Grimm v. Fleagle et al

Filing 44

REPORT AND RECOMMENDATIONS: It is RECOMMENDED that the First Motion for Summary Judgment of Defendants and the State of Ohio on Behalf of Norman Fleagle, ECF 28, be DENIED - objections due w/in fourteen (14) days. Signed by Magistrate Judge Norah McCann King on 03/30/2015. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DEREK GRIMM,
Plaintiff,
vs.

Civil Action 2:13-cv-1257
Judge Smith
Magistrate Judge King

NORMAN FLEAGLE, III, et al.,
Defendants.

REPORT AND RECOMMENDATION
This is a civil rights action under 42 U.S.C. § 1983 in which
plaintiff, formerly incarcerated in the Chillicothe Correctional
Institution (“CCI”), alleges that defendants Fleagle and Brown, with
the assistance of other defendant(s), attacked plaintiff without
provocation and that these and other defendants subjected plaintiff to
abuse and unjustified force, issued false conduct charges and
investigative reports and retaliated against plaintiff for having used
the prison grievance procedure.

Plaintiff asserts claims of cruel and

unusual punishment, deliberate indifference and conspiracy in
contravention of the Eighth Amendment of the United States
Constitution, and retaliation and conspiracy in contravention of the
First Amendment.

This matter is before the Court on First Motion for

Summary Judgment of Defendants and the State of Ohio on Behalf of
Norman Fleagle, ECF 28 (“Motion for Summary Judgment”).

For the

reasons that follow, it is RECOMMENDED that the Motion for Summary
Judgment be DENIED.

1

I.

BACKGROUND
When he was taken into custody by the Ohio Department of

Rehabilitation and Correction (“ODRC”) at the Correction Reception
Center (“CRC”), plaintiff acknowledged receiving written and verbal
instructions regarding the prison grievance process.

See Exhibit A

(Inmate Orientation Checklist dated April 25, 2011, reflecting that
plaintiff received “Verbal/Written Explanation of the Grievance
System”), attached to Defendants’ and the State of Ohio’s Reply in
Support of Motion for Summary Judgment, ECF 43 (“Reply”).

See also

Exhibits B and C, attached to Reply (Inmate Orientation Checklists
dated May 10, 2011 and December 23, 2011); Declaration of Corby Free,
¶ 7 (“All inmates in the custody of ODRC are given both written and
oral instructions on how to use the inmate grievance procedure
including instructions on appeals to the Office of the Chief Inspector
and direct grievance to that office as required by Ohio Admin. Code
5120-9-31(C).”), attached as Exhibit E to Reply (“Free Declaration”).
In September 2011, plaintiff was transferred from Belmont
Correctional Institution (“BeCI”) to CCI where he was housed in
Segregation Unit 2.

Affidavit of Derek Grimm, ¶¶ 3-4 (“Plaintiff

Affidavit”), attached as Exhibit 1 to Plaintiff’s Memorandum Contra to
Defendants[’] First Motion for Summary Judgment, ECF 40 (“Memo.
Contra”).

On or around September 24, 2011, plaintiff submitted an

informal complaint, contending that he had not received proper meals
for two days.

Id. at ¶ 6.

See also Informal Complaint Resolution,

attached as Exhibit A to Plaintiff Affidavit.

A staff member

responded to this informal complaint on September 30, 2011.
2

Id.

At some point, plaintiff advised “correctional staff” that he had
an allergy to onions.

Plaintiff Affidavit, ¶ 8.

“The kitchen”

accommodated this allergy by providing bagged meals to plaintiff in
lieu of menu items that contained onions.

Id.

On or around December

16 or 17, 2011, Correctional Officer Michael Clemmons delivered
plaintiff a meal that contained onions.

Id. at ¶ 9.

After plaintiff

asked that Officer Clemmons or defendant Norman Fleagle, III, provide
plaintiff with a meal that met his dietary restrictions, plaintiff
received a bagged meal that contained trash and no food.
10.

Id. at ¶¶ 9-

Plaintiff spoke to an unidentified “supervisor” regarding this

incident.

Id. at ¶ 11.

