Joseph et al v. Hampton et al

Filing 18

REPORT AND RECOMMENDATIONS re 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Christie Hampton, Jordan Hollingshead, Unknown Employees of the Clerk, Dean Wilson, Timothy Wollenberg, David Freriks. Objections to R&R due by 6/22/2015. Signed by Magistrate Judge Norah McCann King on 6/5/2015. (pes)(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

DAVID A. JOSEPH, SR., et al.,
Plaintiffs,
vs.

Civil Action 2:15-cv-0085
Judge Watson
Magistrate Judge King

CHRISTIE HAMPTON, et al.,
Defendants.

REPORT AND RECOMMENDATION
Only the claims of plaintiff David A. Joseph, Sr., a state inmate
who is proceeding without the assistance of counsel, remain.
and Order, ECF 5.

Opinion

This matter is before the Court on Defendants’

Motion to Dismiss, ECF 9 (“Motion to Dismiss”).
I.

BACKGROUND
Plaintiff, currently incarcerated at the Marion Correctional

Institution (“MCI”) and formerly incarcerated at the Pickaway
Correctional Institution (“PCI”), filed this action on January 15,
2015, suing several defendants in their individual capacities:
Christie Hampton, Clerk of the Perry County Court; Dean Wilson, Judge
of the Perry County Court; Jordan Hollingshead, Probation Officer with
the Perry County Court; Timothy Wollenburg, the Clerk of the Court of
Common Pleas for Perry County; and David Freriks, a Perry County
Commissioner.

Complaint, ECF 3, PAGEID#:22-23, 27-28; Plaintiff’s

Response to Defendant[s]’ Motion to Dismiss, ECF 16 (“Opposition”), p.
1 (clarifying that defendants are sued in their individual

1

capacities).

Plaintiff alleges that defendant Hampton, acting under

color of law and outside the scope of her duties, conspired with
defendants Wilson and Hollingshead to violate plaintiff’s rights under
the United States Constitution and under state law “by failing to
respond to repeated requests by both the Plaintiff, and the State ODRC
for a fast and speedy trial, by failing to file motions mailed in by
plaintiff and by failing to schedule or otherwise bring [these]
motions to the attention of the Court in direct violation of their
duties.”

Complaint, PAGEID#:28.

Plaintiff further alleges that

defendants Hampton, Wilson, Hollingshead and other unknown employees
of the Perry County Court Clerk’s Office “did verbally and in writing
make false statements, commit perjury, and falsify documents sent to
the ODRC by alleging that Plaintiff was wanted for a probation
violation,” knowing that he “had never been on probation or even
sentenced for a crime in their County Court.”

Id.

Plaintiff alleges

that defendants committed these acts “with the express purpose of
denying Plaintiff a fast and speedy trial on an outstanding
misdemeanor charge in their County.”

Id.

According to plaintiff,

these actions “were done utilizing their [defendants’] official
capacity of their jobs but were outside the scope of their official
job duties in a manner which] violated plaintiff’s constitutional
rights.

Id.

Plaintiff goes on to allege that defendants’ actions

interfered with his release from prison, resulting in continued
incarceration as well as emotional distress and financial hardship.
Id. at PAGEID#:28-29.

Although not a model of clarity, plaintiff

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apparently asserts violations of his right to a fast and speedy trial
and his right to due process; unlawful detention under the Fourth
Amendment; a denial of his constitutional right of access to the
courts; and a conspiracy to violate his constitutional rights.
Opposition, p. 2.

Id.;

Plaintiff also asserts state law claims of false

imprisonment, “dereliction of duty,” perjury, and “falsification of
official documents.”

Id.

Plaintiff seeks damages in the amount of

$8,250,000, unspecified punitive damages, and costs.

Complaint,

PAGEID#:29.
Defendants have moved to dismiss the Complaint pursuant to Fed.
R. Civ. P. 12(b)(6), which plaintiff has opposed.
Dismiss; Opposition.

See Motion to

With the filing of Defendants’ Reply to

Plaintiff’s Response to Defendants’ Motion to Dismiss, ECF 17
(“Reply”), this matter is ripe for review.
II.

