Cruz v. Forshey

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

JOHN MICHAEL CRUZ : Case No. 2:23-cv-194

:

Plaintiff, :

: Judge Sarah D. Morrison

vs. :

Magistrate Judge Kimberly A. Jolson

:

JAY FORSHEY, ET. AL., :

:

Defendants. :

:

ORDER AND REPORT AND RECOMMENDATIONS ON INITIAL REVIEW

John Michael Cruz, proceeding in forma pauperis and without counsel, filed an action

alleging violations of his civil rights. See ECF No. 1; ECF No. 4. The matter is currently before

the undersigned Magistrate Judge to conduct the initial screen required by law. 28 U.S.C. §

1915A(a).

For the reasons that follow, the Undersigned RECOMMENDS all claims against the

named defendants in their official capacities be DISMISSED with prejudice. The Court

ORDERS that Plaintiff shall have 30 days from the date of this order to amend his complaint

against defendants in their individual capacities.

I. Legal Standard

Because Plaintiff is a prisoner proceeding in forma pauperis, seeking “redress from a

governmental entity or officer or employee of a governmental entity,” and is also incarcerated, the

Court is required to conduct an initial screen of his Complaint. 28 U.S.C. §§ 1915(e)(2), 1915A(a),

(b). The Court must dismiss the Complaint, or any portion of it, that is frivolous, malicious, fails

to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who

is immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A(b).

A complaint is frivolous if the plaintiff cannot make any claim with a rational or arguable

basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328–29 (1989); see also Lawler v. Marshall,

898 F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable legal basis when the defendant is

immune from suit or when plaintiff claims a violation of a legal interest which clearly does not

exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations are

delusional or rise to the level of the irrational or ‘wholly incredible.’” Denton v. Hernandez, 504

U.S. 25, 33 (1992); Lawler, 898 F.2d at 1199. The Court need not accept as true factual allegations

that are “fantastic or delusional,” Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010), or “clearly

irrational or wholly incredible.” Ruiz v. Hofbauer, 325 F. App’x 427, 429–30 (6th Cir. 2009)

(citing Denton, 504 U.S. at 33).

To state a claim for relief, a complaint must set forth “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Court must

construe the complaint in plaintiff’s favor, accept all well-pleaded factual allegations as true, and

evaluate whether it contains “enough facts to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 556). A complaint that consists of mere “labels and conclusions” or “a

formulaic recitation of the elements of a cause of action” is insufficient. Id. (quoting Twombly,

550 U.S. at 555).

In the interest of justice, this Court is required to construe a pro se complaint liberally and

to hold it “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) and citing

Fed. R. Civ. P. 8(f)). Even with such a liberal construction, however, a pro se complaint must still

adhere to the “basic pleading essentials.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

Specifically, a pro se “complaint ‘must contain either direct or inferential allegations respecting

all the material elements’ to recover under some viable legal theory.” Barhite v. Caruso, 377 F.

App’x 508, 510 (6th Cir. 2010) (quoting Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)).

II. Background

Plaintiff seeks relief under 42 U.S.C. § 1983, naming Jay Forshey, Warden at Noble

Correctional Institution (“NCI”) and an unnamed “Head of the Medical Unit at NCI” as

defendants. ECF No. 1 at PageID 4. Plaintiff’s Complaint addresses a single issue: the alleged

denial of access to a continuous positive air pressure (“CPAP”) machine while housed at NCI for

a period of six months. Id. at PageID 5. Specifically, Plaintiff alleges that prior to his incarceration

he participated in a study where “[i]t was discovered that [he] stopped breathing 55 times in an

hour and was put on a CPAP machine.” Id. When Plaintiff was initially incarcerated, he was

housed at “county,” where he was given a CPAP machine, but upon transfer to “CRC” he was

refused access to a CPAP and was told he had to wait until he was transferred to NCI to receive

one. Id. After a month without CPAP access at CRC, Plaintiff was transferred to NCI but was

denied access again, until he “finally received the CPAP” after “six months of suffering,” which

when received, was not properly set and required adjusting, resulting in additional time without it.

Id.

As an exhibit to his Complaint, Plaintiff attaches a copy of various complaints made to

prison officials at NCI regarding the CPAP machine beginning on April 29, 2022, through

December 5, 2022 (the “Exhibit”), which are summarized as follows:

• April 29, 2022 – Subject line: Warden. Form Type: Kite. Urgent Status: No.

