Collins v. Warden, London Correctional Institution et al

Filing 18

ORDER and REPORT AND RECOMMENDATIONS re 13 MOTION for Judgment on the Pleadings: The Magistrate Judge RECOMMENDS that Defendants' Motion for Judgment on the Pleadings be GRANTED IN PART AND DENIED IN PART. Objections to R&R due within fourteen (14) days of the date of this Report. Plaintiff's 15 Motion to Amended Complaint is DENIED. Defendants' 14 MOTION to Stay Discovery is also DENIED. Signed by Magistrate Judge Elizabeth Preston Deavers on 6/5/2013. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LEROY COLLINS,
Plaintiff,
Civil Action 2:12-cv-1093
Judge George C. Smith
Magistrate Judge Elizabeth P. Deavers

v.

WARDEN, LONDON CORRECTIONAL
INSTITUTION, et al.,
Defendants.

ORDER AND REPORT AND RECOMMENDATION
Plaintiff, Leroy Collins, an Ohio inmate who proceeds in forma pauperis and without the
assistance of counsel, brings this civil rights action under 42 U.S.C. § 1983. This matter is
before the Court for consideration of Defendants’ Motion for Judgment on the Pleadings. (ECF
No. 13.) In response to Defendants’ Motion, Plaintiff filed a Motion to Amend Complaint.
(ECF No. 15.) Defendants filed a Response in Opposition to Plaintiff’s Motion on April 10,
2013. (ECF No. 16.) Plaintiff filed his Reply on April 25, 2013. (ECF No. 17.) Also before the
Court is Defendants’ Motion to Stay Discovery Pending Resolution of Motion for Judgment on
the Pleadings. (ECF No. 14.) Plaintiff did not file a Response to Defendants’ Motion. For the
reasons that follow, it is RECOMMENDED that Defendants’ Motion for Judgment on the
Pleadings be GRANTED IN PART AND DENIED IN PART. Specifically, it is
RECOMMENDED that Defendants’ Motion be GRANTED as to Plaintiff’s claims against
Defendant Woods, and that such claims be DISMISSED for failure to state a claim. It is further
RECOMMENDED that Defendants’ Motion be DENIED as it relates to Plaintiff’s claims

against Defendants Bottroff and Murphy. Plaintiff’s Motion to Amend Complaint is DENIED.
Defendants’ Motion to Stay Discovery is also DENIED.
I. BACKGROUND
Plaintiff alleges that he began to suffer from continuous back pain in 2007. At the time,
he was incarcerated in an institution other than the London Correctional Institution (“LoCI”).
Prison officials sent Plaintiff to The Ohio State University hospital, where doctors diagnosed him
with having four herniated discs. Doctors prescribed a treatment plan that included a bottombunk restriction, Ibuprofen, and a prescription pain-reliever called Altrum.
On August 15, 2011, Plaintiff was transferred to LCI in London, Ohio. According to
Plaintiff, the medical staff at LCI have eliminated the treatment plan that doctors had established
to treat his disc problem. According to Plaintiff, Dr. Barbara Woods eliminated Plaintiff’s
prescription for Altrum. (Compl. 2, ECF No. 3.) Nurse Practitioner Trina Marie Bottorff
eliminated Plaintiff’s prescription for Ibuprofen and Plaintiff’s bottom-bunk restriction. Id.
Defendant Bottorff also cancelled Plaintiff’s prescription for asthma medication and his
prescription for Tylenol, and refuses to refer Plaintiff to be treated for a Hepatitis C infection.
Id. Plaintiff also contends that Nurse Bottorff denied his request for an MRI to prove that he
suffers from herniated discs, and cancelled his prescription for an anti-inflammatory medication
called Nuerotin. Id. at 2-3.
Plaintiff maintains that Nurse Bottorff eliminated some of the treatments outlined above
in retaliation filing complaints against her with her supervisor, Defendant Murphy. He contends
that he filed multiple complaints with Defendant Murphy concerning Defendant Bottorff’s
conduct. Id. Plaintiff alleges that Defendant Murphy “has constantly defended [Defendant]
Bottorff and not restored not one of the many treatments she took away.” Id. According to
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Plaintiff, each time he filed an informal complaint, Nurse Bottorff discontinued another medical
treatment. Id. at 3. To date, Defendants Bottorff and Murphy allegedly failed to restore
Plaintiff’s treatments. Id.
Plaintiff seeks restoration of his medical treatments, a different medical provider, and
monetary damages.
II. STANDARD OF REVIEW
Rule 12(c) of the Federal Rules of Civil Procedure allows a party to “move for judgment
on the pleadings.” Fed. R. Civ. P. 12(c). The Court evaluates a motion filed under Rule 12(c)
using the same standard as a Rule 12(b)(6) motion to dismiss. See Roth v. Guzman, 650 F.3d
603, 605 (6th Cir. 2011).
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’ ” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a
complaint will not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Instead,
to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal
Rules of Civil Procedure, “a complaint must contain sufficient factual matter . . . to ‘state a claim
to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial
plausibility is established “when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id.; see also
New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir. 2011)
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(holding, pursuant to Iqbal and Twombly, that a plaintiff must allege sufficiently specific facts to
state a facially plausible claim even if such facts are in the hands of the defendants).
In considering whether this facial plausibility standard is met, a Court must construe the
complaint in the light most favorable to the non-moving party, accept all factual allegations as
true, and make reasonable inferences in favor of the non-moving party. Total Benefits Planning
Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citations
omitted). Additionally, the Court must construe pro se complaints liberally. Younis v. Pinnacle
Airlines, Inc., 610 F.3d 359, 362 (6th Cir. 2010). The Court is not required, however, to accept
as true mere legal conclusions unsupported by factual allegations. Iqbal, 556 U.S. at 678.
III. ANALYSIS
A.