STANDARD
A motion to dismiss under Rule 12(b)(6) attacks the legal

sufficiency of the complaint.
559, 566 (6th Cir. 2003).

Yuhasz v. Brush Wellman, Inc., 341 F.3d

In determining whether dismissal on this

basis is appropriate, a court must construe the complaint’s
allegations in the light most favorable to the plaintiff and accept as
true all well-pled factual allegations.

See Janosek v. City of

Cleveland, 718 F.3d 578, 581 (6th Cir. 2013) (quoting U.S. Citizens
Ass’n v. Sebelius, 705 F.3d 588, 597 (6th Cir. 2013)).

A motion to

dismiss will be granted only if the pleading fails to allege “enough
facts to state a claim to relief that is plausible on its face.”

3

Bell

Corp. v. Twombly, 550 U.S. 544, 570 (2007).

See also Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009) (“When there are well-pleaded factual
allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.”).
Plaintiff is proceeding without the assistance of counsel.
Generally, pleadings by pro se plaintiffs are to be construed
liberally and are held “to less stringent standards than formal
pleadings drafted by lawyers.”
(1972).

Haines v. Kerner, 404 U.S. 519, 520

“This standard does not mean, however, that pro se plaintiffs

are entitled to take every case to trial.”

Ashiegbu v. Purviance, 74

F. Supp. 2d 740, 749 (S.D. Ohio 1998) (citing Pilgrim v. Littlefield,
92 F.3d 413, 416 (6th Cir. 1996)).
III. DISCUSSION
A.

Claims Against Defendants Timothy Wollenburg and David
Freriks

The parties agree that the Court should dismiss the claims
against defendants Timothy Wollenburg and David Freriks.

Motion to

Dismiss, pp. 6-8; Opposition, p. 3; Reply, pp. 5-6.
B.

Official Capacity Claims

The defendants argue that, to the extent the Complaint names
defendants in their official capacities, plaintiff fails to identify a
policy or custom of any governmental agency and therefore fails to
state a claim under Fed. R. Civ. P. 12(b)(6).
2-3.

See also Reply, pp. 2-3.

Motion to Dismiss, pp.

Plaintiff clarifies that he has sued

defendants only in their individual capacities. Opposition, p. 1.
Therefore, the Motion to Dismiss, as it relates to official capacity

4

claims, is moot.
C.

Constitutional Claims
1.

Speedy-trial claim

Although the Complaint does not cite 42 U.S.C. § 1983,
plaintiff’s claims are based on alleged violations of his civil
rights.

See generally Complaint.

Construing plaintiff’s pro se

Complaint liberally, see Haines, 404 U.S. at 520, the Court will
consider plaintiff’s claims under Section 1983. That statute 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 under § 1983, “‘a plaintiff

must set forth facts that, when construed favorably, establish (1) the
deprivation of a right secured by the Constitution or laws of the
United States (2) caused by a person acting under color of state
law.’”

Heyerman v. County of Calhoun, 680 F.3d 642, 647 (6th Cir.

2012) (quoting Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th
Cir. 2006)).

Because Section 1983 is a method for vindicating federal

rights, and is not itself a source of substantive rights, the first
step in an action under Section 1983 is to identify the specific
constitutional right allegedly infringed.

Albright v. Oliver, 510

U.S. 266, 271 (1994).
Plaintiff alleges, inter alia, that defendants’ actions resulted

5

in his continued incarceration and violated his right to a fast and
speedy trial.

Complaint, PAGEID#:28-29.

Although plaintiff does not

specify the constitutional right allegedly infringed, defendants
interpret these allegations as a claimed violation of plaintiff’s
rights under the Sixth Amendment to the United States Constitution.
Motion to Dismiss, pp. 3-4; Reply, pp. 2-3.

The Sixth Amendment

guarantees that, “in all criminal prosecutions, the accused shall
enjoy the right to a speedy . . . trial . . . .”
VI.

U.S. Const. amend.