On December 18, 2011, Officer Clemmons

delivered a bagged dinner to plaintiff, advising that he had eaten
plaintiff’s muffin and had thrown away plaintiff’s applesauce.
¶ 12.

Id. at

On December 19, 2011, plaintiff filed an informal complaint

regarding this incident.

Id. at ¶ 13.

See also Informal Complaint

Resolution, attached as Exhibit B to Plaintiff Affidavit.

A staff

member responded to this informal complaint on January 8, 2012.

Id.

On December 28, 2011, defendant Fleagle worked on Segregation
Unit 2 and allegedly harassed plaintiff during that shift.
Affidavit, ¶ 14.

Plaintiff

According to plaintiff, defendant Fleagle entered

plaintiff’s cell while plaintiff was asleep, slapped plaintiff’s head,
threw plaintiff’s personal belongings, kicked plaintiff’s mat, dared
plaintiff to fight him and threatened plaintiff “with bodily harm and
told [plaintiff that he] ‘would pay for it’ if [plaintiff] filed or
made any more complaints.”

Id. at ¶¶ 14-15.

3

On December 29, 2011, plaintiff filed an informal complaint
against defendant Fleagle and submitted it to defendant Lieutenant
Craig Branham.

Id. at ¶ 16.

See also Informal Complaint Resolution,

attached as Exhibit C to Plaintiff Affidavit.

Thereafter, plaintiff

met with defendant Branham to discuss this complaint.
Affidavit, ¶ 17.

Plaintiff

During that meeting, plaintiff told defendant

Branham that, in light of defendant Fleagle’s threats and access to
plaintiff’s cell, plaintiff feared for his safety.

Id.

According to

plaintiff, defendant Branham advised that a separation order would be
issued, prohibiting the assignment of defendant Fleagle to Segregation
Unit 2 and prohibiting that defendant from having any contact with
plaintiff.

Id. at ¶ 18.

On December 31, 2011, defendant Fleagle was assigned to work in
plaintiff’s unit.

Id. at ¶ 21.

Plaintiff became concerned for his

safety and “repeatedly” asked defendant Corrections Officer Karl Brown
for permission to speak with a “supervisor,” which requests were
denied by defendant Brown. Id. at ¶¶ 22-24.

Hours later, defendant

Fleagle approached plaintiff’s cell and asked plaintiff whether he
wanted to take a shower.

Id. at ¶ 26.

After plaintiff refused a

shower, defendant Fleagle stepped closer to plaintiff’s cell, asked
plaintiff why he was spitting on defendant Fleagle (although plaintiff
was not spitting on this defendant), grabbed mace and instructed
plaintiff to come closer to the cell door.

Id. at ¶ 27.

After defendant Fleagle had left the area, plaintiff began to
complain of chest pains and asked to see a nurse.

Id. at ¶¶ 28-29.

Plaintiff was not actually experiencing chest pains, but he asked to
4

see the nurse an alternative method of seeking a supervisor’s
assistance for protection from defendant Fleagle.

Id. at ¶ 30.

However, defendants Fleagle and Brown allegedly “ignored” plaintiff’s
complaints of chest pain and defendant Fleagle advised the nurse that
plaintiff did not require medical attention.

Id. at ¶ 31.

Thereafter, defendant Fleagle placed Brandon Johns, the inmate in
the cell next to plaintiff’s, in the shower.

Id. at ¶¶ 28, 32.

Defendant Fleagle returned to plaintiff’s cell and asked plaintiff why
he requested a nurse.

Id. at ¶ 33.

When plaintiff responded that he

had experienced chest pains, defendant Fleagle asked plaintiff if he
remembered the informal complaint that plaintiff had written about
defendant Fleagle.

Id. at ¶¶ 33-34.

