiry is whether plaintiff has
an adequate opportunity to raise constitutional challenges in the pending
state proceedings. Under Ohio law, a party adversely affected by an order
of the Board may argue on appeal, pursuant to Ohio Revised Code §119.12,
that the order is not “in accordance with law,” a term that has been
construed
Reading
to
v.
include
Pub.
federal
Util.
Comm.,
constitutional
109
Ohio
challenges.
St.3d
(permitting facial constitutional challenge);
193,
Leon
v.
See,
195-96
Ohio
e.g.,
(2006)
Bd.
Of
Psychology, 63 Ohio St.3d 683, 686-87 (1992) (permitting argument that
the
regulation
relied
upon
to
revoke
appellant’s
license
was
unconstitutionally vague). This Court has specifically held that an
appeal to Ohio courts under §119.12 provides an adequate forum to raise
constitutional issues. See BB&T Ins. Servs., Inc. v. Ohio Dept. of Ins.,
No. 2:06-cv-09, 2006 WL 314495, at *5 (S.D. Ohio Feb. 9, 2006);
Walter
v. Cincione, No. 2:00-cv-1070, 2000 WL 1505945, at *3 (S.D. Ohio Oct. 6,
2000). Thus, plaintiff’s pending appeal before the Franklin County Court
of Common Pleas provides ample opportunity for plaintiff to raise his
constitutional challenges; indeed, plaintiff has done just that. See
Notice of Appeal, attached as Exhibit A to Opposition to Motion for
Preliminary Injunction, Doc. No. 11-1, p. 3. Plaintiff’s argument that
he cannot receive an adequate review of his current constitutional
concerns in a state forum, based on the fact that his prior cases have
11
failed and his belief that the State of Ohio “has affected a stranglehold on the State Court system,” is without merit.
This Court therefore concludes that the Younger analysis militates
in favor of abstention.
Plaintiff argues that a lack of mens rea language in §4731.22 makes
it so “flagrantly and patently violative of express constitutional
prohibitions” that equitable relief is warranted notwithstanding the
Younger analysis. See Reply, Doc. No. 14, p. 18.
This Court disagrees.
Section 4731.22 addresses disciplinary actions against physicians
and, inter alia, authorizes the revocation of a certificate to practice
for certain specified reasons. § 4731.22(B).
Although certain of the
specified bases include a mental element,
4731.22(B)(4)(“Willfully
betraying
a
e.g., §
professions
confidence”);
§
4731.22(B)(5)(“Making . . . a statement . . . intended . . . to create
false or unjustified expectations . . . .”), other specified bases do
not,
e.g.,
§
4731.22(B)(2)(“Failure
to
maintain minimal standards
applicable to the selection or administrative of drugs . . .”); §
4731.22(B)(4)(3)(“[A]dministering drugs for other than legal and
legitimate therapeutic purposes . . .”).
However, not every statute must contain an express mens rea element
in order to pass constitutional muster.
This is true, moreover, even
where a statute – unlike the statutes challenged by plaintiff – imposes
criminal liability.
See, e.g., Tomlin v. Anderson, 106 F.3d 402, *5
(Table), 1997 WL 35577 (6
th
Cir. January 29, 1997). In particular,
statutes that deal with the public welfare or regulatory offenses need
not require proof of any mens rea.
U.S. 600, 606 (1994).
See Staples v. United States , 511
It is notable in this regard that § 4731.22(B) was
enacted under the state’s power to protect the public’s safety and
welfare.
Bouquett v. Ohio State Med. Bd.
12
, 123 Ohio App.3d 466, 473
(Franklin
Cty.
1997).
In any event, courts may, under some
circumstances, impute a mental element required by either legislative
intent or constitutional mandate.
See, e.g., Morissette v. United
States, 342 U.S. 246, 263 (1952).
This Court expresses no opinion as to the merits of plaintiff’s
claims in this regard; the Court does conclude, however, that the mere
fact that §4731.22 may not expressly require a particular mental element
does not render the statute so flagrantly and patently violative of
express constitutional prohibitions that equitable relief is warranted
notwithstanding the Younger analysis.7
WHEREUPON, it is RECOMMENDED that plaintiff’s Motion for
Preliminary Injunction (Doc. No. 6), Motion for Declaratory Judgment
and Permanent Injunction, Constitutional Challenge of State Statute
R.C. 119.12 (Doc. No. 13), and Motion for Judgment on the Pleadings
Pursuant to Rule 12(c) (Doc. No. 16) be DENIED. It is FURTHER
RECOMMENDED that this case be DISMISSED for lack of subject matter and
personal jurisdiction, and because the Court should abstain from
consideration of plaintiff’s claims.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto. 28
U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must
be filed within fourteen (14) days after being served with a copy
7
The same can be said for §119.12, even though plaintiff does not
specifically address this statute.
13
thereof. Fed. R. Civ. P. 72(b).
The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231, 829 F.2d 1370 (6th Cir. 1987); United States v.
Walters,
638 F.2d 947 (6th Cir. 1981).
s/Norah McCann King
Norah McCann King
United States Magistrate Judge
May 7, 2012
(Date)
14
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