In analyzing a Sixth Amendment claim, the Court considers the

following:

“whether delay before trial was uncommonly long, whether

the government or the criminal defendant is more to blame for that
delay, whether, in due course, the defendant asserted his right to a
speedy trial, and whether he suffered prejudice as the delay’s
result.”

Doggett v. United States, 505 U.S. 647, 651 (1992) (citing

Barker v. Wingo, 407 U.S. 514, 530 (1972)).

See also Heyerman, 680

F.3d at 649 (“A speedy-trial violation “requires two things – state
lethargy and a state trial.

To the extent money damages under § 1983

are available at all for a speedy-trial violation . . .

a claimant

must show both elements.”) (Sutton, J., concurring) (emphasis in
original) (citing, inter alia, Doggett, 505 U.S. at 651-52 (1992)).
Defendants contend that plaintiff fails to state a Sixth Amendment
claim because he does not allege, and later acknowledges, that the
proceedings against him were voluntarily dismissed and that a trial
never occurred.

Motion to Dismiss, pp. 3-4 (citing Heyerman, 680 F.3d

at 649-50; United States v. MacDonald, 456 U.S. 1, 6 (1982) (“The

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speedy trial clause of the Sixth Amendment has no application after
the Government, acting in good faith, formally drops charges”));
Reply, pp. 2-3.

Plaintiff responds that the Court should construe his

pro se Complaint liberally and that his allegations state a claim
sufficient to survive the Motion to Dismiss.
Plaintiff’s arguments are well-taken.

Opposition, pp. 1-3.
Although the defendants

present evidence of a voluntary dismissal of the criminal action
against plaintiff, see Exhibit A, attached to Motion to Dismiss, the
record is more ambiguous as to the criminal case proceedings leading
up to that dismissal.

Although it appears that no trial ever occurred

in the proceedings against plaintiff, any ambiguity in this regard
must be construed in a light most favorable to plaintiff.

Moreover,

plaintiff challenges defendants’ reliance on MacDonald, 456 U.S. at 6,
and, specifically, their position that the voluntary dismissal of the
action precludes his speedy-trial claim.

Opposition, p. 2.

Plaintiff

alleges facts that defendants failed to act in good faith when
dismissing the criminal case against him.
28.

Id.; Complaint, PAGEID#:

Although plaintiff may not ultimately prevail on his Sixth

Amendment claim, the Court cannot say that the Complaint does not
state a plausible claim for relief at this stage in the litigation.
See, e.g., Iqbal, 556 U.S. at 679.
2.

Due process

Defendants argue that plaintiff’s due process claim must fail
because he complains only about the length of his incarceration and
not about the conditions of his confinement.

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Reply, pp. 3-5.

This

Court disagrees.

Plaintiff specifically alleges that his

incarceration caused him “extreme emotional distress” and “anxiety.”
Complaint, PAGEID#:28.

These allegations, construed in a light most

favorable to plaintiff, are sufficient to overcome the Motion to
Dismiss.
3.

Unlawful detention

Defendants do not address plaintiff’s claim under the Fourth
Amendment, which protects the “right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures.”

U.S. Const. amend. IV.

Under the Fourth

Amendment, plaintiff is entitled to a “fair and reliable determination
of probable cause as a condition for any significant pretrial personal
restraint of liberty.”

Gerstein v. Pugh, 420 U.S. 103, 124 (1975).

The Complaint alleges that plaintiff was unfairly detained without
cause as a result of defendants’ actions or inaction.
PAGEID#:28.

See Complaint,

At this juncture, these allegations are, in this Court’s

view, sufficient to state a Fourth Amendment claim.
4.

Access to the courts

Plaintiff alleges that defendants denied him access to the
courts.

Complaint, PAGEID#:28.

The First Amendment to the United

States Constitution guarantees to inmates a right of access to the
courts.

Lewis v. Casey, 518 U.S. 343 (1996); Bounds v. Smith, 430

U.S. 817 (1977); Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.
1996).

In order to prevail on a claim of denial of the right of

access to the courts, “a plaintiff must show actual injury.”

8

Harbin-

Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005).
In the case presently before the Court, the Complaint, construed
in a light most favorable to plaintiff, alleges that defendants
repeatedly failed to, inter alia, file his motions, resulting in
injury.

Complaint, PAGEID#:28.

Defendants do not address this claim.

Based on the present record, the Court concludes that plaintiff’s
allegations in this regard state a claim for denial of access to the
courts.
5.

Conspiracy

Construing the Complaint liberally, plaintiff appears to allege a
conspiracy to violate his constitutional rights.
PAGEID#:28.

Complaint,

“A civil conspiracy is an agreement between two or more

persons to injure another by unlawful action.”
F.2d 935, 943-44 (6th Cir. 1985).

Hooks v. Hooks, 771

A plaintiff may successfully plead

a § 1983 civil conspiracy by alleging “that (1) a single plan existed,
(2) the conspirators shared a conspiratorial objective to deprive the
plaintiffs of their constitutional rights, and (3) an overt act was
committed.”

Revis v. Meldrum, 489 F.3d 273, 290 (6th Cir. 2007).

However, “[i]t is well-settled that conspiracy claims must be pled
with some degree of specificity and that vague and conclusory
allegations unsupported by material facts will not be sufficient to
state a claim under § 1983.”

Gutierrez v. Lynch, 826 F.2d 1534, 1538

(6th Cir. 1987).
The Complaint alleges that defendants Hampton, Wilson, and
Hollingshead conspired to violate, inter alia, his constitutional

9

rights:
Betwee[n] August 2010 and Present Christie Hampton, acting
in her official capacity as Clerk of County Court of Perry
County, did under color of her office, acting outside the
scope of her duties conspire with, or did act in a manner
with the unknown employees of the Clerks [sic] office, Dean
Wilson, and Jordan Hollingshead, to violate plaintiffs
[sic] State and Federal Constitutional rights to Due
Process, and a Fast and Speedy Trial, by failing to respond
to repeated requests by both the Plaintiff, and the State
ODRC for a fast and speedy trial, by failing to file
motions mailed in by plaintiff and by failing to schedule
or otherwise bring thewse [sic] motions to the attention of
the Court in direct violation of their duties.
Complaint, PAGEID#:28.

Defendants contend that these allegations are

conclusory and therefore fail to state a claim upon which relief may
be granted.
agrees.

See Motion to Dismiss, p. 8; Reply, p. 7.

This Court

While plaintiff identifies the actions allegedly taken by the

three defendants, he does not allege the existence of any agreement or
shared plan among these defendants to violate his constitutional
rights.
claim.

Plaintiff’s failure in this regard is fatal to his conspiracy
See, e.g., Huffer v. Bogen, No. 11-4289, 503 F. App’x 455, at

*462 (6th Cir. Nov. 1, 2012) (finding that the plaintiff failed to
state a claim of conspiracy where he “merely described the actions
taken by various individual defendants, asserting that their actions
were taken in furtherance of a conspiracy” and where the claim “fails
to include allegations regarding an agreement or shared plan between
the individual defendants to violate his civil rights”).
D.

Immunity

Defendants argue that, even if plaintiff has stated a claim for a
constitutional deprivation, defendants Wilson, Hampton, and

10

Hollingshead (“three defendants”) are judicial officers who performed
traditional judicial acts and functions.
Reply, p. 5.

Motion to Dismiss, pp. 5-6;

Defendants therefore take the position that these three

defendants are entitled to absolute immunity from suit in their
individual capacity.

Id.

This Court again disagrees.

“Judges are absolutely immune from § 1983 suits arising out of
their performance of judicial functions.”

Huffer, 503 F. App’x at

*458 (citing Pierson v. Ray, 386 U.S. 547, 553-54 (1967)).

In

addition, “[o]ne who acts as the judge’s designee, and who carries out
a function for which the judge is immune, is likewise protected.”

Id.

at *461 (internal quotation marks and citations omitted) (applying
immunity to a probation officer and court clerk).

See also Smith v.

Leis, No. 09-3735, 407 F. App’x 918, 929 (6th Cir. 2007) (“Quasijudicial immunity extends to those persons performing tasks so
integral or intertwined with the judicial process that these persons
are considered an arm of the judicial officer who is immune.”).
“[J]udicial immunity applies to acts performed maliciously and
corruptly as well as acts performed in bad faith or with malice[.]”
Brookings v. Clunk, 389 F.3d 614, 617 (6th Cir. 2004).

However,

judicial immunity is unavailable for, inter alia, “nonjudicial
actions, i.e., actions not taken in the judge’s judicial capacity.”
Mireles v. Waco, 502 U.S. 9, 11 (1991).

Whether or not an act is

“judicial” relates “to the nature of the act itself, i.e., whether it
is a function normally performed by a judge, and to the expectations
of the parties, i.e., whether they dealt with the judge in his

11

judicial capacity.”

Stump v. Sparkman, 435 U.S. 349, 362 (1978).

In the case presently before the Court, plaintiff alleges, inter
alia, that these three defendants acted outside the scope of their
official duties and “did verbally and in writing make false
statements, commit perjury, and falsify documents sent to the ODRC
[Ohio Department of Rehabilitation and Correction.]”
PAGEID#:28.

Complaint,

Construing these allegations in a light most favorable to

plaintiff to assert that the three defendants acted outside of their
normal functions, the Court cannot say, based on the present record,
that judicial or quasi-judicial immunity bars plaintiff’s claims.
E.

State Law Claims

The Complaint apparently asserts state law claims of false
imprisonment, “dereliction of duty,” perjury, and “falsification of
official documents.”

Complaint, PAGEID#:28-29; Opposition, p. 2.

Defendants contend that they are entitled to dismissal of all these
claims. The Court will address each such claims.
1.

False imprisonment

Under Ohio law, a claim for false imprisonment “requires proof
that one was intentionally confined . . . for any appreciable time,
against his will and without lawful justification.”

Snyder v. United

States, 990 F. Supp. 2d 818, 829 (S.D. Ohio 2014) (quoting Evans v.
Smith, 97 Ohio App. 3d 59 (Ohio Ct. App. 1st Dist. 1994) (internal
quotation marks omitted)).

Defendants contend that “Plaintiff was

already imprisoned for an unrelated criminal conviction outside of
Perry County.

Therefore, Plaintiff was confined with lawful privilege

12

as he was already lawfully convicted and sentenced.”
(emphasis in original).

Reply, p. 7

The Complaint, however, alleges that

plaintiff “had never been on probation or even sentenced for a crime
in their [Perry] County Court” and that he was kept in prison because
of defendants’ actions or inaction.

See Complaint, PAGEID#:28.

Construing the Complaint in a light most favorable to the plaintiff,
these factual allegations are, in this Court’s view, sufficient to
state a claim for false imprisonment at this stage of the litigation.
2.

Dereliction of duty

In opposing the Motion to Dismiss, plaintiff clarifies that he
asserts a claim for “dereliction of duty.”

Opposition, p. 2.

However, the State of Ohio has codified dereliction of duty in a
criminal statute.

See O.R.C. § 2921.44 (providing, inter alia, that

dereliction of duty is a misdemeanor of the second degree). Ohio law
does not recognize a private cause of action for “dereliction of
duty.”

See, e.g., DeCosta v. Medina County, No. 1:04CV1118, 2006 U.S.

Dist. LEXIS 32070, at *21 (N.D. Ohio May 22, 2006) (“[D]ereliction of
duty pursuant to O.R.C. 2921.44[] is a criminal statute and therefore
does not constituted a separate civil cause of action in Ohio[.]”);
White v. Stafford, No. 61838, 1993 Ohio App. LEXIS 82, at *3 (Ohio Ct.
App. 8th Dist. Jan. 14, 1993) (“The dereliction of duty claim is a
criminal statute, not a civil claim for relief, and thereby fails.”).
Cf. Groves v. Groves, No. 09AP-1107, 2010-Ohio-4515, at *P25 (Ohio Ct.
App. 10th Dist. Sept. 23, 2010) (“A party must rely on a separate
civil cause of action, existent either in the common law or through

13

statute, to bring a civil claim based on a criminal act.”).
3.