Plaintiff describes what

happened next:
36. I was certain something was going to happen that
night based upon Fleagle’s initial comments about me
“spitting on him”, the fact he grabbed his mace during that
exchange, his and Brown’s refusal to allow me to speak with
a supervisor or a nurse and the fact Fleagle previously
threatened me not to file any more complaints and/or
grievances. So, I had a trash bag next to me to cover my
face if Fleagle ended up spraying me with mace.
37. After Fleagle heard my response, he took a step back
and said, “I got your nurse”, pulled out his mace and began
to spray me while I was in my cell.
38. Almost immediately after Fleagle was done spraying me
with mace, the door to my cell opened.
39. Once the door was open, Fleagle ran into my cell,
slammed me on the bed and then slammed my head against the
wall. Fleagle then began to hit me in the face.
40. Brown then entered my cell a short period after
Fleagle and they both threw me to the ground and they both
continued to assault me.
41. While I was laying on the ground, Fleagle and Brown
continued to hit and knee me in the face, side and back.
5

42. Brown told me he needed my hand to cuff, and although
I complied with his instructions, Fleagle told me to stop
refusing and continued to assault me even after Brown had
one of my hands cuffed.
43. Fleagle continued to assault me until Brown finally
told him to stop.
44. Fleagle and Brown then removed me from my cell and
took me to the cage in front of the correctional officers’
desk at the end of the range.
45. I then wrote a statement as to what happened.
(December 31, 2011, Inmate Use of Force Statement attached
hereto as “Exhibit D”).
Plaintiff Affidavit, ¶¶ 36-45.

See also Complaint, ECF 1, ¶ 25

(alleging that defendants Fleagle and Brown “with the assistance of
Defendant [Correctional Officer Michael] Adams, attacked Plaintiff,
without provocation inflicting serious bodily injuries”).

An hour

after this incident (“the December 31, 2011 incident”), plaintiff was
seen by a nurse.

See Medical Exam Report, attached as Exhibit F to

Reply.
On January 3, 2012, plaintiff submitted the following note
(“kite”) to the Ohio State Highway Patrol:
[sic] to a matter between me and a CO.
you.”
Kite”).

“I need to speak to you do

It’s very important

thank

Exhibit E, attached to Plaintiff Affidavit (“Plaintiff’s
See also Plaintiff Affidavit, ¶ 50.

In response, plaintiff

met with a Highway Patrol trooper on January 6, 2012.

Id. at ¶ 57.

During that meeting, plaintiff denied spitting on defendant Fleagle or
anyone else on December 31, 2011, and plaintiff “volunteered my DNA
because it would show my saliva was not on Fleagle’s shirt.”
58.

6

Id. at ¶

On January 5, 2012, defendant Branham provided a written response
to plaintiff’s December 29, 2011 informal complaint regarding the
threats allegedly made by defendant Fleagle on December 28, 2011.
Exhibit C, attached to Plaintiff Affidavit.

Defendant Branham advised

that “[t]his matter will be looked into [illegible] on your claim of
harrassment [sic] and threats.”

Id.

On the same date, plaintiff filed an informal complaint against
defendant Adams, complaining that this defendant “informed me not to
send mail out during 2nd shift because it would get thrown away by the
correctional officers.”

Id. at ¶ 54.

See also Informal Complaint

Resolution, attached thereto as Exhibit F.

A staff member responded

to this informal complaint on February 7, 2012.

Id.

In early February 2012, plaintiff met with “someone from the
prison about the assault [on December 31, 2011].”
Affidavit, ¶ 60.

Plaintiff

See also Use of Force interview notes, attached

thereto as Exhibit G.
In the middle of February 2012, plaintiff was transferred from
CCI to the Southern Ohio Correctional Facility (“SOCF”).
Affidavit, ¶ 61.

Plaintiff

Months after this transfer, plaintiff met with a

State Highway Patrol trooper and submitted his DNA to determine
whether plaintiff had spat on defendant Fleagle’s shirt.

Id. at ¶ 62.

In the spring of 2013, plaintiff was transferred to the Ross County
Jail to testify in a criminal trial charging defendant Fleagle with a
felony.

Id. at ¶¶ 63-64.

Upon his arrival at the jail, plaintiff

learned that his DNA was not found on defendant Fleagle’s shirt and a
“Prosecutor and Trooper” apologized to plaintiff “about what happened
7

on and leading up to the December 31, 2011 assault.”

Id. at ¶ 64.

Plaintiff later learned that defendant Fleagle had been convicted of a
“3rd degree felony in connection with the assault and his false
accusations against [plaintiff].”