Defendants’ Motion for Judgment on the Pleadings
1.

Liability Against Defendants in their Individual Capacities

In their Motion, Defendants first challenge Plaintiff’s Complaint for his failure to specify
in which capacity he seeks to hold Defendants liable. The Eleventh Amendment to the United
States Constitution generally bars § 1983 lawsuits against state officials sued in their official
capacity. Shepherd v. Wellman, 313 F.3d 963, 967 (6th Cir. 2002) (citing Will v. Mich. Dept. of
State Police, 491 U.S. 58 (1989)). As a result, plaintiffs pursuing § 1983 actions must “set forth
clearly in their pleading that they are suing the state defendants in their individual capacity for
damages, not simply their capacity as state officials.” Wells v. Brown, 891 F.2d 591, 593 (6th
Cir. 1989). When a plaintiff fails to explicitly state in which capacity he sues an individual
defendant, the Court applies a “course of proceedings” test to determine whether the defendant
has received sufficient notice of the plaintiff’s intent to hold him personally liable. Shepherd,
313 F.3d at 968. Pursuant to this test, to determine whether a defendant received notice of the
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potential for individual liability, the Court considers the nature of the plaintiff’s claims, whether
the plaintiff seeks compensatory or punitive damages, and the nature of any defenses raised,
particularly defenses of qualified immunity. Id. The Court also considers whether subsequent
pleadings put the defendant on notice of the potential for individual liability. Id.
Here, although Plaintiff does not specify in his Complaint that he seeks to hold
Defendants liable in their individual capacities, the Court concludes that Defendants received
sufficient notice of the potential for personal liability. First, each of the Defendants raised the
defense of qualified immunity in their Answer (Answer 2, ECF No. 9), which indicates their
anticipation of a claim for personal liability. Shepherd, 313 F.3d at 968. Second, at least with
respect to Defendant Bottorff, Plaintiff seeks monetary relief in his Complaint. (Compl. 5, ECF
No. 3.) Although Plaintiff’s claims arise from Defendants’ actions during their employment, the
combination of Plaintiff’s request for monetary relief and Defendants’ defenses of qualified
immunity indicate sufficient notice of the potential for personal liability.1 Accordingly, it is
RECOMMENDED that Defendants’ Motion for Judgment on the Pleadings as it relates to the
capacity in which Plaintiff sues Defendants be DENIED.
2.