Perjury

“In Ohio, allegations constituting perjury, subornation of
perjury and conspiracy to commit perjury, all of which, if proved, may
be punishable under criminal statutes, are not recognized as bases for
civil lawsuits.”

Simpson v. Columbus S. Power Co., No. C2-02-1080,

2003 U.S. Dist. LEXIS 13400, at *11 (S.D. Ohio July 15, 2003)
(collecting cases).
matter of law.

Accordingly, plaintiff’s perjury claim fails as a

See, e.g., id. at *12 (“Because Ohio law does not

recognize a civil cause of action for perjury, Plaintiff’s claim fails
as a matter of law.”); Young v. City of Columbus, No. 2:04-cv-673,
2007 U.S. Dist. LEXIS 1364, at *29 n.3 (S.D. Ohio Jan. 9, 2007) (“This
Court also notes that theft, tampering with evidence, and perjury are
all criminal offenses and, therefore, Plaintiff fails to state a claim
for which relief can be granted through civil suit.”); Morrow v.
Reminger & Reminger Co. LPA, 183 Ohio App. 3d 40, 51 (Ohio Ct. App.
10th Dist. June 9, 2009) (“While perjury, subornation of perjury, and
conspiracy to commit perjury are punishable under criminal statutes,
they may not, for public policy reasons, form the basis of a civil
lawsuit.”).
4.

Falsification of documents

The State of Ohio has codified “falsification” in a criminal
statute.

See O.R.C. § 2921.13.

Absent the initiation of criminal

charges or criminal proceedings under O.R.C. § 2921.13, Ohio law does
not recognize falsification as an independent civil cause of action:

14

However, R.C. 2921.13 is a criminal statute contained
within Title 29 of the Ohio Revised Code. Title 29 is a
criminal title. See Howard v. Supreme Court of Ohio, 10th
Dist. No. 04AP-1093, 2005 Ohio 2130 (holding R.C. 2921.13
is a criminal statute and finding the plaintiff failed to
point to any authority that permitted a civil action for
alleged violations of R.C. 2921.13). Defendant has pointed
to no authority, and our independent research has revealed
none, which supports the advancement of an independent
civil claim for falsification in a private action that is
in fact an original action, without the initiation of
criminal charges or criminal proceedings pursuant to R.C.
2921.13. Here, there is absolutely no evidence that
defendant was arrested for or charged or indicted for a
falsification offense.
Hershey v. Edelman, 187 Ohio App. 3d 400, 408 (Ohio Ct. App. 10th
Dist. 2010).
In the case presently before the Court, there are no allegations
that any criminal charge or proceeding for falsification has been
initiated against defendants.

See generally Complaint.

Accordingly,

plaintiff has failed to state a claim under Ohio law for
falsification.

See, e.g., id.; Slorp v. Lerner, Sampson & Rothfuss,

No. 13-3402, 587 Fed. Appx. 249, at *261 (6th Cir. Sept. 29, 2014)
(affirming dismissal of falsification claim because, under O.R.C. §
2921.13, “civil liability is predicated on criminal guilt” and the
effect of this statute “is to provide restitution to victims of the
criminal offense; it does not create civil liability absent criminal
conviction”).
WHEREUPON, it is RECOMMENDED that Defendants’ Motion to Dismiss,
ECF 9, be GRANTED as to all claims against defendants Timothy
Wollenburg and David Freriks, and GRANTED as to plaintiff’s claims of
conspiracy, dereliction of duty, perjury, and falsification of

15

documents.

It is FURTHER RECOMMENDED that Defendants’ Motion to

Dismiss be DENIED as moot as to any official capacity claims and
DENIED as to plaintiff’s claims based on violations of his right to a
speedy trial, his right to due process, his right of access to the
courts, his unlawful detention under the Fourth Amendment as well as
his state law claim of false imprisonment.
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).

June 5, 2015

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

16