Id. at ¶ 65.

On December 20, 2013, plaintiff filed this civil rights action
under 42 U.S.C. § 1983, naming twelve individual defendants.
Defendants and the State of Ohio have moved for summary judgment on
plaintiffs’ claims, which plaintiff has opposed.

See Memo. Contra.

With the filing of the Reply, this matter is now ripe for resolution.
II.

STANDARD
The standard for summary judgment is well established.

This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,
which provides in pertinent part:
The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).

In making this determination, the evidence

must be viewed in the light most favorable to the non-moving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).

Summary judgment

will not lie if the dispute about a material fact is genuine, “that
is, if the evidence is such that a reasonable jury could return a
verdict for the non-moving party.”
477 U.S. 242 (1986).

Anderson v. Liberty Lobby, Inc.,

However, summary judgment is appropriate if the

opposing party fails to make a showing sufficient to establish the
existence of an element essential to that party’s case and on which
that party will bear the burden of proof at trial.
Catrett, 477 U.S. 317, 322 (1986).

Celotex Corp. v.

The mere existence of a scintilla
8

of evidence in support of the opposing party’s position will be
insufficient; there must be evidence on which the jury could
reasonably find for the opposing party.

Anderson, 477 U.S. at 251.

The party moving for summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of the record which demonstrate
the absence of a genuine issue of material fact.
323.

Catrett, 477 U.S. at

Once the moving party has met its initial burden, the burden

then shifts to the nonmoving party who “must set forth specific facts
showing that there is a genuine issue for trial.”

Anderson, 477 U.S.

at 250 (quoting former Fed. R. Civ. P. 56(e)); Talley v. Bravo Pitino
Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995)(“nonmoving party
must present evidence that creates a genuine issue of material fact
making it necessary to resolve the difference at trial”).

“Once the

burden of production has so shifted, the party opposing summary
judgment cannot rest on the pleadings or merely reassert the previous
allegations.

It is not sufficient to ‘simply show that there is some

metaphysical doubt as to the material facts.’”

Glover v. Speedway

Super Am. LLC, 284 F. Supp.2d 858, 862 (S.D. Ohio 2003)(citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)).

Instead, the non-moving party must support the assertion

that a fact is genuinely disputed.

Fed. R. Civ. P. 56(c)(1).

In ruling on a motion for summary judgment “[a] district court is
not ... obligated to wade through and search the entire record for
some specific facts that might support the nonmoving party’s claim.”
Glover, 284 F. Supp.2d at 862 (citing InteRoyal Corp. v. Sponseller,
9

889 F.2d 108, 111 (6th Cir. 1989)).

Instead, a “court is entitled to

rely, in determining whether a genuine issue of material fact exists
on a particular issue, only upon those portions of the verified
pleadings, depositions, answers to interrogatories and admissions on
file, together with any affidavits submitted, specifically called to
its attention by the parties.”

Id.

See also Fed. R. Civ. P.

56(c)(3).
III. DISCUSSION
Defendants argue that plaintiff’s claims cannot proceed because
he failed to exhaust his administrative remedies before filing this
action.

The Prison Litigation Reform Act requires that a prisoner

filing a claim under federal law relating to prison conditions must
first exhaust available administrative remedies.

Porter v. Nussle,

534 U.S. 516 (2002); Booth v. Churner, 532 U.S. 731 (2001).

The

statute provides, in pertinent part:
No action shall be brought with respect to prison
conditions under [section 1983 of this title], or any other
Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative
remedies as are available are exhausted.
42 U.S.C. § 1997e(a).
In order to satisfy this exhaustion requirement, an inmate
plaintiff must “complete the administrative review process in
accordance with the applicable procedural rules[.]”
548 U.S. 81, 88 (2006).

Woodford v. Ngo,

“Failure to exhaust is an affirmative defense

under the PLRA, and [] inmates are not required to specifically plead
or demonstrate exhaustion in their complaints.”
U.S. 199, 216 (2007).

Jones v. Bock, 549

Exhaustion is not a jurisdictional predicate
10

but the requirement is nevertheless mandatory, Wyatt v. Leonard, 193
F.3d 876, 879 (6th Cir. 1999), even if proceeding through the
administrative procedure would appear to the inmate to be “futile.”
Hartsfield v. Vidor, 199 F.3d 305, 308-10 (6th Cir. 1999).
Ohio has established a procedure for resolving inmate complaints.
Ohio Admin. Code § 5120-9-31.

The procedure is available to an inmate

“regardless of any disciplinary status, or other administrative or
legislative decision to which the inmate may be subject,” O.A.C. §
5120-9-31(D), and is intended to “address inmate complaints related to
any aspect of institutional life that directly and personally affects
the grievant,” including “complaints regarding policies, procedures,
conditions of confinement. . . .”

O.A.C. § 5120-9-31(A).

Certain

matters are not grievable, however, including “complaints unrelated to
institutional life, such as legislative actions, policies and
decisions of the adult parole authority, judicial proceedings and
sentencing or complaints whose subject matter is exclusively within
the jurisdiction of the courts or other agencies.”

O.A.C. § 5120-9-

31(B).
Ohio employs a three-step grievance procedure.

First, an inmate

must file an informal complaint within fourteen days of the event
giving rise to the complaint.

O.A.C. § 5120-9-31(K)(1).

The informal

complaint must be filed “to the direct supervisor of the staff member,
or department most directly responsible for the particular subject
matter of the complaint.” Id.

If the informal complaint is resolved

in a manner that is unsatisfactory to the inmate, he must file a
notification of grievance with the inspector of institutional services
11

within fourteen days.

O.A.C. § 5120-9-31(K)(2).

If the inmate is

dissatisfied with the disposition of the grievance, he must then
appeal to the office of the chief inspector within fourteen days.
O.A.C. § 5120-9-31(K)(3).
designee is final.”

Id.

“The decision of the chief inspector or
Remedies for valid grievances include

“changes to institutional policies or procedures, the implementation
of new policies or procedures, and/or corrective action specific to
the inmate’s complaint.”

O.A.C. § 5120-9-31(L).

Dismissal without

prejudice of a civil rights complaint is appropriate if a prisoner
fails to first exhaust administrative remedies.

See, e.g., Harbin-Bey

v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005); Crump v. Darling, No.
03-2086, 2005 U.S. App. LEXIS 29546, at *3-4 (6th Cir. July 6, 2005).
However, the applicable law makes clear that a prisoner need
exhaust only those administrative remedies that are “available” to
that prisoner.

See, e.g., 42 U.S.C. § 1997e(a); Napier v. Laurel

County, 636 F.3d 218, 222-23 (6th Cir. 2011).

Whether a process is

“available” under the PLRA frequently turns on whether a grievance
procedure was available on its face even if the prisoner subjectively
believes that the procedure would be futile.

Napier, 636 F.3d at 224.

Courts have found a grievance procedure “unavailable” when prison
officials “have somehow thwarted” an inmate’s attempts at exhaustion.
Brock v. Kenton County, No. 02-5442, 93 Fed. Appx. 793, at *798 (6th
Cir. Mar. 23, 2004).

Nevertheless, the prisoner must still “make some

affirmative efforts to comply with the administrative procedure”
before a court will consider whether the procedure was unavailable.
Id.

See also Napier, 636 F.3d at 223 (“The Sixth Circuit requires
12

some affirmative efforts to comply with the administrative procedures
before analyzing whether the facility rendered these remedies
unavailable.”) (internal quotation marks and citations omitted).
Courts analyze “whether an inmate’s efforts to exhaust were sufficient
under the circumstances[.]”

Napier, 636 F.3d at 224.

In making this

determination, courts consider whether a reasonable jury could
conclude that defendants’ actions and/or statements “would deter a
person of ordinary firmness from continuing with the grievance
process.”

Himmelreich v. Fed. Bureau of Prisons, 766 F.3d 576, 578

(6th Cir. 2014).
In the case presently before the Court, plaintiff’s claims
against defendants are subject to the grievance procedure because they
relate to a condition of confinement.

See O.A.C. § 5120-9-31(A).

The

uncontroverted evidence establishes that plaintiff did not timely
appeal the denial of any of his four informal complaints, including
the December 29, 2011 informal complaint that addressed defendant
Fleagle’s alleged threats.

More specifically, the applicable rules

required plaintiff to file a notification of grievance with the
institutional inspector within fourteen days of the denial of any
informal complaint.

O.A.C. § 5120-9-31(K)(2).

The present record

establishes that plaintiff did not file a notification of grievance as
to his informal complaint regarding the alleged threats.
Declaration, ¶¶ 8-9.

See Free

The record also establishes that plaintiff did

not file an informal complaint regarding the December 31, 2011
incident.

Plaintiff Affidavit, ¶¶ 49-50, 52, 56.

Declaration, ¶ 9.
13

Cf. Free

Plaintiff, however, contends that he was afraid to file any more
informal complaints against defendants Fleagle, Brown or Branham after
the December 31, 2011 incident.
56.

Plaintiff Affidavit, ¶¶ 49-50, 52,

Instead, plaintiff sent an “intentionally vague” kite to the

State Highway Patrol on January 3, 2012.
53.

See also Plaintiff’s Kite.

Plaintiff Affidavit, ¶¶ 50-

Defendants counter that plaintiff was

not required to file an additional informal complaint; however,
complete exhaustion would have required him to pursue the second and
third steps of the three-part grievance process. Reply, p. 3.
Defendants also argue that the record undermines plaintiff’s
assertions of fear.

Id. at 4-8.

Defendants’ arguments are not well-taken.

As set forth above,

plaintiff avers that defendant Fleagle threatened plaintiff with
bodily harm on December 28, 2011 should plaintiff file more
complaints.

Plaintiff Affidavit, ¶¶ 14-15.

After plaintiff filed an

informal complaint the following day, he avers that defendants Fleagle
and Brown assaulted him in his cell on December 31, 2011.
16, 37-43.

Id. at ¶¶

These defendants’ “retaliation and intimidation — if

proven true — would render the grievance process functionally
unavailable for a person of ordinary firmness.”
at 578.

Himmelreich, 766 F.3d

Under these circumstances, plaintiff, who had previously

received instructions regarding the prison grievance process,
submitted the kite on January 3, 2012 to the Ohio State Highway
Patrol.

Plaintiff Affidavit, ¶¶ 50-52.

The Court concludes that

there remains a genuine issue of fact as to whether the grievance
process was, under the circumstances alleged by plaintiff, available
14

to him.
Defendants’ assertion that plaintiff’s filing of an informal
complaint against defendant Adams on January 5, 2012 does not militate
a different result.

Although the Complaint, ¶ 25, alleges that this

defendant assisted defendants Fleagle and Brown in the December 31,
2011 incident, plaintiff avers that “[a]t the time I filed the
informal complaint on January 5th, I was unaware Adams was responsible
for opening the door to my cell and was involved in the assault.

I

only learned of this information after I submitted the informal
complaint.”

Plaintiff Affidavit, ¶ 55.

Construing this evidence in a

light most favorable to plaintiff, the Court cannot say that the
filing of the January 5 complaint against defendant Adams undermines
plaintiff’s alleged fear of retaliation for pursuing his
administrative remedies.
Finally, the facts that plaintiff met with a “non-involved and
unbiased Ohio Highway Patrol Trooper” on January 6, 2012 or that
defendants dispute the extent of plaintiff’s injuries resulting from
the December 31, 2012 incident, Reply, pp. 4-6, do not unequivocally
establish that plaintiff’s allegations of fear are disingenuous.
Instead, this evidence simply establishes a genuine issue of fact that
must await resolution at trial.1
WHEREUPON, it is RECOMMENDED that the First Motion for Summary
Judgment of Defendants and the State of Ohio on Behalf of Norman
Fleagle, ECF 28, be DENIED.
1

To the extent that defendants argue that, because “Plaintiff has failed to
satisfy statutory mandates, he has not, nor can he, defeat Defendants’
entitlement to qualified immunity[,]” Motion for Summary Judgment, p. 5, that
argument is not well-taken for the reasons discussed supra.

15

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.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
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 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

March 30, 2015

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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