Plaintiff’s Claim Against Woods

Defendants next seek dismissal of Plaintiff’s claim against Defendant Woods for failure
to state an Eighth Amendment claim for deliberate indifference to serious medical needs. (Mot.
5, ECF No. 13.) It is well established that “[t]he Eighth Amendment forbids prison officials

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In addition, prior to Defendants filing their Motion for Judgment on the Pleadings,
Plaintiff filed a Reply to Defendant’s Answer to the Complaint. (ECF No. 3.) In his Reply,
Plaintiff specifically indicated that Defendants acted in their individual capacities. (Reply 2,
ECF No. 3.) Although the Court struck Plaintiff’s Reply from the docket for failure to comply
with Southern District of Ohio Local Rule 7.2 (ECF No. 11), Defendants’ receipt of the Reply
further suggests that they were on notice of the potential for personal liability in this case.
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from unnecessarily and wantonly inflicting pain on an inmate by acting with deliberate
indifference toward [his] serious medical needs.” Jones v. Muskegon Cnty., 625 F.3d 935, 941
(6th Cir. 2010) (internal quotations and citations omitted). A claim for deliberate indifference
“has both objective and subjective components.” Alspaugh v. McConnell, 643 F.3d 162, 169
(6th Cir. 2011). The United States Court of Appeals for the Sixth Circuit has explained:
The objective component mandates a sufficiently serious medical need. [Blackmore
v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir.2004).] The subjective component
regards prison officials’ state of mind. Id. Deliberate indifference “entails
something more than mere negligence, but can be satisfied by something less than
acts or omissions for the very purpose of causing harm or with knowledge that harm
will result.” Id. at 895–96 (internal quotation marks and citations omitted). The
prison official must “be aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists, and he must also draw the inference.” Id. at
896 (internal quotation marks and citation omitted).
Barnett v. Luttrell, 414 F. App’x 784, 787–88 (6th Cir. 2011). The Sixth Circuit has also noted
that in the context of deliberate indifference claims:
[W]e distinguish between cases where the complaint alleges a complete denial of
medical care and those cases where the claim is that a prisoner received inadequate
medical treatment. Where a prisoner alleges only that the medical care he received
was inadequate, federal courts are generally reluctant to second guess medical
judgments. However, it is possible for medical treatment to be so woefully
inadequate as to amount to no treatment at all.
Alspaugh, 643 F.3d at 169 (internal quotations and citations omitted). Along similar lines,
“[o]rdinary medical malpractice does not satisfy the subjective component.” Grose v. Corr.
Med. Servs, Inc., 400 F. App’x 986, 988 (6th Cir. 2010). Furthermore, “a difference of opinion
between [a prisoner] and the prison health care providers and a dispute over the adequacy of [a
prisoner’s] treatment . . . does not amount to an Eighth Amendment claim.” Apanovitch v.
Wilkinson, 32 F. App’x 704, 707 (6th Cir. 2002).
The Court agrees with Defendants that Plaintiff has failed to state a claim against

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Defendant Woods. The only allegation Plaintiff makes against this Defendant is that she
“cancel[l]ed [his] pain medication, Altrum, relying only on a medical opinion, that was totally
without basis or merit, leaving [him] with no effective pain reliever except for the Ibuprofen
medication.” (Compl. 2, ECF No. 3.) Plaintiff does not allege that Defendant Woods
completely denied him care. Rather, he expresses disagreement with Woods’ proposed course of
treatment for pain. Federal Courts, however, are “generally reluctant to second guess medical
judgments.” Alspaugh, 643 F.3d at 169. Plaintiff’s disagreement with Defendant Woods over
his course of treatment is insufficient to state a cognizable claim for deliberate indifference to
serious medical needs under the Eighth Amendment. Apanovitch, 32 F. App’x at 707.
Accordingly, the Undersigned RECOMMENDS that Defendants’ Motion for Judgment on the
Pleadings as it relates to Defendant Woods be GRANTED, and that Plaintiff’s claim against
Defendant Woods be DISMISSED.
3.

Plaintiff’s Claim Against Bottorff

Defendants also seek dismissal of Plaintiff’s (1) deliberate indifference and (2) retaliation
claims against Defendant Bottorff. The Court addresses each claim separately below.
a.

Deliberate Indifference to Serious Medical Needs

Defendants contend that dismissal of Plaintiff’s deliberate indifference claim is
appropriate because it arises from a mere disagreement with Defendant Bottorff concerning
medical treatment. (Mot. 6, ECF No. 13.) According to Defendants, Plaintiff disagrees with
Defendant Bottorff’s decision to forego the treatment plan that was in place “years ago at a
different prison.” Id. Further, Defendants assert that Plaintiff has not alleged a complete denial
of care. In fact, Defendants posit that “it appears from his allegations that Plaintiff interacts with
the medical staff at [the institution] regularly” and receives medication for arthritis. (Mot. 7,
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ECF No. 13.)
Plaintiff has established both the objective and subjective components of a deliberate
indifference claim against Bottorff. First, Plaintiff alleges that he suffers from a herniated disc
condition that causes his spine to press down on his sciatic nerve. (Compl. 3, ECF No. 3.)
According to the Complaint, in 2007 doctors established a treatment plan to alleviate the
“excruciating pain” Plaintiff suffers as a result of this condition. Id. at 2. Thus, Plaintiff has
alleged a “sufficiently serious medical need” to meet the first element of a deliberate indifference
claim. Barnett, 414 Fed. App’x at 787.
Plaintiff has also satisfied the subjective component of a deliberate indifference claim.
He effectively alleges a complete denial of care related to his spinal condition: “Nurse Bottorff[,]
my newly appointed medical treatment provider[,] eliminated ALL of the medical treatment for
my debilitating spinal condition that was left.” (Compl. 2, ECF No. 3) (emphasis in original).
Consequently, unlike Defendant Woods, Defendant Bottorff purportedly left Plaintiff with no
treatment whatsoever for his disc condition. Further, the mere suggestion that Plaintiff has had
contact with medical personnel is insufficient to overcome his allegation that Defendant Bottorff
eliminated all treatment for his disc condition.2 Consistent with this Court’s duty to construe
Plaintiff’s pro se Complaint liberally, Younis, 610 F.3d at 362, the Court concludes that Plaintiff
has stated a claim for deliberate indifference to serious medical needs against Defendant
Bottorff. Accordingly, it is RECOMMENDED that Defendants’ Motion for Judgment on the
Pleadings with respect to Defendant Bottroff be DENIED.

2

Although Plaintiff alleges that he continues to receive medication for arthritis (Compl. 2,
ECF No. 3), he has sufficiently alleged an effective denial of care with respect to his disc
condition.
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b.

Retaliation

Defendants also seek dismissal of Plaintiff’s claim against Defendant Bottorff for
retaliation. To sustain a claim for retaliation, a plaintiff must allege that “(1) [he] engaged in
protected conduct; (2) an adverse action was taken against [him] . . .; and (3) there is a causal
connection between elements one and two – that is, the adverse action was motivated at least in
part by [his] protected conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). “An
inmate has an undisputed First Amendment right to file grievances against prison officials on his
own behalf.” Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000); see also Clark v. Johnston,
413 Fed. App’x 804, 814 (6th Cir. 2011) (recognizing that inmates enjoy a First Amendment
right to file grievances against prison staff). The deprivation of a prescribed pain medication
constitutes an adverse action. Smith v. Yarrow, 78 Fed. App’x 529, 540 (6th Cir. 2003); see also
Tate v. Williams, No. 2:06-cv-47, 2007 WL 2302613, *4 (S.D. Ohio Aug. 8, 2007) (“In the
prison context, ‘adverse action’ includes . . . deprivation of pain medication.”).
Here, Defendants seek dismissal of Plaintiff’s retaliation claim on the ground that he has
failed to allege sufficient facts to state a state such a claim. (Mot. 9, ECF No. 13.) The
allegations set forth in the Complaint, however, undermine Defendants’ assertions. Plaintiff
alleges that “[e]very time [he would] file an informal complaint against Nurse Bottorff to [her
supervisor], Nurse Bottorff would retaliate against [him] and discontinue a medical treatment for
the numerous health problems [he has].” (Compl. 3, ECF No. 3.) Plaintiff’s informal complaints
constitute protected conduct. Herron, 203 F.3d at 415. The denial of medication is an adverse
action. Smith, 78 Fed. App’x at 540. And Plaintiff specifically alleges causation. (Compl. 3,
ECF No. 3.) Accordingly, it is RECOMMENDED that Defendants’ Motion for Judgment on
the Pleadings with respect to Plaintiff’s retaliation claim against Defendant Bottorff be
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DENIED.
3.

Plaintiff’s Claim Against Murphey

Finally, Defendants contend that Plaintiff’s claims against Defendant Murphy must be
dismissed because he has failed to allege facts sufficient to subject this Defendant to § 1983
liability. To plead a cause of action under 42 U.S.C. § 1983, a Plaintiff must plead two elements:
(1) a person acting under color of state law caused deprivation of a right that is (2) secured by
the Constitution or laws of the United States. Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ.,
542 F.3d 529, 534 (6th Cir. 2008). To plead the first element sufficiently, a plaintiff must allege
“personal involvement” on the part of the defendant. Grinter v. Knight, 532 F.3d 567, 575 (6th
Cir. 2008) (citation omitted). This requirement arises because Ҥ 1983 liability cannot be
imposed under a theory of respondeat superior.” Id. (citation omitted). “A supervisor is not
liable under § 1983 for failing to train unless the supervisor either encouraged the specific
incident of misconduct or in some other way directly participated in it.” Everson v. Leis, 556
F.3d 484, 495 (6th Cir. 2009) (internal quotation omitted). Put another way, to hold a supervisor
liable under § 1983, a plaintiff “must show that the official at least implicitly authorized,
approved, or knowingly acquiesced in the unconstitutional conduct . . . .” Id. For a supervisor to
be liable for a subordinate’s unconstitutional behavior, the supervisor must have done “more
than play a passive role in the alleged violation.” Frodge v. City of Newport, 501 Fed. App’x
519, 531 (6th Cir. 2012) (quoting Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)). For
example, § 1983 liability will not attach to a supervisor’s mere failure to investigate an incident
of unconstitutional behavior or failure to discipline a subordinate. Id. Knowing acquiescence in
unconstitutional behavior, however, will subject a supervisor to liability. See Reynolds v. Smith,
No. 2:11-cv-277, 2011 WL 7122291, * 5 (S.D. Ohio Sept. 21, 2011) (denying motion to dismiss
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where plaintiff alleged that the supervisor knew of the subordinate’s unconstitutional behavior,
had discussed the unconstitutional behavior with the plaintiff, but failed to take action to prevent
further constitutional violations).
Here, Plaintiff has alleged sufficient facts to state a claim against Defendant Murphy.
The question is close, to be sure. But Plaintiff alleges more than a mere failure to act with
respect to Defendant Murphy. He alleges that he complained to Defendant Murphy multiple
times that her direct subordinate was in effect violating his constitutional rights on an ongoing
basis. Accepting Plaintiff’s allegations as true, as the Court must at this stage, Defendant
Murphy knew of Defendant Bottorff’s denial of care and retaliatory actions against Plaintiff,
interacted with Plaintiff regarding these purportedly ongoing unconstitutional behaviors multiple
times, but failed to prevent further constitutional violations from occurring. Particularly in light
of the Court’s duty to construe Plaintiff’s pro se Complaint liberally, Younis, 610 F.3d at 362,
the combination of these factors is minimally sufficient to state a claim against Defendant
Murphy. Reynolds, 2011 WL 7122291, at *5. Accordingly, it is RECOMMENDED that
Defendants’ Motion for Judgment on the Pleadings with respect to Defendant Murphy be
DENIED.
B.

Motion to Amend Complaint
In response to Defendants’ Motion for Judgment on the Pleadings, Plaintiff filed a

Motion to Amend Complaint. (ECF No. 15.) In considering a motion to amend, the Court
generally will “freely give leave when justice so requires” pursuant to Federal Rule of Civil
Procedure 15(a). “Nevertheless, leave to amend ‘should be denied if the amendment is brought
in bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party, or
would be futile.’” Carson v. U.S. Office of Special Counsel, 633 F.3d 487, 495 (6th Cir. 2011)
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(quoting Crawford v. Roane, 53 F.3d 750, 753 (6th Cir.1995)); Seals v. Gen. Motors Corp., 546
F.3d 766, 770 (6th Cir. 2008) (citing Wade v. Knoxville Utils. Bd., 259 F.3d 452, 459 (6th Cir.
2001)) (“Factors that may affect [a Rule 15(a)] determination include undue delay in filing, lack
of notice to the opposing party, bad faith by the moving party, repeated failure to cure
deficiencies by previous amendment, undue prejudice to the opposing party, and futility of the
amendment.”). A court may deny a motion for leave to amend for futility if the amendment
could not withstand a motion to dismiss. Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601
F.3d 505, 512 (6th Cir. 2010); Midkiff v. Adams Cnty. Reg’l Water Dist., 409 F.3d 758, 767 (6th
Cir. 2005).
Plaintiff’s proposed Amended Complaint is almost identical to his original Complaint,
with just a few exceptions. See generally Proposed Amended Complaint, ECF No. 15-1. None
of the proposed additions would affect the Court’s conclusions with respect to Defendants’
Motion for Judgment on the pleadings or alter the merits of Plaintiff’s remaining claims.
Because Plaintiff seeks the proposed amendments to clarify issues raised in Defendants’ Motion
for Judgment on the Pleadings, and because none of the proposed amendments affects the
Court’s assessment of Defendants’ arguments or the merits of Plaintiff’s claims, the Court
concludes that granting Plaintiff’s Motion to Amend would cause undue delay in this case.
Carson, 633 F.3d at 495. Accordingly, Plaintiff’s Motion to Amend Complaint is DENIED.
C.

Motion to Stay Discovery
Defendants also filed a Motion to Stay Discovery pending resolution of their Motion for

Judgment on the Pleadings. (ECF No. 14.) The discovery cutoff date is currently scheduled for
July 1, 2013. (ECF No. 12.) In light of the above recommendations and the claims that remain,
the Court finds no just reason to delay discovery in this case. Defendants’ Motion is, therefore,
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DENIED.
D.

Status of Prison Cashier Defendant
The parties dispute whether any claims regarding the prison cashier survived the Court’s

initial screen pursuant to 28 U.S.C. § 1915(e). In his Complaint, Plaintiff purported to assert
claims against the Warden of LoCI for failure to monitor inmate complaints against the prison
cashier. (Compl. 4, ECF No. 3.) The Court dismissed Plaintiff’s claims against the Warden for
failure to state a claim. (ECF Nos. 4 and 8.) Because any claims related to the prison cashier
were asserted against the Warden, and the Warden has been dismissed, no claims related to the
prison cashier remain pending in this action.
IV.
For the foregoing reasons, it is RECOMMENDED that Defendants’ Motion for
Judgment on the Pleadings be GRANTED IN PART AND DENIED IN PART. (ECF No. 13.)
Specifically, it is RECOMMENDED that Defendants’ Motion be GRANTED as to Plaintiff’s
claims against Defendant Woods, and that such claims be DISMISSED. It is further
RECOMMENDED that Defendants’ Motion be DENIED as it relates to Plaintiff’s claims
against Defendants Bottroff and Murphy. Plaintiff’s Motion to Amend Complaint is DENIED.
(ECF No. 15.) Defendants’ Motion to Stay Discovery is also DENIED. (ECF No. 14.)
V. PROCEDURE ON OBJECTIONS
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 in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the 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
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).

IT IS SO ORDERED.

Date: June 5, 2013

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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