Smith v. Thalheimer

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

GERALD K. SMITH,

Plaintiff,

v. Civil Action 2:20-cv-6297

Judge James L. Graham

Magistrate Judge Chelsey M. Vascura

TRAYCE THALHEIMER, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, Gerald K. Smith, an Ohio inmate who is represented by counsel, brings this

civil rights action under 42 U.S.C. § 1983 against the following Defendants: nine members of the

Ohio Parole Board; Annett Chambers-Smith, the Director of the Ohio Department of

Rehabilitation and Correction (“ODRC”); Norman Robinson, the Warden at London

Correctional Institution (“LCI”); three named LCI corrections officers (Defendants Frye,

Westfall, and Doyle); and 100 John and Jane Doe Defendants, who Plaintiff alleges are

employed with ODRC. Plaintiff alleges that he was denied parole in retaliation for exercising his

rights under the First Amendment. This matter is before the Court for the initial screen of

Plaintiff’s Complaint under 28 U.S.C. § 1915A to identify cognizable claims and to recommend

dismissal of Plaintiff’s Complaint, or any portion of it, which is frivolous, malicious, fails to

state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is

immune from such relief. Having performed the initial screen, for the reasons that follow, the

undersigned RECOMMENDS that the Court DISMISS this action pursuant to § 1915A for

failure to state a claim on which relief may be granted.

I. BACKGROUND

According to the Complaint, in March 2018, Defendant LCI Corrections Officer Westfall

issued a conduct report against Plaintiff for possessing material relating to an unauthorized group

in violation of Ohio Admin. Code § 5120-9-37(B). At the hearing for this conduct report,

Plaintiff successfully argued to Defendant LCI Corrections Officer Robinson that the material in

question was legal research materials, not unauthorized material as Defendant Westfall alleged.

Consequently, Defendant Robinson advised Defendant LCI Warden Taylor of his finding, and

Defendant Warden Taylor dismissed the March 2018 conduct report.

Plaintiff alleges that because Defendants Frye, Westfall, and Doyle were disgruntled that

the conduct report was dismissed, they colluded to retaliate against Plaintiff, which resulted in a

“bogus conduct report” being filed 45 days after the March 2018 conduct report was dismissed.

(Pl.’s Compl. 4, ECF No. 1–2 at PAGEID # 41.) Plaintiff alleges that ODRC Rules Infraction

Board (“RIB”) members presiding over the hearing on this second conduct report found Plaintiff

guilty of the charges advanced “to keep from having to return Plaintiff’s legal materials to him.”

(Id.) Plaintiff names these RIB members as Doe Defendants. Plaintiff alleges that his appeal of

the RIB decision was denied by Doe Defendants “who knew, or should have known, they were

furthering an agenda of retaliation.” (Id.)

Plaintiff alleges that almost two years later, in February 2020, the ODRC Parole Board

Defendants “in furtherance of a retaliatory agenda denied Plaintiff parole for exercising his First

Amendment Rights.” (Id. at PAGEID # 42.) He further alleges that his requests for

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reconsideration were denied by other Doe Defendants who “became part of the retaliatory

agenda . . . .” (Id.)

Under the section of his Complaint he captions “LEGAL CLAIMS/CAUSES OF

ACTION,” Plaintiff states as follows:

It is, or should be, known among all Defendants that retaliation for exercise

of First Amendment rights is prohibited conduct. ODRC POLICY 59-LEG-01

which Defendants are supposed to abide by states: “It is the policy of [ODRC] to

permit inmates access to legal counsel by means of visitation which will permit

confidential communication, uncensored written correspondence, and telephone

communication. Inmates shall have access to courts so that they may challenge

their convictions, sentences, or the conditions of their confinement . . . Pursuing

such legal matters shall not subject the inmate to reprisals or punishment of any

sort.” (Emphasis Added) Defendants individually and/or collectively engaged in

an ongoing retaliation agenda that continues through the present.

(Id. (emphasis in original).)

Plaintiff seeks declaratory, injunctive, and monetary relief. (Pl.’s Compl. 5–6, ECF No.

1–2 at PAGEID ## 42–43.)

II. STANDARD

Section 1915A requires trial courts to screen all complaints “in a civil action in which a

prisoner seeks redress from a governmental entity or officer or employee of governmental entity”

and to sua sponte dismiss an action or claim upon a determination by the Court that the action or

claim “is frivolous or malicious, or fails to state a claim upon which relief may be granted.” 28

U.S.C. § 1915A; see also Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal

Rule of Civil Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and

1915(e)(2)(B)(ii)).

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the

Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements

set forth in Federal Rule of Civil Procedure 8(a). Under Rule 8(a)(2), a complaint must contain a

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“short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2). Although this pleading standard does not require “‘detailed factual allegations,’

. . . [a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a

cause of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, a complaint will not “suffice if it

tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly,

550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a claim under Rule

12(b)(6) of the Federal Rules of Civil Procedure, “a complaint must contain sufficient factual

matter . . . to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550

U.S. at 570). Facial plausibility is established “when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. In considering whether this facial plausibility standard is met, a Court must

construe the complaint in the light most favorable to the non-moving party, accept all factual

allegations as true, and make reasonable inferences in favor of the non-moving party. Total

Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir.

2008) (citations omitted). The Court is not required, however, to accept as true mere legal

conclusions unsupported by factual allegations. Iqbal, 556 U.S. at 678 (citing Twombly, 550

U.S. at 555).

III. ANALYSIS

Although Plaintiff’s Complaint lacks clarity, it appears that his claims are premised on

two events, namely, a 2018 allegedly false conduct report and the parole board’s 2020 decision

denying his parole. It is clear from the section of Plaintiff’s Complaint titled “LEGAL

CLAIMS/CAUSES OF ACTION,” quoted above, that he seeks to advance retaliation claims

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under the First Amendment. Less clear is whether Plaintiff intends to advance other claims.

(See Compl., ECF No. 1-2 (alleging generally that he was denied access to courts and that

Defendants colluded to retaliate and acted with a retaliatory agenda). The undersigned first

considers whether Plaintiff has plausibly alleged claims for civil conspiracy and denial of access

to courts before turning to his retaliation claims.

A. Civil Conspiracy

It is unclear whether Plaintiff intends to advance a civil conspiracy claim. “A civil

conspiracy is an agreement between two or more persons to injure another by unlawful action.”

Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003); quoting Hooks v. Hooks, 771 F.2d 935,

943–44 (6th Cir. 1985). A plaintiff is required to demonstrate “a single plan, that the alleged

coconspirator shared in the general conspiratorial objective, and that an overt act was committed

in furtherance of the conspiracy that caused injury to the complainant.” Hooks, 771 F.2d at 943–

44. In addition, “[c]laims of conspiracy must be pled with some specificity: vague and

conclusory allegations that are unsupported by material facts are not sufficient to state a § 1983

claim.” Farhat v. Jopke, 370 F.3d 580, 599 (6th Cir. 2004); see also Fieger v. Cox, 524 F.3d

770, 776 (6th Cir. 2008) (“[P]leading requirements governing civil conspiracies are relatively

strict.” (citation omitted)).

Plaintiff has failed to plausibly allege a civil conspiracy claim with the requisite level of

specificity. Rather, his allegations of collusion are vague and conclusory. For example, Plaintiff

summarily alleges that Defendants Frye, Westfall, and Doyle “began a collusion to retaliate

against Plaintiff,” (Compl. 4, ECF No. 1–2 at PAGEID # 41), and also that the RIB members,

individuals involved in Plaintiff’s conduct report appeal, the ODRC Parole Board, and the

individuals who considered his pleas for reconsideration, all of whom Plaintiff names as John

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and Jane Doe Defendants, were “part of the retaliatory agenda,” (Id. at PAGEID ## 41–42).

These allegations fall short of plausibly alleging a “single plan” and that these Defendants shared

in “the general conspiratorial objective” and committed “overt act[s] . . . in furtherance of the

conspiracy.” See Hooks, 771 F.2d at 943–44; see also Hartsfield v. Mayer, No. 95-1411, 1996

WL 43541, at *3 (6th Cir. Feb. 1, 1996) (affirming trial court’s dismissal of conspiracy claim,

explaining that the “vague allegations of a wide-ranging conspiracy are wholly conclusory and

are, therefore, insufficient to state a claim.” (citations omitted)).

Accordingly, to the extent that Plaintiff intends to assert a civil conspiracy claim, it is

RECOMMENDED that the Court DISMISS such a claim pursuant to 28 U.S.C. § 1915A.

B. Access to Courts

It is also unclear whether Plaintiff intends to advance an access-to-courts claim.

Prisoners have a First and Fourteenth Amendment right of access to the courts. See Lewis v.

Casey, 518 U.S. 343, 351–54 (1996). To state a claim that a state actor has violated that right, a

plaintiff must allege an “actual injury” and official conduct that is more than mere negligence.

See Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005); Gibbs v. Hopkins, 10 F.3d 373, 379

(6th Cir. 1993). “Actual injury” can be demonstrated by “the late filing of a court document or

the dismissal of an otherwise meritorious claim.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th

Cir. 1996). In addition, the underlying action cannot be frivolous. Lewis, 518 U.S. at 353;

accord Hadix v. Johnson, 182 F.3d 400, 405-06 (6th Cir. 1999) (“By explicitly requiring that

plaintiffs show actual prejudice to non-frivolous claims, Lewis did in fact change the ‘actual

injury’ requirement as it had previously been applied in this circuit.”). Thus, “the underlying

cause of action . . . is an element that must be described in the complaint, just as much as

allegations must describe the official acts frustrating the litigation.” Christopher v. Harbury, 536

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U.S. 403, 415 (2002) (citing Lewis, 518 U.S. at 353 & n.3). “Like any other element of an

access claim, the underlying cause of action and its lost remedy must be addressed by allegations

in the complaint sufficient to give fair notice to a defendant.” Id. at 416.

Applied here, Plaintiff has failed to plausibly allege an access-to-courts claim. Plaintiff’s

conclusory allegation that he was denied “access to the courts” that resulted in “loss of

opportunity for freedom from incarceration, and [his] inability to timely file documents

necessary to challenge his conviction and/or conditions of confinement,” (Compl. 2, ECF No. 1–

2 at PAGEID # 39), without more, falls short of demonstrating that Plaintiff suffered the

requisite actual injury. See, e.g., Whipple v. Tenn. Bd. of Paroles, No. 18-5390, 2019 WL

1804845, at *3–4 (6th Cir. Jan. 3, 2019) (affirming dismissal of inmate’s access-to-courts claim

under § 1915A where inmate alleged conduct “interfered with his ability to prosecute certain

lawsuits, but he did not, for instance, identify a deadline with which he was prevented from

complying or a meritorious claim that he was unable to raise” (internal quotation marks and

citation omitted)); Johnson v. Humphrey, No. 1:18-cv-43, 2018 WL 1151812, at *8 (S.D. Ohio

Mar. 5, 2018) (dismissing access-to-courts claim pursuant to § 1915A where inmate alleged only

that he missed a required deadline, explaining that such allegations were insufficient to permit

the Court to “infer that a nonfrivolous claim has been hampered”).

Accordingly, to the extent that Plaintiff intends to assert an access-to-courts claim, it is

RECOMMENDED that the Court DISMISS such a claim pursuant to 28 U.S.C. § 1915A.

C. Retaliation Claims Arising from the 2018 Conduct Report

As set forth above, Plaintiff alleges that Defendants Frye, Westfall, and Doyle filed a

“bogus conduct report” 45 days after the dismissal of the March 2018 conduct report because

they were disgruntled that the March 2018 conduct report was dismissed. Plaintiff also names

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the RIB members who found him guilty of the new charges and the individuals who denied his

appeal of this finding as Doe Defendants, asserting that these Defendants “knew, or should have

known, they were furthering an agenda of retaliation.” (Pl.’s Compl. 4, ECF No. 1–2 at

PAGEID # 41.)

Plaintiff’s claims against these Defendants, as well as any other claim he might be

seeking to assert arising from the March 2018 conduct report, are barred by the applicable statute

of limitations. “In § 1983 suits, the applicable statute of limitations is determined by state law,

while the ‘date on which the statute of limitations begins to run . . . is a question of federal law.’”

King v. Harwood, 852 F.3d 568, 578 (6th Cir. 2017) (quoting Eidson v. State of Tenn. Dep’t of

Children’s Servs., 510 F.3d 631, 635 (6th Cir. 2007) (alteration in original)). Ohio Revised Code

§ 2305.10 sets forth a two-year statute of limitations for § 1983 claims. Browning v. Pendleton,

869 F.2d 989, 992 (6th Cir. 1989). That statute of limitations “begins to run when the plaintiff

knows or has reason to know of the injury that is the basis of the action.” Scott v. Ambani, 577

F.3d 642, 646 (6th Cir. 2009). Further, although the statute of limitations is an affirmative

defense, in the context of a statutorily-required initial screen, “[w]hen a meritorious affirmative

defense based upon the applicable statute of limitations is obvious from the face of the

complaint, sua sponte dismissal of the complaint as frivolous is appropriate.” Castillo v.

Grogan, 52 F. App’x 750, 751 (6th Cir. 2002) (citing Pino v. Ryan, 49 F.3d 51, 53–54 (2d Cir.

1995)); see also Watson v. Wayne Cty., 90 F. App’x 814, 815 (6th Cir. 2004) (affirming trial

court’s dismissal of claims under § 1915A in connection with initial screen as time barred,

explaining “[i]f a statute of limitations defense clearly appears on the face of a pleading, the

district court can raise the issue sua sponte”) (citation omitted); Dellis v. Corr. Corp. of Am., 257

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F.3d 508, 511 (6th Cir. 2001) (same); Fraley v. Ohio Gallia Cty., No. 97-3564, 1998 WL

789385, at *1–2 (6th Cir. Oct. 30, 1998) (same).

Plaintiff filed the instant action on December 9, 2020. (ECF No. 1.) Thus, claims

accruing prior to December 9, 2018, are time barred. According to the Complaint, Defendants

Doyle, Westfall, and Frye issued the “bogus conduct report” “approximately forty-five days”

after the March 2018 conduct report. (Pl.’s Compl. 4, ECF No. 1–2 at PAGEID # 41.) At the

latest, then, the at-issue “bogus conduct report” was filed in May 2018. Hearings before the RIB

must be held within seven days of the conduct report, with a decision posted within a week of the

hearing. INMATE DISCIPLINARY PROCESS, 5, State of Ohio Dep’t of Rehab. and Corr. (2009).

Appeals from RIB decisions are due within fifteen days and decided within thirty days. (Id. at

7.) Thus, at the latest, Plaintiff would have known of the alleged retaliatory acts of Defendants

Frye, Westfall, and Doyle and any RIB Doe Defendants by July or August 2018 such that the

two-year limitations period expired in July or August 2020, well before he filed this action in

December 2020.

Accordingly, it is RECOMMENDED that the Court DISMISS Plaintiff’s claims arising

from the 2018 conduct report, which include his claims against Defendants Frye, Westfall, and

Doyle, as well as any RIB Doe Defendants, pursuant to 28 U.S.C. § 1915A.

D. Retaliation Claims Arising from the 2020 Denial of Parole

Plaintiff asserts retaliation claims against the ODRC Parole Board members who denied

him parole almost two years after the alleged “bogus conduct report,” as well as Doe Defendants

who considered and denied his requests for reconsideration, alleging that he was denied parole as

“part of the retaliatory agenda.” (Pl.’s Compl. 4, ECF No. 1–2 at PAGEID ## 41–42.)

According to Plaintiff, “[b]ut for retaliation, [he] would not have been denied parole.” (Id. at

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PAGEID # 38.) These retaliation claims are subject to dismissal pursuant to 28 U.S.C. § 1915A

as barred under the Heck doctrine and alternatively for failure to state a claim.

In Heck v. Humphrey, the United States Supreme Court held that, in assessing a claim

under 42 U.S.C. § 1983, a court “must consider whether a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction or sentence.” 512 U.S. 477, 487 (1994).

If so, “the complaint must be dismissed unless the plaintiff can demonstrate that the conviction

or sentence has already been invalidated.” Id. Later, in Wilkinson v. Dotson, the Court

considered whether Heck applied to § 1983 actions that challenged parole procedures. 544 U.S.

74, 81–82 (2005). The Court explained that if victory in the § 1983 action would necessarily

imply the invalidity of the parole board’s decision, then Heck would block that action. Id.; see

also Sampson v. Garrett, 917 F.3d 880, 882 (6th Cir. 2019) (citing Wilkinson, 544 U.S. at 82)

(explaining that Wilkinson would allow a § 1983 challenge to parole where victory would “not

imply the invalidity” of the underlying decision); Whipple, 2019 WL 1804845, at *2–3

(affirming dismissal of prisoner’s challenge to a denial of parole, in part, because “most of his

claims necessarily implied the invalidity of the decision to deny him parole”); Holson v. Good,

579 F. App’x 363, 365–66 (6th Cir. 2014) (citing cases) (noting that, in Ohio, parole is “a part of

the original judicially imposed sentence,” and so claims challenging parole conditions

“necessarily imply the invalidity of the plaintiffs’ sentences and are likewise barred by Heck”);

McKithen v. Brown, 481 F.3d 89, 102 (2d Cir. 2007) (concluding “that the governing standard

for application of the Preiser-Heck exception, then, is whether a prisoner’s victory in a § 1983

suit would necessarily demonstrate the invalidity of his conviction or sentence”); Jackson v.

Lemmon, 738 F. App’x 369, 372 (7th Cir. 2018) (finding that where a plaintiff implied that, with

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more process, he would not have received a certain parole condition, victory would “necessarily

demonstrate[] the invalidity” of the parole board’s decision).

Here, Plaintiff asserts that he was denied parole because ODRC Parole Board members

retaliated against him. Thus, a victory in this case would require a finding that the parole board

acted retaliatorily, thereby casting doubt on the validity of the parole board’s decision. Heck

prohibits this type of claim. See Brown v. Williams, 644 F. App’x 117, 118–20 (3d Cir. 2016)

(holding that where a plaintiff challenged the denial of parole based on a First Amendment

retaliation claim, such a challenge was barred by Heck). That Plaintiff does not seek immediate

release does not save his claim because “the type of relief requested is immaterial” if that relief

would necessarily imply the invalidity of the underlying decision, as it would here. See Violett v.

Cohron, No. 16-5484, 2017 WL 8236191, at *1 (6th Cir. Jan. 4, 2017) (citing Wilkinson, 544

U.S. at 81–82). Accordingly, Plaintiff’s claims challenging the Ohio parole board’s decision

must be dismissed as barred by Heck.

Alternatively, even if Plaintiff’s claims arising from the denial of his parole were not

barred by Heck, they would fail because he has not plausibly alleged a prima facie case for

retaliation. A retaliation claim entails three elements:

(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken

against the plaintiff that would deter a person of ordinary firmness from continuing

to engage in that conduct; and (3) there is a causal connection between elements

one and two—that is, the adverse action was motivated at least in part by the

plaintiff’s protected conduct.

Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (citations omitted).

Here, Plaintiff alleges facts relating to the issuance of a conduct report in 2018 before

making the conclusory allegation that Defendants denied him parole nearly two years later “for

exercising his First Amendment rights.” (Pl.’s Compl. 4–5, ECF No. 1–2 at PAGEID ## 41–42.)

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Assuming arguendo that Plaintiff sufficiently alleged the first two elements of a retaliation

claim, his “allegations of causation [are] conclusory and therefore insufficient for purposes of the

third element.” See Sturgis v. Mich. Parole Bd., No. 18-1554, 2019 WL 2156429, at *2 (6th Cir.

Feb. 1, 2019). Such barebones, conclusory allegations are insufficient to state a claim of

retaliation. See Ward v. Chapman, No. 2:19-CV-12543, 2020 WL 5107334, at *8 (E.D. Mich.

Aug. 31, 2020) (“[S]peculative and uncorroborated assertions do not demonstrate a causal

connection between Petitioner’s litigation and the parole board’s decisions sufficient to

demonstrate a retaliatory motive.”).

For these reasons, it is RECOMMENDED that Plaintiff’s claims of retaliation premised

upon his denial of parole be DISMISSED pursuant to 28 U.S.C. § 1915A.

E. Respondeat Superior

Finally, Plaintiff has failed to plausibly allege claims against Defendants ODRC Director

Chambers-Smith and LCI Warden Robinson.

In order to plead a cause of action under § 1983, a plaintiff must plead two elements:

“(1) 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.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542

F.3d 529, 534 (6th Cir. 2008) (citing McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 463 (6th

Cir. 2006)). To sufficiently plead the second element, a plaintiff must allege “personal

involvement.” Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (citation omitted). This is

because “§ 1983 liability cannot be imposed under a theory of respondeat superior.” Id.

(citation omitted). Thus, to hold a supervisor liable under § 1983, a plaintiff “must show that the

official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional

conduct . . . .” Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009) (internal quotation omitted).

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Plaintiff’s Complaint fails to provide sufficient factual content or context from which the

Court could reasonably infer that Defendants ODRC Director Chambers-Smith and LCI Warden

Robinson were personally involved in any violation of Plaintiff’s rights. Rather, Plaintiff’s

Complaint makes no allegations against Defendant Chambers-Smith and reflects that Defendant

Robinson’s involvement was limited to ensuring the dismissal of the March 2018 conduct report.

Because the undersigned is unable to discern what actions Defendants Robinson or

Chambers-Smith took that could suffice to form the basis of a plausible claim under § 1983, it is

RECOMMENDED that Plaintiff’s claims against these Defendants be DISMISSED pursuant to

28 U.S.C. § 1915A.

IV. DISPOSITION

For the reasons set forth above, it is RECOMMENDED that the Court DISMISS this

action pursuant to § 1915A for failure to state a claim on which relief may be granted and that

Defendants’ Motion to Dismiss for Failure to State a Claim (ECF No. 12) be TERMINATED

AS MOOT.

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) 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

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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).

IT IS SO ORDERED.

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE

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