Dugas v. Wittrup

Filing 13

ORDER AND REPORT AND RECOMMENDATIONS. The Motion to Compel (ECF 10 ) is DENIED. It is RECOMMENDED that the Motion for Temporary Restraining Order (ECF 2 ) be DENIED. Objections to R&R due by 2/17/2015. Signed by Magistrate Judge Norah McCann King on 1/30/2015 (pes1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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

Civil Action 2:15-CV-67
Judge Sargus
Magistrate Judge King

BRIAN WITTRUP,
Defendant.

ORDER AND
REPORT AND RECOMMENDATION
Plaintiff, an inmate currently incarcerated at the Chillicothe
Correctional Institution (“CCI”), brings this action under 42 U.S.C. §
1983 against Brian Wittrup,1 Chief of the Bureau of Classification for
the Ohio Department of Rehabilitation and Correction (“ODRC”),
alleging that defendant was deliberately indifferent to a serious risk
of harm to plaintiff’s safety in violation of plaintiff’s
constitutional rights.

This matter is now before the Court on

plaintiff’s Motion for Emergency Filing Pursuant to the Prison
Litigation Reform Act’s (PLRA) ‘Emminent [sic] Danger Doctrine’, ECF 2
(“Motion for Temporary Restraining Order”) and Motion to Compel, ECF
10.

For the reasons that follow, the Motion to Compel is DENIED and

it is RECOMMENDED that the Motion for Temporary Restraining Order be
DENIED.

1

The Ohio Attorney General has made an appearance on behalf of defendant
Wittrup who has not yet been served with process. The State of Ohio’s
Response to Plaintiff’s Motion for Temporary Restraining Order, ECF 5
(“Response”), p. 1 (citing O.R.C. § 109.361).

1

I.

ODRC CLASSIFICATION SYSTEM AND PROTECTIVE CONTROL
The ODRC maintains a classification level system “that creates a

process for the classification of inmates according to their security
risk.”

Response, p. 1 (quoting ODRC Department Policy No. 53-CLS-08).

See also ODRC Department Policy No. 53-CLS-08, available at
http://www.drc.ohio.gov/web/drc_policies/drc_policies.htm; United
States v. Newsome, 2014 U.S. Dist. LEXIS 150659, at *2-3 (S.D. Ohio
Oct. 23, 2014) (“Public records and government documents, including
those available from reliable sources on the Internet, are subject to
judicial notice.”).

The assignment of inmates to institutions

considers “the needs of the offender, the safety of persons in the
institution, and the operational stability of the institution.”

Id.

An inmate may be immediately transferred to a control prison or
control unit under the following circumstances:
a.

The inmate meets the criteria for a Level 4 or Level 5
classification as set forth in Department Policies 53CLS-01, Inmate Security Classification Levels 1
through 4; 53-CLS-04, Level 5 Classification; and 53CLS-06, Inmate Security Classification Level 4 at OSP
[the Ohio State Penitentiary].

b.

The inmate’s continued presence in the current
institution has a detrimental effect on the safety,
security, or good order of the institution; and,

c.

The detention of the inmate in a segregation unit at
the current institution will not be sufficient to
address the needs of the institution.

ODRC Department Policy No. 53-CLS-08, (VI)(A)(1).

Once granted

protective control status, inmates are transferred to the Allen
Oakwood Correctional Institution (“Allen Oakwood”), the only state
institution with a protective control unit.

2

Affidavit of Paul

Arledge, ¶ 8 (“Arledge Affidavit”), attached as Exhibit 1 to the
Response.2
The ODRC also maintains procedures for physically separating
particular inmates “when there is reason to believe that the inmates
could be harmed by being in close proximity to one another, and/or
their presence together could jeopardize the security and safety of
the institution, staff, and/or other inmates.”
(quoting ODRC Department Policy No. 53-CLS-05).

Response, p. 2
See also ODRC

Department Policy No. 53-CLS-05(V), available at
http://www.drc.ohio.gov/web/drc_policies/drc_policies.htm.

The

separations may be “institution separations” or “local separations.”
Id. at (VI).

An institution separation is “[a]n order wherein two or

more inmates are not assigned to general population in the same
institution due to a concern for the safety and security of the
institution, staff and/or other inmates.”

Id. at (IV).

A local

separation is “[a]n order wherein two or more inmates are not
permitted to be assigned to the same living and/or work area, and are
not permitted simultaneous involvement in the same recreational or
leisure time activities to ensure they are not in close proximity with
one another.”

Id.

An inmate may also request a transfer to another facility.
Response, p. 2 (citing ODRC Department Policy No. 53-CLS-09).

See

also ODRC Department Policy No. 53-CLS-09, available at

2

Mr. Arledge is an investigator at CCI who is familiar with the protective
control request investigation process. Id. at ¶¶ 5-6.

3

http://www.drc.ohio.gov/web/drc_policies/drc_policies.htm.3

However,

“[a]n inmate has no right to receive a transfer and one may only be
granted when it serves a legitimate penological reason.”
(VI)(A)(3).

Id. at

More specifically, the ODRC may transfer inmates to other

facilities
in order to encourage and support visiting with pro-social
members of the general community, to participate in
programs advertised as open for enrollment at the
discretion of Managing Officers, for OPI job assignment,
and/or to address specific criminogenic needs. This policy
applies solely to inmate initiated transfers and an inmate
may only request a transfer for the reasons outlined in
this policy.
Id. at (V).

Inmates may appeal the denial of a transfer request to

the Bureau of Classification.
II.

Id. at (VI)(A)(9).

FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY
In October 2014, while plaintiff was incarcerated at the Belmont

Correctional Institution (“BeCI”), an inmate4 who was allegedly part of
a gang known as the “Bloods,” demanded that plaintiff hold drugs for
him.

Complaint, ECF 1, pp. 4-5.

After receiving the drugs, which had

a “prison street value of three-thousand dollars[,]” plaintiff flushed
them down the toilet.
the inmate.

Id.

Id. at 5.

Plaintiff later testified against

The inmate’s security level was increased and he was

transferred to a higher security facility.

Id.

Plaintiff contends

that, as a result of his testimony against a gang member and to
protect him against retaliatory attacks from fellow gang members at
3

This policy does not apply to inmates with classification Levels 4 and 5.
Id. at (III).
4
Plaintiff refers to this inmate as “McCloud,” see, e.g., Complaint, ECF 1,
pp. 4-5, but defendant identifies this inmate as “McClough, 623851 aka
Wheezie.” Response, p. 3 n.2.

4

BeCI, he was granted protective control status5 and was transferred to
CCI.

Id. at 5-6, 12, 14.

Once he arrived at CCI, plaintiff was

placed in the general population.

Id.

On November 8, 2014, five days

after his arrival at CCI, plaintiff alleges that the following
incident occurred:
[W]hile at the Chillicothe facilities’ game room (pool
hall), while playing pool, three black inmates walked to
the door of the game room asking for “Missouri” – which was
Dugas’ known nickname at the Belmont facility – but Dugas
had not told anyone at the Chillicothe facility that his
home state or his nickname was “Missouri,” so fortunately
for Dugas he was not identified by the three black inmates.
When they left, Dugas casually asked the individual he was
playing pool with who they were and the individual he was
playing pool with said they were Blood “enforcers” and that
he didn’t know who “Missouri” was but he wouldn’t want to
be “Missouri.”
Id. at 15.

Plaintiff’s subsequent refusal to lockdown in his regular

assigned area was construed as a request for protective control.
at 15-16.

Plaintiff provided a sworn statement “of the events” to

CCI’s protective control committee in support of his request.
16.

Id.

Id. at

According to plaintiff, he also advised CCI Warden Jenkins and

defendant Wittrup of the following:
[W]hile he [plaintiff] was at the Belmont facilities’
segregation unit (in protective custody status) that the
Blood gang’s “shot-callers” were actively attempting to
carry out a retaliation there, by attempting to order
Dugas’ cell mates to assault him; Dugas’ cell mates at the
time were not “under” the Bloods’ hierarchal command and
fortunately for Dugas did not carry out the assault, but
the entire time Dugas was at Belmont segregation unit in a
protective custody status awaiting his transfer to
Chillicothe, Blood gang members repeatedly threatened Dugas
5

According to defendant, however, “Dugas was denied protective control . . .
and was granted a transfer to CCI from Belmont in lieu of protective
control.” Arledge Affidavit, ¶ 7.

5

that they would “send” for him on any prison yard in the
State of Ohio he went to.
Complaint, p. 17.
Case Manager Shane Stevens investigated plaintiff’s allegations
and denied plaintiff’s request to be placed in protective control at
CCI.

Arledge Affidavit, ¶ 11.
According to the Investigation Report, Dugas’s request to
be placed in protective control was denied because there
was no evidence found to support Dugas’s allegation that
there were inmates at CCI looking for him; Dugas was unable
to provide any names of the inmates with whom he was
playing pool or the names of the inmates looking for him at
CCI. Further, Dugas has a history of attempting to secure
transfers to other prisons by collecting rule violations in
order to secure an individual cell, rather than being
placed in the dorms inhabited by the general population.

Id. at ¶ 12.

On administrative appeal from that decision, defendant

Wittrup likewise denied plaintiff’s request for protective control.
Complaint, p. 16.
On January 7, 2015, plaintiff filed the Complaint under 42 U.S.C.
§ 1983.

Although plaintiff’s Complaint and supporting declaration are

difficult to follow, he appears to allege that defendant Wittrup was
deliberately indifferent to a substantial risk of serious harm to
plaintiff when he denied plaintiff’s request for protective control
status and incarcerated plaintiff with the CCI’s general population.
Plaintiff also alleges that the State of Ohio’s classification and
transfer policies are flawed, creating unsafe environments in its
facilities.

Plaintiff specifically alleges that he faces

not only the general threat of being attacked, injured,
killed or other irrepairable [sic] harm from Ohio’s overlydangerous level two facilities, but otherwise and further
faces an articulable, authentic, and particularized threat

6

of a serious and potentially life-threatening gang
retaliation
because of his destruction of $3,000.00 worth of drugs belonging to
the Bloods gang.

Complaint, pp. 42-43.

On the same day that he filed the Complaint, plaintiff also moved
for a temporary restraining order, seeking an order directing
defendant Wittrup to re-classify plaintiff to protective control
status and to transfer plaintiff to Allen Oakwood until plaintiff’s
current sentence expires in approximately October 2015.

Defendant has

filed a memorandum in opposition to plaintiff’s Motion for Temporary
Restraining Order. Response. Plaintiff has filed a reply in support of
the motion.

Plaintiffs’ [sic] Reply to the State of Ohio’s Position

on the TRO, ECF 9 (“Reply”).
memorandum.

Plaintiff has also filed a supplemental

See Supp. Memo. on TRO, ECF 12 (“Supplemental

Memorandum”).6
III. STANDARD
Rule 65 of the Federal Rules of Civil Procedure permits a party
to seek injunctive relief if he believes that he will suffer
irreparable harm or injury without such relief.
65(a), (b).

Fed. R. Civ. P.

A temporary restraining order relates only to restraints

sought without notice to the adverse party.

Id.

Where, as in the

case presently before the Court, the adverse party has been given

6
This Court’s local rules do not permit the filing of such additional
memoranda “except upon leave of court for good cause shown.” S.D. Ohio Civ.
R. 7.2(a)(2). Although plaintiff has not moved for leave or established good
cause for his proffered Supplemental Memorandum, the Court will nevertheless
consider this filing in considering the Motion for a Temporary Restraining
Order.

7

notice of the request, the application is properly treated as one for
a preliminary injunction.

See id.; Rios v. Blackwell, 345 F. Supp. 2d

833, 835 (N.D. Ohio 2004) (“As long as there is notice to the other
side and an opportunity to be heard, the standard for a preliminary
injunction is the same as that for a temporary restraining order.”).
The decision whether to grant a request for interim injunctive
relief falls within the sound discretion of the district court.
Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 102
(6th Cir. 1982); Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620,
625 (6th Cir. 2000).

An injunction, however, is an extraordinary

remedy that should be granted only after a court has 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. Mich. High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459
(6th Cir. 1997)).
balanced.

These four considerations are factors to be

In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.

1985); Mich. Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir.
2001).

However, a preliminary injunction should not issue where there

is simply no likelihood of success on the merits.
v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997).

Mich. State AFL–CIO
“Moreover, a district

court is not required to make specific findings concerning each of the
four factors used in determining a motion for preliminary injunction

8

if fewer factors are dispositive of the issue.”

Jones v. City of

Monroe, 341 F.3d 474, 476 (6th Cir. 2003) (citing DeLorean, 755 F.2d
at 1228).

The movant bears the burden of establishing that “the

circumstances clearly demand” this extraordinary relief.

Overstreet

v. Lexington–Fayette Urban Cnty. Gov't, 305 F.3d 566, 573 (6th Cir.
2002) (citing Leary, 228 F.3d at 739).
Finally, where a plaintiff seeks an order enjoining a defendant
prison official, a court must take care and recognize the special
nature of a prison setting.

Schuh v. Michigan Dep’t of Corr., No.

1:09-cv-982, 2010 U.S. Dist. LEXIS 96812, at *4 (W.D. Mich. July 26,
2010), adopted and approved by Schuh v. Michigan Dep’t of Corr., No.
1:09-cv-982, 2010 U.S. Dist. LEXIS 96851 (W.D. Mich. Sept. 16, 2010)
(denying inmate’s request for interim injunctive relief be denied).
See also Scott v. Mathena, No. 7:12-cv-469, 2012 U.S. Dist. LEXIS
147682 (W.D. Va. Oct. 15, 2012) (denying inmate’s motion for temporary
restraining order directing defendant prison officials to change
plaintiff’s security classification and access to rehabilitative
programming); James v. Randle, No. 10-cv-78, 2010 U.S. Dist. LEXIS
85171 (S.D. Ill. Aug. 19, 2010) (denying inmate’s motion for interim
injunctive relief directing defendant prison officials to, inter alia,
place the plaintiff inmate in protective custody).
IV.

DISCUSSION
After considering the relevant evidence and the arguments of the

parties, the Court concludes that plaintiff has failed to establish a
strong likelihood of success on the merits.

9

Plaintiff brings his

claim of deliberate indifference pursuant to 42 U.S.C. § 1983, which
provides in pertinent part:
Every person who under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects,
or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or
other proper proceeding for redress. . . .
42 U.S.C. § 1983.

To succeed on a claim for a violation of § 1983, a

plaintiff must establish that (1) a person (2) acting under color of
state law (3) deprived him of his rights secured by the United States
Constitution or its laws.

See Waters v. City of Morristown, 242 F.3d

353, 358-59 (6th Cir. 2001).

Because § 1983 is a method for

vindicating federal rights, and is not itself a source of substantive
rights, the first step in an action under § 1983 is to identify the
specific constitutional right allegedly infringed.
Oliver, 510 U.S. 266, 271 (1994).

Albright v.

Section 1983 merely provides a

vehicle for enforcing individual rights found elsewhere and does not
itself establish any substantive rights.

See Gonzaga Univ. v. Doe,

536 U.S. 273, 285 (2002).
In the case presently before the Court, plaintiff alleges that
defendant was deliberately indifferent to plaintiff’s safety in
violation of plaintiff’s rights under the Fourteenth Amendment to the
United States Constitution.

See, e.g., Complaint, pp. 18-21, 27-29,

43; Declaration of the Plaintiff, ECF 1-1 (“Plaintiff’s Declaration”),
p. 12; Reply, p. 19; Supplemental Memorandum, pp. 7-9.

However, it is

the Eighth Amendment’s deliberate indifference standard that applies

10

to convicted prisoners; the Fourteenth Amendment’s due process clause
applies only to pretrial detainees.
680-81 (6th Cir. 2008).

Lanman v. Hinson, 529 F.3d 673,

Because plaintiff is a convicted prisoner in

the custody of ODRC at all times relevant to the Complaint,
Complaint, pp. 1-2; Arledge Affidavit, ¶¶ 7, 9, 13, it is the Eighth
Amendment that applies to plaintiff’s claim.
“[P]rison officials have a duty . . . to protect prisoners from
violence at the hands of other prisoners.”

Farmer v. Brennan, 511

U.S. 825, 833 (1994) (internal quotation marks and citation omitted).
See also Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir. 2011).

To

establish liability under the Eighth Amendment for defendant’s alleged
failure to protect plaintiff from inmate violence, plaintiff must show
that defendant was deliberately indifferent “to a substantial risk of
serious harm.”

Farmer, 511 U.S. at 828.

Deliberate indifference

contains both an objective and subjective component and the plaintiff
bears the burden of demonstrating these components.

Farmer, 511 U.S.

at 833, 837; Phillips v. Roane County, 534 F.3d 531, 539 (6th Cir.
2008); Watkins v. City of Battle Creek, 273 F.3d 682, 685-86 (6th Cir.
2001)).

Turning first to the objective component, while “[i]n the

abstract, one prison inmate’s threat to the health and safety of
another inmate is ‘sufficiently serious’ to satisfy” the objective
component, a “general concern” about safety from unidentified inmates
does not satisfy this component.

Williams v. McLemore, No. 05-2678,

247 F. App’x 1, at *9 (6th Cir. June 19, 2007) (citing Gant v.
Campbell, No. 00-5639, 4 F. App’x 254, at *256 (6th Cir. Feb. 6,

11

2001)).

See also Bogan v. Brunsman, No. 1:11-cv-259, 2013 U.S. Dist.

LEXIS 12416, at *16 (S.D. Ohio Jan. 30, 2013) (“Thus, identification
of a prisoner’s enemies is critical to the prison’s ability to protect
a prisoner because it is the prison officials, not the prisoner, who
must determine whether there is a substantial risk of harm that
warrants a transfer or other action.”), adopted and affirmed by Bogan
v. Brunsman, No. 1:11-cv-259, 2013 U.S. Dist. LEXIS 26762 (S.D. Ohio
Feb. 27, 2013).

In the case presently before the Court, plaintiff

fails to identify a threat to his safety from any specific inmate.
Instead, he alleges only that “three black inmates” inquired for
“Missouri” and that “the individual he was playing pool with said they
[the three African-American inmates] were Blood ‘enforcers’ and that
he didn’t know who ‘Missouri’ was but he wouldn’t want to be
‘Missouri.’”

Complaint, p. 15.

Plaintiff’s allegation of threat is

based on rank speculation. Moreover, plaintiff has failed to identify
either the alleged Blood “enforcers” or the other inmate who was
allegedly present for this encounter.

Id.

Indeed, an investigation

into these allegations revealed “no evidence . . . to support Dugas’s
allegation that there were inmates at CCI looking for him[.]”
Affidavit, ¶ 12.

Arledge

Plaintiff has alleged nothing more than a

generalized concern for his safety from unidentified inmates.

Under

these circumstances, plaintiff has failed to meet the objective prong
of his deliberate indifference claim.
Furthermore, plaintiff has not satisfied the subjective prong of
his claim, which requires that he show that defendant knew of and

12

disregarded an excessive risk to plaintiff’s safety, i.e., that
defendant “both 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.”

Farmer, 511 U.S. at 837.

Moreover, “prison

officials who actually knew of a substantial risk to inmate health or
safety may be found free from liability if they responded reasonably
to the risk, even if the harm ultimately was not averted.”

Id. at 830

(stating that a “prison official’s duty under the Eighth Amendment is
to ensure ‘reasonable safety’”) (citation omitted)).

In the case

presently before the Court, plaintiff has failed to show that
defendant was aware of facts showing that plaintiff faced a
substantial risk of serious harm or that defendant drew such an
inference.

As set forth above, CCI conducted an investigation

following plaintiff’s request to be placed in protective control but
discovered no evidence of an actual, particularized threat to
plaintiff’s safety.

Arledge Affidavit, ¶¶ 11-12 (averring further

that plaintiff “was unable to provide any names of the inmates with
whom he was playing pool or the names of the inmates looking for him
at CCI”).

Moreover, plaintiff has been in segregation at CCI since

November 8, 2014, and “has not been harmed and does not claim that he
has been harmed since his arrival at CCI on November 3, 2014.”
¶¶ 13-14.

Id. at

Therefore, nothing in the present record establishes either

that defendant was aware that plaintiff faced a substantial risk of
serious harm or failed to respond reasonably to any such risk. See
Farmer, 511 U.S. at 830, 837.

Cf. Gibson v. Foltz, 963 F.2d 851, 854

13

(6th Cir. 1992) (“The fact that the defendants knew that SPSM housed
many violent prisoners and that prison violence did occur is not
sufficient to constitute deliberate indifference.”).

Accordingly,

plaintiff has failed to establish a strong likelihood of success on
the merits.

7

Under these circumstances, plaintiff’s request for

interim injunctive relief is without merit.

See Jones v. City of

Monroe, 341 F.3d 474, 476 (6th Cir. 2003); Mich. State AFL-CIO v.
Miller, 103 F.3d 1240, 1249 (6th Cir. 1997) (“While, as a general
matter, none of these four factors [is] given controlling weight, a
preliminary injunction issued where there is simply no likelihood of
success on the merits must be reversed.”) (citing Sandison v. Mich.
High Sch. Athletic Ass’n, 64 F.3d 1026, 1037 (6th Cir. 1995))
(emphasis added).8
VI.

MOTION TO COMPEL
Plaintiff has filed a motion to compel the production of certain

information.

ECF 10.

It does not appear that plaintiff has actually

served an initial discovery request on defendant through his counsel.
Id.

Plaintiff is REMINDED that original discovery requests are to be

served on the parties through their counsel.
7

Plaintiff may file a

The Court notes further that, although plaintiff seeks an order directing
defendant to re-classify him to protective control status and to transfer him
to Allen Oakwood, inmates generally have no protected liberty interest in a
specific security classification or assignment to a particular prison cell or
institution. See, e.g., Sandin v. Conner, 515 U.S. 472, 486-87 (1995); Moody
v. Daggett, 429 U.S. 78, 88 n.9 (1976); Ortega v. United States Immigration &
Customs Enforcement, 737 F.3d 435, 438-39 (6th Cir. 2013); Harbin-Bey v.
Rutter, 420 F.3d 571, 577 (6th Cir. 2005).
8
Plaintiff at times refers to his request for “summary judgment.” See, e.g.,
Reply, pp. 18-20; Supplemental Memorandum, pp. 8-9. To the extent that
plaintiff intends that his motion be construed as a motion for summary
judgment under Fed. R. Civ. P. 56, that motion is without merit for the same
reasons as are articulated above.

14

discovery-related motion only after it appears that a discovery
dispute, which the parties are unable to resolve, has arisen.

The

Motion to Compel is therefore without merit.

WHEREUPON, plaintiff’s Motion to Compel, ECF 10, is DENIED.
It is RECOMMENDED that plaintiff’s Motion for Emergency Filing
Pursuant to the Prison Litigation Reform Act’s (PLRA) ‘Emminent [sic]
Danger Doctrine’, ECF 2, be DENIED.9

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
9

Although he failed to file a separate motion, plaintiff apparently seeks
leave to amend his complaint to add two new defendants and to modify his
request for damages. See Reply, pp. 11-14. The Court will address the
request for leave to amend in a separate decision.

15

v. Walters, 638 F.2d 947 (6th Cir. 1981).

January 30, 2015

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

16