Robertson v. McKesson Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RACHEL ROBERTSON,

Plaintiff,

Case No. 2:23-cv-2334

vs. Judge Sarah D. Morrison

Magistrate Judge Elizabeth P. Deavers

MCKESSON CORPORATION,

et al.,

Defendants.

INITIAL SCREEN REPORT AND RECOMMENDATION AND ORDER

Plaintiff, Rachel Robertson, has filed an action alleging violations of her civil

rights under Title VII, the First Amendment, and the Ohio Constitution. Plaintiff is proceeding

in this action without counsel and has been granted leave to proceed in forma pauperis. (ECF

No. 2.) The matter is currently before the undersigned Magistrate Judge to conduct the initial

screen required by law 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. 28 U.S.C. § 1915A(a); 28 U.S.C. § 1915(e)(2). Having completed the initial screen, the

Undersigned RECOMMENDS that the Court DISMISS Plaintiff’s claims in their entirety for

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

I.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that--

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). 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)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

1Formerly 28 U.S.C. § 1915(d).

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)). 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), “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. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court

holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”

Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April

1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however,

has limits; “‘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. 2012) (quoting Wells v. Brown, 891 F.2d 591,

594 (6th Cir. 1989)).

II.

Plaintiff’s “Complaint for Employment Discrimination” names as Defendants McKesson

Corporation (“McKesson”) and McKesson employees Jennifer Church, Jeff Starner, and Anna

Greene. Plaintiff also names as a Defendant Carol Scott, identified as an Investigator with the

Ohio Civil Rights Commission. Plaintiff alleges the following. Plaintiff was employed by

McKesson in September 2021 when McKesson issued its first policy on COVID-19

vaccinations. The policy allegedly prohibited the hiring, transfer or promotion of unvaccinated

workers. Plaintiff requested a religious accommodation by the established deadline of October

11, 2021. When Plaintiff had not received a response to her accommodation request by

November 14, 2021, she emailed Jennifer Church from McKesson’s human resources

department requesting a response. Although Ms. Church confirmed an answer would be

forthcoming on November 15, 2021, Plaintiff did not receive an answer. According to the

Complaint, the policy “prevent[ed] Plaintiff from receiving any promotion in her department or

to be transferred as requested to Brian Ginnane to the McKesson Warehouse located in

Washington Courthouse.” (ECF No. 1-1 at 7.)

On March 8, 2022, McKesson announced a mask policy that required unvaccinated

employees to wear masks. Vaccinated employees were exempt from the mask requirement.

Plaintiff refused to wear a mask “stating that segregating between the vaccinated and

unvaccinated employees was equivalent to the marking of the Jews with the star of David during

the Holocaust.” (ECF No. 1-1 at 8.) On March 9, 2022,2 Plaintiff refused a request by her

supervisor that Plaintiff wear a mask, claiming that “she ‘cannot disobey God’” and explaining

that it was against her faith to wear a mask. (Id.) The following day, Jeff Starner, the

department manager, advised Plaintiff that she would have to wear the mask or be sent home.

Plaintiff chose to be sent home. While at home, Plaintiff “prayed to her God (JAH) and He

directed here to return to work, put the mask back on and request an accommodation for the

mask from Human resources Department.” (Id.) Plaintiff sent her accommodation request

relating to the mask policy on March 23, 2022.

2 The form Complaint notes the date as March 9, 2021, but given the context, the Court considered the

date to be a typo.

Over the following three months, Plaintiff watched unvaccinated employees remove their

masks while she was “forced” to wear hers. (ECF No. 1-1 at 8.) On April 4, 2022, Plaintiff

emailed Anna Green in McKesson’s human resources department to ask when Plaintiff would

receive a response to the accommodation request. Plaintiff received a return email stating that no

timeline could be given.

Plaintiff filed a complaint with the Ohio Civil Rights Commission and was advised by

Carol Scott, an investigator, that her complaint would be processed in line with others. Plaintiff

attached to her Complaint, the Charge of Discrimination she filed with the Ohio Civil Rights

Commission on June 9, 2022. (ECF No. 1-1 at 18.) In that Charge, she identifies her religion as

Baptist Christian, and further states:

I began my employment with the Respondent on or about November 16, 2020. My

current position is Material Handler. On or about March 8, 2022, I was notified by

my employer that vaccinated employees are permitted to remove their face masks

while unvaccinated employees had to continue wearing their masks. I sincerely

hold a religious belief that conflicts with my employer’s mask requirement. During

my employment, I notified my employer of my religious belief and my need for an

accommodation from the mask requirement. I requested a religious exemption to

Respondent’s COVID-19 mask mandate. I have not received a response from the

Respondent to my accommodation request.