Plaintiff’s Narrative: Plaintiff seeks to “speed up the process” of getting a CPAP

machine, indicating he has “severe sleep apnea,” that he wakes up “countless times

throughout the night choking in [his] sleep, and that he is aware “they are waiting

for a respond [sic] back from aultman north in canton for [his] sleep study report”

but that a CPAP machine is important to his health and he is unsure how long he

can “keep going on with this.”

Response from Jessica Perrin, dated May 9, 2022: “You have already kited and

received a response from medical. They have requested your medical information

so they can assist you with this.”

• August 3, 2022 – Subject line: Health Care. Form Type: Informal Complaint.

Urgent Status: No.

Plaintiff’s Narrative: Plaintiff indicates that he has been incarcerated since “march”

and has been waiting for a CPAP machine since then, that he had a sleep study

performed where he stops breathing 55 times per hour, and that he needs a CPAP

machine as being without it is “effecting [his] health everynight,” that he had an

order for a CPAP machine since June 16, 2022 but has yet to receive one. He also

explained that he had a follow up appointment with a doctor on July 26, 2022, and

the doctor called to check the status of the CPAP machine and told him there was

no back order issues with obtaining one.

Response from Jonathan Pittman, dated August 4, 2022: Indicating Plaintiff’s

outside medical records were received June 21, 2022, and a CPAP was ordered that

day. Pittman indicated he placed a new order August 4, 2022, in response to

Plaintiff’s message, “to evaluate if machines still backordered,” and noting Plaintiff

will be “passed to medical immediately upon arrival of machine to NCI” and to

“continue to follow up for any medical concerns by completing health services

request form.”

• December 1, 2022 – Subject line: Health Care. Form Type: Grievance. Urgent

Status: No.

Plaintiff’s Narrative: “[T]hey say there is a back order on [CPAP] machines . . .

[but] I cant even get a wedge to try and help with my sleep apnea. . . I wake up

choking and I don’t get good sleep. [I]snt there anything you could do to help a

little until I get a machine line a wedge? [I]ts been 6 months [I] have been waiting.”

Response from Kaila Johnson, dated December 7, 2022: ORDC does not allow

wedge distribution but “[t]he pharmacy was contacted and CPAP machine and

mask should be delivered to NCI today.”

Plaintiff’s Response, dated December 12, 2022: “[I] received my machine but they

havnt [sic] even set it to the right setting per my sleep study.”

Response from Evelyn Obeng, dated December 19, 2022: Indicating the Office of

the Inspector of the Institutional Services is in receipt of his grievance, that Obeng

began an investigation by interviewing medical personnel at NCI, performed a

review of his medical file, and on December 15, 2022, contacted “HCA Pittman”

regarding the CPAP settings and escorted Plaintiff to medical for Pittman to make

the proper setting adjustments. Obeng notes “[t]here is sufficient evidence to

support your claim that medical didn’t set your CPAP machine to your sleep study.

Your grievance is granted. Medical was addressed.”

• December 5, 2022 – Subject line: Warden. Form Type: Grievance Against the

Warden. Urgent Status: No.

Plaintiff’s Narrative: Indicating he has been attempting to address the issue of his

sleep apnea but has received “no results” for 6 months, that he is suffering and that

every night he struggles, and that while he is waiting for a CPAP machine, he would

like to get a “wedge” or some other type of assistance until the machine is received.

Plaintiff asserted that he feels like his “health care rights are being violated and the

warden has no concern for it.”

Response from Chris Lambert, dated December 5, 2022: “Upon review of your

complaint . . . I find you have incorrectly filed your complaint as a Direct

Grievance” as the grievance does not show the warden or inspector violated policy,

rule, or statute. Lambert instructed Plaintiff that his complaint should be filed as

an “informal complaint (ICR) with the area supervisor – in this case the NCI

Medical Department/Healthcare Administrator” and that as a result his grievance

was denied. Lambert went on to instruct Plaintiff how to “escalate” his grievance

if he was not satisfied with Lambert’s response.

ECF No. 1-1.

In addition, the Exhibit contains the following handwritten notes with the heading “Other

Kites” indicating on April 29 he sent a kite to “medical” requesting medical documents, on May

26 he sent a kite to “medical” followed by “said the resent Request to Aultman,” on June 6, he sent

a kite to “medical” indicating Plaintiff contacted Aultman for their fax number, gave the Aultman

fax number to “medical” and that medical resent a request for Plaintiff’s medical records to

Aultman, on July 25 he sent a kite to “medical” with the note “addressed my need,” and he sent a

kite to “medical” on November 11, with the note “addressed my concerns.” Id. at PageID 9.

As Plaintiff does not cite to any specific constitutional or federal law under which his claim

is brought, the Court liberally construes Plaintiff’s claims against Forshey and the Head of the

Medical Unit as a claim for deliberate indifference to medical needs under the Eighth

Amendment.1 Plaintiff seeks $100,000 for mental, physical, and emotional distress damages. Id.

at 5–6.

III. Recommendations Based on Initial Review of Plaintiff’s Complaint

Although Plaintiff does not state whether he seeks to sue Forshey and the Head of the

Medical Unit in their individual capacities, official capacities, or both, see ECF No. 1-1 at PAGEID

4 (naming Forshey and the Head of the Medical Unit at NCI as defendants), for purposes of this

initial review, the Court will consider Plaintiff’s claims against all defendants under both an

official and individual capacity.

“While ‘[p]ersonal-capacity suits seek to impose personal liability upon a government

official for actions he takes under color of state law,’ individuals sued in their official capacities

stand in the shoes of the entity they represent.” Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003)

(quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)). It follows that, “[a] suit against an

individual in his official capacity is the equivalent of a suit against the governmental entity” and

is therefore no different from a suit against the state itself. Matthews v. Jones, 35 F.3d 1046, 1049

1 While unclear from the allegations in the Complaint, to the extent Plaintiff intends to bring a claim that defendants

failed to comply with an administrative rule or prison policy or follow grievance procedures when failing to timely

provide him with a CPAP machine, such a claim does not itself give rise to a § 1983 claim. See Laney v. Farley, 501

F.3d 577, 581 n. 2 (6th Cir. 2007) (“[A] § 1983 claim may not be based upon a violation of state procedure that does

not violate federal law.”); Smith v. Freland, 954 F.2d 343, 347–48 (6th Cir.1992); Barber v. City of Salem, 953 F.2d

232, 240 (6th Cir.1992); McVeigh v. Bartlett, No. 94–23347, 1995 WL 236687, at *1 (6th Cir. Apr. 21, 1995) (policy

directive does not create a protectable liberty interest); see also Young v. Hodge, No. 3:12-0009, 2012 WL 5494892,

at *7 (M.D. Tenn. Nov. 13, 2012) (finding there are “no constitutional right to an effective, fair, or properly functioning

prison grievance procedure, and a prison inmate does not have a constitutionally protected interest in prison grievance

procedures), report and recommendation adopted, No. 3:12-CV-0009, 2013 WL 440964 (M.D. Tenn. Feb. 5, 2013)

(collecting cases). Thus, even if Plaintiff had named any policies or grievance procedures under which he sought

relief, he cannot state a claim under § 1983 by only alleging defendants violated NCI policies or failed to provide an

adequate grievance procedure without more.

(6th Cir. 1994) (citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 68 (1989)). As both

defendants are employed at NCI they are employed by the state of Ohio.2 Therefore, any claims

against defendants in their official capacity would be construed as claims against the State of Ohio.

Where “state officials are being sued for money damages in their official capacity, the

Eleventh Amendment is squarely in play as a bar to suit in federal court, at least to the extent that

[p]laintiffs are bringing claims under 42 U.S.C. § 1983.” Lee Testing & Eng'g, Inc. v. Ohio Dep't

of Transp., 855 F. Supp. 2d 722, 725 (S.D. Ohio 2012).

It is well settled that 42 U.S.C. § 1983 does not abrogate Eleventh Amendment

immunity. See generally Quern v. Jordan, 440 U.S. 332 (1979). And the State of

Ohio has not waived its immunity from suits for money damages, except to the

extent that such claims are allowed to be brought in the Court of Claims of Ohio.

See R.C. 2743.03. Ohio has not waived its Eleventh Amendment immunity from

suits for money damages in federal court. See Turker v. Ohio Dept. of Rehab. and

Corrections, 157 F.3d 453, 457 (6th Cir.1998).

Id. at 725–26.

Accordingly, as Plaintiff seeks only monetary damages, to the extent Plaintiff intended to

sue either defendant in their official capacity, the Undersigned RECOMMENDS all claims

against all defendants in their official capacities be DISMISSED with prejudice for want of

federal jurisdiction.

Regarding potential individual capacity claims, the Undersigned finds that Plaintiff’s

Complaint is deficient and requires amendment to proceed and shall allow Plaintiff 30 days in

which to do so for the reasons set forth in the following section.

IV. Order Based on Initial Review

To state a claim under 42 U.S.C. § 1983, a plaintiff must: (1) allege a violation of a federal

2 NCI is part of the Ohio Department of Rehabilitation and Correction’s network of facilities. See Ohio Department

of Rehabilitation and Correction, Facilities, available at: https://drc.ohio.gov/about/facilities/noble-

correctional/noble-correctional (last accessed Apr. 27, 2023).

constitutional right or federal law; and (2) must show that the deprivation was committed by a

person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr.

Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). In addition to alleging a violation of federal

constitutional or statutory law by a person acting under color of law, a plaintiff must allege that he

suffered a specific injury as a result of the conduct of a particular defendant and he must allege an

affirmative link between the alleged injury and the conduct of that defendant. Rizzo v. Goode, 423

U.S. 362, 371–72, 377 (1976). Here, Plaintiff’s Complaint, which the Court construes as alleging

a claim of deliberate indifference to medical needs in violation of the Eighth Amendment, suffers

from several defects under § 1983, requiring amendment to proceed.

Under the Eighth Amendment’s prohibition against cruel and unusual punishment, prison

officials are forbidden from “‘unnecessarily and wantonly inflicting pain’ on an inmate by acting

with ‘deliberate indifference’ toward [ ] serious medical needs.” Blackmore v. Kalamazoo County,

390 F.3d 890, 895 (6th Cir. 2004) (quoting Estelle, 429 U.S. at 104). Deliberate indifference “is

a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious

consequence of his action.” Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397,

410 (1997). A claim of deliberate indifference to medical needs is described as carrying both an

objective and subjective component, both of which must be established by a plaintiff: (1) a

sufficiently grave deprivation of a basic human need (the objective component); and (2) a

sufficiently culpable state of mind on behalf of the person acting under color of state law (the

subjective component). Wilson v. Seiter, 501 U.S. 294, 298 (1991).

In relation to the objective component, because society does not expect that prisoners will

have unqualified access to health care, deliberate indifference to medical needs amounts to an

Eighth Amendment violation only if those needs are “serious.” See Estelle, 429 U.S., at 103–04.

A sufficiently serious medical need is one “that has been diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay person would easily recognize the necessity for

a doctor's attention.” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008) (citations omitted).

Serious medical needs have been found when a failure to treat an injury or condition could result

in “further significant injury or the unnecessary and wanton infliction of pain.” Ford v. LeMire,

No. 03-CV-10176-BC, 2004 WL 1234137, at *4 (E.D. Mich. June 1, 2004) (internal quotations

omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992), overruled on other

grounds by WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997)).

Here, Plaintiff alleges he requested a CPAP machine deemed necessary by a medical

provider (as it had been observed that Plaintiff stopped breathing up to “55 times per night”). ECF

No. 1 at Page ID 5; ECF No. 1-1 at PageID 14. As courts in this jurisdiction have held “a request

for a CPAP due to sleep apnea is an objectively serious medical need,” see Boone v. Heyns, No.

12-14098, 2020 WL 2832251, at *9 (E.D. Mich. May 31, 2020), for purposes of initial review,

Plaintiff’s allegations meet the objective component.

The subjective element requires a showing that prison officials have “a sufficiently

culpable state of mind in denying medical care.” Id. (internal citation and quotation omitted).

Although “it is not necessary that the prison officials consciously sought to inflict pain by

withholding treatment,” Molton v. City of Cleveland, 839 F.2d 240, 243 (6th Cir. 1988), “[m]ere

negligence is not sufficient,” Hicks v. Frey, 992 F.2d 1450, 1455 (6th Cir. 1993). Rather, the

plaintiff must “show that the official being sued subjectively perceived facts from which to infer

substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded

that risk.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001). In other words, “[t]he

official’s conduct ‘must demonstrate deliberateness tantamount to an intent to punish.’” Hicks, 992

F.2d at 1455 (quoting Molton, 839 F.2d at 243).

It is under this subjective component where Plaintiff’s allegations are deficient. In the

Exhibit, Plaintiff establishes he made various NCI staff members aware of his need for a CPAP

machine, that the CPAP was necessary due to a prior diagnosis, that without the CPAP he

awakened multiple times per night “choking” and struggling to sleep and alleges that his requests

were either ignored or not adequately addressed for roughly six months.3 ECF No. 1 at Page ID

5; ECF No. 1-1 at PageID 14. However, he names none of the NCI staff members he corresponded

with about the CPAP machine as defendants, instead naming Warden Forshey and the unnamed

head of the NCI Medical Unit as the only defendants, but then fails to allege a single instance of

specific wrongful conduct performed by either of them.4 See ECF Nos. 1, 1-1. As such, there is

no information to allow the Court to determine that (or how) either Forshey or the Medical Unit

Head allegedly violated Plaintiff’s rights.

Identifying who harmed the plaintiff and how they did so is a “basic pleading essential”

required to state a claim. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v.

Wal-Mart Stores, Inc., 507 F. App’x 543, 547 (6th Cir. 2012) (courts “are not required to conjure

up allegations not pleaded or guess at the nature of an argument.”). “The Sixth Circuit ‘has

consistently held that damage claims against government officials arising from alleged violations

of constitutional rights must allege...facts that demonstrate what each defendant did that violated

3 Plaintiff’s Complaint contains no further allegations regarding the CPAP machine once received six months after

his initial request, aside from the settings needing adjustment upon initial receipt. See ECF Nos. 1, 1-1.

4 In the Exhibit to the Complaint, Plaintiff describes conversations discussing his need for a CPAP machine, his

medical difficulties due to not having access to one, and his prior sleep study results and diagnosis with several NCI

employees that are but not named as defendants. ECF No. 1-1. Because these individuals are not named as

defendants in the Complaint and are not parties to this case, the Court declines to analyze Plaintiffs statements with

respect to these individuals unless and until Plaintiff amends his Complaint to formally include them.

the asserted constitutional right.’” Reid v. City of Detroit, No. 18-13681, 2020 WL 5902597, at *6

(E.D. Mich. Oct. 5, 2020) (quoting Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008))

(emphasis in original). “Merely listing names in the caption of the complaint and alleging

constitutional violations in the body of the complaint is not enough to sustain recovery under §

1983.” Gilmore v. Corr. Corp. of Am., 92 F. App’x 188, 190 (6th Cir. 2004) (citing Flagg Bros.

v. Brooks, 436 U.S. 149, 155–57 (1978)). Thus, “[w]here a person is named as a defendant without

an allegation of specific conduct, the complaint is subject to dismissal, even under the liberal

construction afforded to pro se complaints,” Catanzaro v. Harry, 848 F. Supp. 2d 780, 791 (W.D.

Mich. 2012), as “courts should not have to guess at the nature of the claim asserted.” Frengler v.

Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2021) (internal citation and quotations omitted).

As at this stage of review Plaintiff’s Complaint meets the objective pleading standard for

a deliberate indifference to medical needs claim but fails to connect the named defendants with the

claims made. Dismissal is appropriate where a plaintiff wholly fails to link defendants to the

violations alleged as a court cannot attempt to “match particular defendants with particular

allegations where the plaintiff has failed to do so[.]” Culberson v. Franklin Cnty. Corr., No. 2:22-

CV-3671, 2022 WL 17600955, at *3 (S.D. Ohio Dec. 13, 2022). Courts may instead, however,

grant sua sponte leave to amend. See Carpenter v. Kaiser Foundation Health Plan of Ohio, Inc.,

No. 04CV1689, 2005 WL 1123611, at *5, 7 (N.D. Ohio May 11, 2005). The Court concludes the

better course is to allow Plaintiff to amend his Complaint to clarify his allegations to meet the

subjective component. Specifically, to the extent Plaintiff alleges claims against Forshey and the

unnamed head of the NCI Medical Unit, he must amend his complaint to include sufficient facts

establishing the individual involvement of both Forshey and the unnamed head of the NCI Medical

Unit to Plaintiff’s claims, as well as any other additional defendants Plaintiff may add upon

amendment. See Comstock, 273 F.3d at 703.

For these reasons, this Court ORDERS Plaintiff to amend all claims against all defendants

in their individual capacities.

V. Conclusion

Based on the foregoing, IT IS THEREFORE ORDERED THAT: Plaintiff is granted

leave to amend the Complaint within 30 days of this Order. To the extent Plaintiff fails to file an

amended complaint within the allotted time or seek an extension of time in which to comply, the

Court will recommend dismissal of the Complaint for failure to state a claim.

Further, the Undersigned RECOMMENDS that all remaining claims against all

defendants in their official capacities be DISMISSED with prejudice.

The Undersigned further RECOMMENDS that the District Court certify pursuant to 28

U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of an Order adopting this Report and

Recommendations would not be taken in good faith, and consequently, leave for Plaintiff to appeal

in forma pauperis should be denied

Procedure on Objections to Report and Recommendation

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 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 RECOMMENDED.

Date: May 17, 2023 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE