Hendricks v. Mohr et al

Filing 44

REPORT AND RECOMMENDATION re 40 MOTION to Dismiss filed by Stuart Hudson, Gary Mohr, Andrew Eddy, Anthony Ayres, Arthur Hale and John Gardner in that it is RECOMMENDED that the Motion to Dismiss be granted in part and denied in part. Objections to R&R due by 6/14/2017. Signed by Magistrate Judge Terence P. Kemp on 5/31/17. (sem)(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
Benjamin Hendricks,

:

Plaintiff,

:

v.

:

Case No. 2:15-cv-3130

:

JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

Gary Mohr, et al.,
Defendants.

:

REPORT AND RECOMMENDATION AND ORDER
This matter is before the Court on a motion to dismiss filed
by defendants Anthony Ayers, Dr. Arthur Hale, Dr. Andrew Eddy,
John Gardner, Director Gary Mohr, Stuart Hudson and the State of
Ohio on behalf of certain unserved defendants.

Plaintiff

Benjamin Hendricks has filed a response and the motion has been
fully briefed.

For the following reasons, the Court will

recommend that the motion to dismiss be granted in part and
denied in part.
I. Background
A.

Procedural History

Mr. Hendricks submitted his original complaint relating to
the claims he is attempting to pursue in this case in August,
2012.

At that point, Robert Austin was a co-plaintiff and the

case was assigned Case No. 2:12-cv-729.

The complaint named as

defendants Mr. Ayers, Dr. Eddy, Mr. Gardner, Dr. Hale, Governor
John Kasich, Dr. Khan, Gary Mohr, Mona Parks, and 50 John/Jane
Does.

Upon initial screening in October, 2012, then assigned

Magistrate Judge Abel directed the Clerk to open a separate case
to address Mr. Austin’s claims.

That case was opened as Austin

v. Kasich, Case No. 2:12-cv-983 and was closed on December 1,
2015.

Mr. Hendricks remained as the named plaintiff in Case No.

2:12-cv-729.
In the initial screening Report and Recommendation in that
case, Magistrate Judge Abel recommended that Mr. Hendricks’
claims against Ms. Parks, Dr. Hale, Dr. Khan and Mr. Ayres be
dismissed for failure to state a claim.

He further recommended

that Mr. Hendricks’ claims against Governor Kasich, Mr. Mohr, Dr.
Eddy, and Mr. Gardner be permitted to proceed because he had
stated a claim for a violation of his Eighth Amendment rights
arising from the alleged denial of medical care.

More

specifically, the Magistrate Judge found that, for screening
purposes, Mr. Hendricks had stated a claim relating to his
shoulder prosthesis against Dr. Eddy and Mr. Gardner; a claim
relating to his hernias against Mr. Gardner; and a claim relating
to alleged cost cutting measures resulting in the denial of
treatment against Governor Kasich and Director Mohr.

The

Magistrate Judge recommended the dismissal of Mr. Hendricks’
claims relating to his Crohn’s disease, diversion colitis, and
pain management.

By order dated May 21, 2013, the assigned

District Judge granted Governor Kasich’s motion to dismiss and
adopted and affirmed Judge Abel’s Report and Recommendation.
Shortly following the Court’s order, the Court of Appeals
issued its decision in LaFountain v. Harry, 716 F.3d 944 (6th
Cir. 2013), holding that, “under Rule 15(a) a district court can
allow a plaintiff to amend his complaint even when the complaint
is subject to dismissal under the PLRA.”

Id. at 951.

Consequently, by order dated May 16, 2014, Mr. Hendricks was
granted leave to amend his complaint in Case No. 2:12-cv-729, in
part.

That order described Mr. Hendricks’ proposed amendments as

follows:
Mr. Hendricks seeks to add four previously unnamed
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defendants - Steve Huffman, Stuart Hudson, Christine
Hall, and Dr. Christiansen, also referred to as Dr.
Christenson. He also seeks to revive his previously
dismissed claims in this case relating to his medical
conditions, which are exceedingly well-documented in
the records of this Court, including a shoulder
prosthesis, ventral and parastomal hernias, pain
management, Crohn’s disease and diversion colitis. The
Court’s reading of the proposed amended complaint is
borne out by Mr. Hendricks’ reply which contains, in
response to defendants’ opposition, his more specific
intentions in seeking to amend.
The Court permitted Mr. Hendricks to amend his complaint as
it related to his claim that he had been denied medical treatment
for his shoulder prosthesis against Dr. Eddy and Mr. Gardner to
include allegations directed to Ms. Hall, Dr. Christenson, Dr.
Hale, Dr. Khan, and Mr. Ayres.

The Court further permitted Mr.

Hendricks to amend his complaint as it related to his Crohn’s
disease to assert a claim against Dr. Hale, Dr. Khan, and Mr.
Ayres.

Additionally, the Court allowed Mr. Hendricks to include

a claim relating to his diversion colitis against Mr. Gardner,
Ms. Hall, Dr. Eddy, Dr. Christenson, Dr. Hale, Dr. Khan, and Mr.
Ayres.

The Court denied, on grounds of futility, Mr. Hendricks’

claim relating to his ventral and parastomal hernias and his
claim relating to pain management.

With respect to both of these

claims, the Court concluded that Mr. Hendricks had alleged
nothing beyond a difference of opinion regarding his medical care
insufficient to state a constitutional claim under the Eighth
Amendment.

Finally, the Court permitted an amendment to include

a claim for declaratory or injunctive relief only as to Mr.
Hudson, Mr. Huffman, and Director Mohr and relating only to Mr.
Hendricks’ claim regarding his shoulder.

The Court directed Mr.

Hendricks to file an amended complaint consistent with the order
within fourteen days of its date.
Mr. Hendricks did not file an amended complaint as directed.
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Rather, on May 21, 2014, he filed a motion to voluntarily dismiss
his complaint without prejudice.

On July 24, 2014, the Court

issued a Report and Recommendation recommending that Mr.
Hendricks’ unopposed motion be granted.

This Report and

Recommendation was adopted by order dated November 25, 2014 and
judgment was entered that same date.
On October 5, 2015, Mr. Hendricks filed a motion to reopen
the case, relying, at least to some extent, on Ohio’s Savings
Statute.

That motion, which defendants opposed on grounds of

personal jurisdiction and Mr. Hendricks’ failure to file an
amended complaint as directed, was granted by order dated March
15, 2016.

That order, directing the opening of this case, Case

No. 2:15-cv-3130, stated:
... The Clerk shall open a new civil action. The
effective filing date of that action is October 5,
2015. A copy of the motion to reopen and all
subsequent filings in this case, including this
Opinion and Order, shall be docketed in the newlyfiled case. Mr. Hendricks shall file a complaint
under the new case number within 30 days of the date
of this order. He is responsible for paying the
filing fee for that action, which he should do within
thirty days, and for serving the complaint on the
defendants, unless he applies for and is granted in
forma pauperis status. Mr. Hendricks should contact
the Clerk’s office regarding his request for copies of
any prior filings in this case.
Almost immediately, Mr. Hendricks requested an extension of
time to file his complaint.

Ultimately, on August 30, 2016, Mr.

Hendricks filed his current complaint.

The moving Defendants

filed their motion to dismiss on January 19, 2017.
B.

Current Complaint

Mr. Hendricks’ current complaint names as defendants
Director Mohr, Dr. Eddy, Mr. Gardner, John DesMarais, Dr. Hale,
Dr. Khan, Mr. Ayres, Mr. Huffman, Mr. Hudson, Ms. Hall, Dr.
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Christenson, Dr. Akasubo, and 50 John/Jane Does, in both their
individual and official capacities.

The complaint sets forth

claims relating to Mr. Hendricks’ alleged denial of medical care
for his left shoulder prosthesis, Crohn’s disease, and diversion
colitis.

Mr. Hendricks also includes claims for the denial of

medical care relating to his ventral and parastomal hernias and
pain management.
As explained above, Mr. Hendricks’ current complaint is the
third iteration of his claims relating to his various medical
conditions.

The Court will not include a detailed explanation of

these claims here for two reasons.

First, they have been

extremely well-documented over the course of Mr. Hendricks’
litigation.

More importantly, however, a detailed discussion of

their nature is not necessary to a resolution of the motion to
dismiss.

Rather, as explained below, the basis of the

Defendants’ motion is that Mr. Hendricks’ claims are barred by
the statute of limitations.

The Court will address the details

of Mr. Hendricks’ claims only to the extent that they bear on
this issue.

It is to that motion that the Court will now turn.
C.

Motion to Dismiss

In the motion to dismiss, Defendants first note that service
has not been executed on Dr. Christenson, Ms. Hall, Dr. Akusoba,
Dr. Khan, or Mr. Huffman.

Further, they note that Mr. Hendricks’

current complaint does not comply with the Court’s order denying
the motion to amend to the extent Mr. Hendricks seeks to assert
claims relating to his hernias and alleged improper pain
management.
More substantively, Defendants contend that Mr. Hendricks’
claims in his original complaint arose more than two years prior
to the submission date of his original complaint on August 10,
2012.

As a result, they assert, Mr. Hendricks’ claims are

barred by the two-year statute of limitations applicable to
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claims brought under 42 U.S.C. §1983.

As Defendants read the

allegations of Mr. Hendricks’ complaint, June 21, 2010 is the
last date by which he could have known of any injury relating to
his shoulder, the treatment for his Crohn’s disease was stopped
after a few infusions beginning in September, 2008, and he was
not treated for his colitis after his 2009 surgery.

They explain

that, because Mr. Hendricks’ complaint was untimely in the first
instance, the Ohio Savings Statute is inapplicable here.

They

also assert that they are entitled to qualified immunity.
Mr. Hendricks filed an uncharacteristically brief threeparagraph response.

The gist of his argument is that his action

was brought well within the statute of limitations because of the
continuing harm doctrine.
In reply, Defendants note both the untimeliness of Mr.
Hendricks’ response and his apparent concession regarding failure
to perfect service on certain defendants.

The focus of their

reply, however, is that the continuing harm doctrine cited by Mr.
Hendricks does not apply to 42 U.S.C. §1983 cases.

They also

reiterate their claim of qualified immunity.
II.

Legal Standard

Fed.R.Civ.P. 12(b)(6) provides that the Court may, upon
motion, dismiss a claim for relief asserted in any pleading for
failure to state a claim upon which relief can be granted.
Fed.R.Civ.P. 8(a) requires the party pleading a claim for relief
to make a “short and plain statement of the claim showing that
the pleader is entitled to relief.”

When evaluating such a claim

in the context of a Rule 12(b)(6) motion, the Court must
ordinarily accept as true all of the well-pleaded factual
allegations of the complaint.

However, Rule 8(a) has been

interpreted to require that the pleader allege “more than labels
and conclusions, and a formulaic recitation of the elements of a
cause of action will not do ....”
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Bell Atlantic v. Twombley, 550

U.S. 544, 555 (2007).

Moreover, the factual allegations

themselves “must be enough to raise a right to relief above the
speculative level ....”

Id.

Twombley established a test of “facial plausibility,”
replacing the prior standard, announced in Conley v. Gibson, 355
U.S. 41 (1957), under which a complaint was able to withstand a
motion to dismiss if there were any possibility that the pleader
could prove a viable claim for relief.

Expanding upon Twombley’s

“facial plausibility” test, the Supreme Court, in Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009), held that “[a] claim has
facial plausibility when the plaintiff pleads factual content
that allows the Court to draw a reasonable inference that the
defendant is liable for the misconduct alleged.”

Iqbal

reiterated the principle that legal conclusions, couched as
factual allegations, need not be accepted as true, and that the
mere recital “of the elements of a cause of action, supported by
mere conclusory statements,” cannot save a claim from dismissal
under Rule 12(b)(6).

Id. at 1950.

Further, Iqbal allows the

reviewing court “to draw on its judicial experience and common
sense” when deciding if it is plausible that the pleader can,
based on the facts alleged, obtain any relief.

Id.

It is still

true, however, that pro se complaints are construed liberally in
favor of the pleader, even though they, too, must satisfy the
“facial plausibility” standard articulated in Twombley.

See

Haines v. Kerner, 404 U.S. 519 (1972); Stanley v. Vining, 602
F.3d 767, 771 (6th Cir. 2010); see also Erickson v. Pardus, 551
U.S. 89 (2007).

It is with these standards in mind that the

instant motion will be decided.
III.
A.

Analysis

Statute of Limitations

The Court’s analysis begins with a brief discussion of
precisely which of Mr. Hendricks’ claims were before the Court
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when he moved to voluntarily dismiss his original action.

As

explained above, these claims included only those relating to Mr.
Hendricks’ shoulder prosthesis, Crohn’s disease, and diversion
colitis.

These are the claims to which the Defendants’ motion to

dismiss on statute of limitations grounds is directed.
Turning to this issue, in Browning v. Pendleton, 869 F.2d
989 (6th Cir. 1989), the Court of Appeals determined that the
statute of limitations applicable to claims arising under 42
U.S.C. 1983 is the two-year statute of limitations found in Ohio
Revised Code §2305.10.

Ordinarily, the limitation period begins

to run when a plaintiff knows or has reason to know of the injury
which is the basis of his action.

Kuhnle Bros., Inc. v. County

of Geauga, 103 F.3d 516, 520 (6th Cir. 1997).

Mr. Hendricks

submitted his original complaint in this case in August, 2012.
Consequently, the issue before the Court is whether any of the
events that form the basis of Mr. Hendricks’ claims can be found
to have occurred prior to August, 2010.
Mr. Hendricks’ current complaint, despite its status as the
third version, remains rather light on specifics.

He does not

provide much detail in way of a timeframe as it relates to his
claim involving his shoulder prosthesis.

For example, with

respect to this claim, the complaint states:
27) Sometime in June 2010 Plaintiff was seen to
determine if he had any medical issues that might be a
deterrent to performing surgery and he was medically
cleared and told surgery was set for and around June
21, 2010.
28) Plaintiff was informed a few days later that his
surgery was canceled and was given no reason for the
cancellation and the appointment was never rescheduled.
Similarly, with respect to Mr. Hendricks’ claim relating to
medical care for his Crohn’s disease, the complaint states:
36) Shortly after his incarceration in September 2009
Plaintiff was briefly hospitalized at OSUMC where he
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was started on Remicade.
37) After a couple of infusions Defendant DesMarais
stopped the treatment and nothing else was done to
treat/maintain this medical condition causing pain,
bleeding, etc.
Finally, with respect to his claim relating to his diversion
colitis, Mr. Hendricks states in his complaint:
53) During recovery from the 2009 hernia repair it was
discovered Plaintiff also had diversion colitis and the
treating physician at OSUMC started short-chain fattyacid enemas as the normal/standard treatment.
54) Upon Plaintiff’s discharge from OSUMC this
treatment was discontinued by Defendant Akasubo with no
reason given even though symptoms persisted.
55) When plaintiff was sent back to PCI he complained
to his treating physician and was told Defendant
DesMarais refused to approve the enemas because they
were non-formulary.
56) After 2 years of complaints, bleeding and pain
Plaintiff had a meeting with Defendant Gardner who
initially approved the enemas.
...
62) Plaintiff suffered pain, bleeding, mental anguish
and other medical complications at the hands of
Defendants Akasubo, DesMarais, Gardner, Eddy, Hall,
Christenson, Hale, Khan and Ayers from November 2009 to
November 2014.
Clearly, based on the minimal allegations addressed to the
time frame of events, Mr. Hendricks’ claims regarding his
shoulder prosthesis and Crohn’s disease can be found to have
arisen prior to August, 2010.

The initial triggering event cited

by Mr. Hendricks relating to his shoulder was the alleged surgery
cancellation without reason in late June, 2010.

Further, the

triggering event as he describes it with respect to his Crohn’s
disease was the cessation of his Remicade treatment following his

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release from OSUMC in 2009.
dates with specificty.

Beyond this, he cites no additional

Instead, as he explains in his response,

he is relying on the continuing violation doctrine to save these
claims. Defendants are correct, however, that that doctrine is
rarely applied to §1983 claims.
As the Court of Appeals has explained:
[A] “continuous violation' exists if: (1) the
defendants engage in continuing wrongful conduct; (2)
injury to the plaintiffs accrues continuously; and (3)
had the defendants at any time ceased their wrongful
conduct, further injury would have been avoided.”
Hensley v. City of Columbus, 557 F.3d 693, 697 (6th
Cir. 2009) (citations omitted). “A continuing violation
is occasioned by continual unlawful acts, not continual
ill effects from an original violation.” Eidson v.
Tenn. Dep't of Children's Servs., 510 F.3d 631, 635
(6th Cir. 2007) (internal quotation marks and
alteration omitted).
Broom v. Strickland, 579 F.3d 553, 555 (6th Cir. 2009).
At best, Mr. Hendricks asserts with respect to these claims
what can only be described as passive inaction after the alleged
original denial of care in June, 2010 for his shoulder prosthesis
and the fall of 2009 for his Crohn’s disease.

For example, with

respect to his claim regarding his shoulder prosthesis, his
allegations further state very generally that “after a few years”
he had a meeting to discuss his need for surgery and there was
agreement regarding the decision to deny surgery.

Similarly,

with respect to his claim regarding his treatment for Crohn’s
disease, he generally alleges that he “asked several times over
the years about some form of treatment and has been continually
denied.”

This is insufficient to demonstrate a continuing

violation.

Eidson v. State of Tennessee Dept. of Children’s

Services, 510 F.3d 631, 635 (6th Cir. 2007)(“Passive inaction
does not support a continuing violation theory”).

That is,

“[a]ctual actions ... of refusing medical care represent discrete
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unlawful acts (beyond passive inaction) that trigger the statute
of limitations.”

Bruce v. Correctional Medical Services, Inc.,

389 Fed.Appx. 462, 466-467 (6th Cir. 2010).

Mr. Hendricks simply

does not identify any discrete action taken by any Defendants
within the statute of limitations period with sufficient
specificity to satisfy his burden here.

Consequently, the Court

will recommend that the motion to dismiss be granted as to Mr.
Hendricks’ claims relating to his shoulder prosthesis and Crohn’s
disease.

This includes any claim for declaratory relief relating

to his shoulder prosthesis.
Mr. Hendricks’ allegations with respect to his colitis
condition, however, are just slightly more detailed.

With

respect to this condition, Mr. Hendricks states that two years
after its discovery in 2009, Mr. Gardner approved the use of
enemas for treatment.

This allegation indicates that, at some

time in 2011, Mr. Gardner approved this course of treatment.

Mr.

Hendricks further alleges that, subsequently to Mr. Gardner’s
approval, certain other Defendants declined to resume this
approved treatment.

Construing the allegations in the light most

favorable to Mr. Hendricks, the decision not to resume treatment
for his colitis was made within two years of the submission of
his complaint in August, 2012.

As a result, this claim is not

barred by the statute of limitations.

Consequently, the Court

will not recommend that the motion to dismiss be granted as to
this claim on statute of limitations grounds.
B.

Ohio Savings Statute

Defendants further contend that the Ohio Savings Statute
does not operate to permit Mr. Hendricks’ untimely claims to
survive.

The Court agrees.

The Court of Appeals has determined that where a court
“‘uses a state’s Statute of Limitations, [it] also use[s] its
procedural rules affecting that Statute of Limitations[,]’
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including any savings statute.”

Engler v. Arnold, 2016 WL

2610515, *2 (N.D. Ohio May 6, 2016), quoting Coleman v. Dep’t of
Rehab. & Corr., 46 Fed.Appx. 765, 769 (6th Cir. 2002).

The Ohio

Savings Statute, Ohio Rev. Code 2305.19, states, in relevant
part:
In any action that is commenced or attempted to be
commenced, if in due time a judgment for the plaintiff
is reversed or if the plaintiff fails otherwise than
upon the merits, the plaintiff or, if the plaintiff
dies and the cause of action survives, the plaintiff's
representative may commence a new action within one
year after the date of the reversal of the judgment or
the plaintiff's failure otherwise than upon the merits
or within the period of the original applicable statute
of limitations, whichever occurs later.
In order for the savings statute to apply, the initial
action must have been filed within the applicable statute of
limitations.

Webster v. Spears, 664 Fed.Appx. 535, 537–38 (6th

Cir. 2016); see also Graf v. Cirino, 2011 WL 2731355, *2 (Ohio
8th Dist. July 14, 2011)(Savings statute may apply to a claim
filed within the time required by a statute of limitations but
dismissed without prejudice after the appropriate statute of
limitations has already expired).

Because, as explained above,

Mr. Hendricks’ claims relating to his shoulder prosthesis and
Crohn’s disease initially were filed outside the statute of
limitations, the Ohio Savings Statute does not apply to save
them.
This is not the situation, however, with respect to Mr.
Hendricks’ claim relating to his colitis.

The Court construed

the allegations of the complaint as sufficient at this stage to
demonstrate that this claim was filed within the applicable
statute of limitations period.

Further, a voluntary dismissal of

a claim constitutes a failure “otherwise than on the merits” for
purposes of the savings statute.

Cooper v. City of Westerville,

Ohio, 2014 WL 617650, *5 (S.D. Ohio Feb. 18, 2014).
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Additionally, there is no dispute here that Mr. Hendricks refiled his complaint within one year of his voluntary dismissal as
required by the savings statute.

Consequently, the Ohio Savings

Statute operates to preserve this claim, but only to the extent
that Mr. Hendricks’ complaint existed at the time of his
voluntary dismissal.
As explained above, Mr. Hendricks’ operative complaint at
that time is as reflected in the Court’s order allowing him leave
to amend.

At that point, Mr. Hendricks had asserted a claim

relating to his colitis against Mr. Gardner, Ms. Hall, Dr. Eddy,
Dr. Christenson, Dr. Hale, Dr. Khan, and Mr. Ayres.

Moreover,

this claim was addressed only to the time period through the
filing of Mr. Hendricks’ motion on September 6, 2013.

For this

same reason, the savings statute does not work to save Mr.
Hendricks’ claims relating to his hernias and pain management to
the extent he is attempting to reassert them in his current
complaint.
C.

Qualified Immunity

To the extent that Defendants also raise the issue of
qualified immunity, the Court will not recommend the dismissal of
Mr. Hendricks’ remaining claim on this ground.

While Defendants

assert this defense generally, they do not explain how it applies
to the circumstances of this case.

They essentially contend that

their use of the phrase “qualified immunity” shifts the burden to
Mr. Hendricks to demonstrate that they are not entitled to it.
This argument is without merit and need not be addressed further.
D.

Remaining Issues

As Defendants note, service has not been completed on Dr.
Christenson, Ms. Hall, Dr. Akusoba, Dr. Khan, and Mr. Huffman.
The Court’s docket further reflects that service also has not
been completed on Dr. DesMarais or any of the John/Jane Doe
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defendants.

Mr. Hendricks did not address this issue in his

response.
Fed. R. Civ. P. 4(m) provides:
If a defendant is not served within
90 days after the complaint is filed,
the court - on motion or on its own after
notice to the plaintiff - must dismiss the
action without prejudice against that
defendant or order that service be made
within a specified time. But, if the
plaintiff shows good cause for the failure,
the court must extend the time for service
for an appropriate period.
Because Mr. Hendricks has failed to show good cause why
service was not made it will be recommended that his claims
against these defendants be dismissed pursuant to Fed. R. Civ.
P.4(m).
Finally, to the extent that Mr. Hendricks requested the
appointment of counsel in his response, because this action has
not yet progressed to the point that the Court is able to
evaluate the merits of his claim, the motion for appointment of
counsel is denied.

See Mars v. Hanberry, 752 F.2d 254 (6th Cir.

l985).
IV.

Recommendation and Order

For the reasons set forth above, it is recommended that the
motion to dismiss (Doc. 40) be granted in part and denied in
part.

It should be granted as to the Eighth Amendment claims

relating to Mr. Hendricks’ shoulder prosthesis, Crohn’s disease,
hernias, and pain management.

It should be denied as to his

Eighth Amendment claim relating to his colitis through September
6, 2013.

All claims against

Dr. Christenson, Ms. Hall, Dr.

Akusoba, Dr. Khan, and Mr. Huffman, Dr. DesMarais and the
John/Jane Doe defendants should be dismissed pursuant to Rule
4(m).

Mr. Hendricks’ request for appointment of counsel is

denied.
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PROCEDURE ON OBJECTIONS TO REPORT AND RECOMMENDATION
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
MOTION FOR RECONSIDERATION OF ORDER
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.

The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
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This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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