I believe my employer failed to accommodate me and discriminated against me

because of my religion, Baptist Christian, in violation of Title VII of the Civil

Rights Act of 1964, as amended.

(Id.)

After “weeks went by with no response,” Plaintiff contacted, and ultimately filed a

charge of discrimination with, the U.S. Equal Employment Opportunity Commission (“EEOC”).

On June 9, 2022, McKesson lifted the mask policy.

Plaintiff did not receive a response to either of her vaccination or mask policy

accommodation requests. Although McKesson lifted its mask policy, its vaccination policy

remained in effect. The vaccination policy prevented Plaintiff “from being promoted to Lead

position in her department (HAZMAT) and it prevented her from being transferred to the

McKesson Warehouse in in Washington Courthouse.” (ECF No. 1-1 at 9.)

Plaintiff’s Complaint reflects her intention to assert a claim under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. 2000e. Plaintiff checked the boxes on the Form Complaint

indicating the discriminatory conduct of which she complains includes the failure to promote her,

the failure to accommodate her disability, and “[d]isparate treatment/forced to wear face mask

while other unvaccinated removed theirs.” Further, Plaintiff checked the box indicating that she

believes that she was discriminated against based on her religion. Plaintiff also indicated on the

form Complaint her intention to bring other federal and state law claims, including a claim for a

violation of her First Amendment rights under the Establishment Clause and a violation of her

rights under the Ohio Constitution, Article 1, Section 1. Plaintiff’s request for relief is not

entirely clear, but it appears that Plaintiff seeks “punitive” damages in the amount of $69,000

and “exemplary” damages in the amount of $45,000. Although she characterizes her damages

requests in these ways, she describes her requests in terms of compensatory damages for lost

income and other monetary costs.

Plaintiff has attached to her Complaint her Notice of Right to Sue letter from the EEOC.

(ECF No. 1-1 at 17.)

III.

A. All Claims Other Than Plaintiff’s Title VII Claims Directed to Defendant

McKesson Corp.

Upon the Undersigned’s review of the Complaint, certain claims can be disposed of at the

outset with minimal discussion. For example, any claims for alleged violations of Plaintiff’s

religious freedoms under both the U.S. and Ohio constitutions are subject to dismissal. Plaintiff

has named a private corporation and several individuals as defendants. “[O]nly defendants who

engage in state action may be liable for constitutional rights violations under the federal and

Ohio Constitutions.” Butler v. Karet, No. 21 CV 981, 2021 WL 3633476, at *1 (N.D. Ohio Aug.

17, 2021) (citing Lindsey v. Detroit Entertainment, LLC, 484 F.3d 824, 827 (6th Cir. 2007) (to

prevail on a federal constitutional claim under 42 U.S.C. § 1983, “Plaintiffs must demonstrate

that Defendant deprived them of their rights, privileges, or immunities secured by the

Constitution under color of state law”); Jordan v. Giant Eagle Supermarket, 2020-Ohio-5622, ¶

57, 2020 WL 7258579, at *11 (Ohio App. 8 Dist., 2020) (affirming dismissal of claims asserted

under the Ohio Constitution against Giant Eagle and Giant Eagle employees on the basis these

defendants are not “state or governmental actors or entities”)). In short, “a private party may not

be sued for constitutional rights violations ‘no matter how discriminatory or wrongful’ the

party’s conduct.” Id. (quoting Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003)).

Plaintiff’s constitutional claims remain subject to dismissal despite the following. Carol

Scott appears to be an employee of a state agency. Nevertheless, Plaintiff does not allege any

conduct undertaken by Ms. Scott that resulted in the deprivation of Plaintiff’s constitutional

rights. Indeed, Ms. Scott is only mentioned in the body of the Complaint as having advised

Plaintiff that the complaint filed with the Ohio Civil Rights Commission “would be processed in

line with the others.” (ECF No. 1-1 at 9.) Plaintiff therefore fails to set forth a plausible

constitutional claim against Ms. Scott. Further, Plaintiff describes McKesson as a federal

government contractor supplying medical equipment. To be sure, under limited circumstances,

private entities can be deemed government actors. Such circumstances include when a private

company’s function involves a traditionally exclusive government function, when a private

company’s conduct is “entwined with” government decisions or fairly attributable to the

government based on a close “nexus” between the state and the challenged conduct, or when the

government compelled the company’s action. Ciraci v. J.M. Smucker Co., 62 F.4th 278, 281

(6th Cir. 2023) (citations omitted). Here, Plaintiff has not alleged facts demonstrating that

McKesson’s conduct, or the conduct of its employees is fairly attributable to the state as required

to assert a claim under the federal and Constitutions. Plaintiff’s Complaint, read generously, at

most suggests that McKesson was complying with federal law in connection with instituting its

COVID-19 vaccination policy. However, “[s]o long as a private company’s actions turn on

compliance with a state or federal law, that does not by itself make the company a state actor.”

Id. Accordingly, the Undersigned RECOMMENDS that Plaintiff’s claims alleging

constitutional violations be DISMISSED.

Similarly, Plaintiff’s Title VII claims against the individual defendants are subject to

dismissal. “[I]t is well settled that Title VII prohibits suits against Defendants sued

individually.” Harrison v. Michigan Dep’t of Health & Hum. Servs., No. 22-CV-12034, 2023

WL 4237580, at *7 (E.D. Mich. June 28, 2023) (citing Little v. BP Expl. & Oil Co., 265 F.3d

357, 362 (6th Cir. 2001) (“The law in this Circuit is clear that a supervisor who does not

otherwise qualify as an employer cannot be held personally or individually liable under Title

VII.”) (citing Wathen v. Gen. Elec. Co., 115 F.3d 400, 405 (6th Cir. 1997); see also Griffin v.

Finkbeiner, 689 F.3d 584, 600 (6th Cir. 2012)) (“An individual cannot be held personally liable

for violations of Title VII.”)). Thus, “[w]hile an individual can be liable under Title VII in rare

instances when he or she qualifies as an employer,” in this case Plaintiff does not allege that any

of the individual Defendants employed Plaintiff, only that she was an employee of McKesson.

Accordingly, the Undersigned RECOMMENDS that Plaintiff’s Title VII claims against the

identified individual defendants be DISMISSED.

B. Plaintiff’s Title VII Claims Directed to McKesson Corp.

Turning to Plaintiff’s Title VII claims directed to McKesson Corp., the starting point for

the analysis is the precise nature of those claims. Plaintiffs appears to challenge both

McKesson’s vaccine policy and its mask policy. First, Plaintiff alleges that McKesson instituted

a COVID-19 vaccination policy, she requested a religious accommodation relating to that policy,

the policy prevented unvaccinated workers from being promoted or transferred, she was denied

her express request made to “DC leader” Brian Ginnane to be transferred to the warehouse in

Washington Court House, she was prevented from being promoted to Lead position in her

department, and she did not receive a response to her accommodation request as it related to the

vaccination policy. Further, Plaintiff alleges that, on March 8, 2022, McKesson instituted a

mask policy requiring only unvaccinated workers to wear masks, the following day she was

asked by her supervisor to wear her mask but Plaintiff stated that doing so was against her faith,

the next day Plaintiff was told that she would have to wear her mask or be sent home, she chose

to be sent home, at God’s direction she returned to work the next day wearing her mask, she then

requested a religious accommodation with respect to the mask policy, she never received a

response to that accommodation request either, and, over the next three months while the mask

policy was in effect before it was lifted on June 9, 2022, she observed other unvaccinated

employees not wearing their masks while she was required to wear hers. Based on these

allegations, Plaintiff claims religious discrimination arising from a failure to promote her, a

failure to accommodate her disability’3 and disparate treatment.

3 As discussed more fully below, the Court construes Plaintiff’s having checked this box on the form

Complaint as indicating her intention to assert a religious accommodation claim. Later in the form

Complaint, Plaintiff did not check the box to confirm that she is bringing a discrimination claim based on

a disability. Moreover, a Title VII plaintiff cannot bring claims that were not part of the original EEOC

charge in a new lawsuit. Poweleit v. DeJoy, No. 1:22-CV-194, 2023 WL 2743777, at *3 (S.D. Ohio Mar.

31, 2023) (citing 42 U.S.C. § 2000e–5(f)(1); Alexander v. Gardner–Denver Co., 415 U.S. 36, 47, 94

(1974)). Nothing in Plaintiff’s discrimination charge filed with the Ohio Civil Rights Commission

suggests a claim for disability discrimination. Nor could any facts asserted in that charge be considered

Title VII prohibits employers from discharging or discriminating against any individual

because of that individual’s “race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2.

The statute defines “religion” as

all aspects of religious observance and practice, as well as belief, unless an

employer demonstrates that he is unable to reasonably accommodate to an

employee’s or prospective employee’s religious observance or practice without

undue hardship on the conduct of the employer’s business.

42 U.S.C. § 2000e(j).

“‘There are two basic types of religious discrimination claims that an individual may

bring . . . under Title VII: disparate treatment claims and religious accommodation claims.’”

Haskins v. Bio Blood Components, No. 1:22-CV-586, 2023 WL 2071483, at *2 (W.D. Mich.

Feb. 17, 2023) (quoting Reed v. Int’l Union, No. 07-2505, 2009 WL 5943111, at *2 (6th Cir.

May 7, 2009)). Plaintiff appears to be attempting to bring both types of claims here.

To establish a prima facie case of religious discrimination for her employer’s failure to

provide a reasonable accommodation, Plaintiff must show that “‘(1) [s]he holds a sincere

religious belief that conflicts with an employment requirement; (2) [s]he has informed the

employer about the conflicts; and (3) [s]he was discharged or disciplined for failing to comply

with the conflicting employment requirement.’” Haskins, 2023 WL 2071483, at *2 (quoting

Yeager v. FirstEnergy Generation Corp., 777 F.3d 362, 363 (6th Cir. 2015)).

A disparate impact religious discrimination claim requires different allegations, requiring

Plaintiff to plead “(1) that [s]he was a member of a protected class, (2) that [s]he experienced an

adverse employment action, (3) that [s]he was qualified for the position, and (4) that [s]he was

as a reason to cause the EEOC to investigate a disability claim. Harrison, 2023 WL 4237580, at *14.

Similarly, Plaintiff does not assert that she suffers from any disability in the text of her Complaint.

replaced by a person outside of the protected class or that he was treated differently than

similarly situated employees.” Savel v. MetroHealth Sys., No. 22-CV-2154, 2023 WL 4490395,

at *7 (N.D. Ohio July 12, 2023). A failure to promote claim requires similar but more specific

allegations relating to that specifically recognized adverse action, including that (1) plaintiff was

a member of a protected class; (2) [s]he applied and was qualified for a promotion; (3) [s]he was

considered for and denied the promotion; and (4) an individual of similar qualifications who was

not a member of the protected class received the job at the time plaintiff’s request for the

promotion was denied. Bolden v. Lowes Home Centers, LLC, 783 F. App’x 589, 594 (6th Cir.

2019) (citing White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 240 (6th Cir. 2005)).

However, denial of a lateral transfer, “‘which by definition results in no decrease in title, pay or

benefits generally is not considered an adverse employment action for discrimination purposes.’”

Dunbar v. Evolent Health, Inc., No. 3:22-CV-304-CHB, 2023 WL 2336911, at *5 (W.D. Ky.

Mar. 2, 2023) (quoting Momah v. Dominguez, 239 F.App’x 114, 123 (6th Cir. 2007)).

Plaintiff has not pled facts sufficient to meet any of the above standards. The

Undersigned will take each purported claim in turn.

Taking Plaintiff’s religious accommodation claim first, it appears directed to both

policies and is subject to dismissal for several reasons. Most directly, Plaintiff has not pled the

third prong of such a claim with respect to either of McKesson’s COVID-19 related policies.

That is, Plaintiff fails to allege that she was discharged or disciplined either for her failure to

obtain a COVID-19 vaccine or her refusal to wear a mask. Although Plaintiff’s in forma

pauperis application appears to confirm that she no longer works at McKesson, nothing in

Plaintiff’s Complaint suggests how this came to be so. Her complaint is completely silent on this

issue as to the vaccination policy. With respect to the mask policy, Plaintiff alleges at most that

she opted to be sent home rather than to wear a mask because wearing a mask was against her

faith. This incident, however, occurred before Plaintiff formally requested an exemption from

the mask requirement for religious reasons. Moreover, Plaintiff’s conclusory allegations do not

provide any factual basis from which the Undersigned could conclude that being sent home

under this circumstance plausibly rises to the level of discipline necessary to support a religious

accommodation claim. Even were the Undersigned to assume the most obvious potential

ramification – some loss of pay - “‘more than loss of pay is required to demonstrate discipline.’”

Smith v. Northstar Dining Chesterfield, LLC, No. 12-14311, 2014 WL 4829591, at *9 (E.D.

Mich. Sept. 29, 2014) (quoting Tepper v. Potter, 505 F.3d 508, 514 (6th Cir. 2007)).

Further, and more fundamentally with respect to McKesson’s mask policy specifically, it

is not clear that Plaintiff’s Complaint could be construed fairly as having sufficiently pled the

first prong of a religious accommodation claim. Although Plaintiff asserts that she held a sincere

religious belief preventing her from wearing a mask, that allegation is undercut by her

explanation that, after being sent home, God advised her to return to work and wear her mask -

which she did.

Finally, none of Plaintiff’s allegations can be read as suggesting any constructive

discharge arising from Plaintiff’s objection to either of McKesson’s COVID-related policies.

For example, Plaintiff does not allege that McKesson deliberately created intolerable working

conditions, as perceived by a reasonable person. Nor does Plaintiff plead that McKesson created

such conditions with the intention of forcing her to quit. And, as noted, it is not clear from

Plaintiff’s allegations that she quit as a result of these policies. Equal Emp. Opportunity

Comm’n v. Publix Super Markets, Inc., 481 F. Supp. 3d 684, 693 (M.D. Tenn. 2020). For all of

these reasons, the Undersigned RECOMMENDS that Plaintiff’s religious accommodation claim

be DISMISSED.

Plaintiff’s purported disparate treatment claim, which appears directed to only

McKesson’s vaccination policy, is likewise subject to dismissal. First, as Plaintiff describes it,

the policy limiting transfers or promotions applied only to “unvaccinated workers.” Plaintiff

does not allege that only employees claiming a religious exemption were ineligible for transfers

or promotions under the vaccination policy. And there are other reasons, of course, that may

cause a worker to choose to remain unvaccinated aside from any religious conviction. One

example that quickly comes to mind is health concerns. Thus, as alleged here, any limitation on

transfers or promotions was based on vaccination status, not religion. Significantly,

“[v]accination status is not a class to which Title VII protections apply.” Savel, 2023 WL

4490395, at *8.

Further, Plaintiff’s allegations that she was denied a promotion, or a transfer, as a result

of the vaccination policy are not particularly clear and, regardless, are wholly conclusory. For

example, Plaintiff asserts that the vaccination policy prevented her from being promoted to a

Lead position in her department.4 She does not, however, allege that she applied and was

qualified for a promotion to the Lead position or that she was considered for and denied the

promotion. Moreover, even assuming Plaintiff would qualify as a member of a protected class

for purposes of this claim, she does not plead that an individual of similar qualifications who was

not a member of the protected class received the job at the time her request for the promotion

was denied. Bolden, 783 F. App’x at 594. The absence of such allegations is fatal to Plaintiff’s

religious discrimination claim.

4 From Plaintiff’s filings it appears that, during the relevant time period, she was employed by McKesson

as a Material Handler in the HAZMAT department. (ECF No. 1-1 at 9, 18.)

The same is true regarding Plaintiff’s claimed denial of a transfer. Plaintiff alleges only

that she requested to be transferred to a McKesson facility closer to her “property in Jackson

Ohio.” (ECF No. 1-1 at 9.) This statement is insufficient to suggest that the transfer Plaintiff

requested could be construed as anything other than a lateral transfer. The denial of a lateral

transfer, however, generally is not considered a materially adverse action sufficient to support a

discrimination claim. Dunbar, 2023 WL 2336911, at *5. For all of these reasons, the

Undersigned RECOMMENDS that Plaintiff’s religious discrimination claim be DISMISSED.

Finally, the Undersigned notes that Plaintiff has filed a motion to obtain electronic case

filing rights. (ECF No. 4.) In light of the recommendation that Plaintiff’s Complaint be

dismissed in its entirety, the motion is DENIED.

IV.

For the reasons set forth above, it is RECOMMENDED that the Complaint be

DISMISSED in its entirety for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B).

Plaintiff’s motion to obtain electronic case filing rights (ECF No. 4) is DENIED.

PROCEDURE ON OBJECTIONS

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 in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review of by the District Judge

and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l

Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the

magistrate judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal

the district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding

that defendant waived appeal of district court’s denial of pretrial motion by failing to timely

object to magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation

omitted)).

IT IS SO ORDERED.

/s/ Elizabeth A. Preston Deavers______

DATED: August 11, 2023 ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE