Bishop

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JAMES K. BISHOP, : Case No. 2:26-cv-15

:

Plaintiff, :

: Chief Judge Sarah D. Morrison

vs. :

Magistrate Judge Peter B. Silvain, Jr.

:

OHIO DEPARTMENT OF :

CORRECTIONS, et al., :

:

Defendants. :

REPORT AND RECOMMENDATIONS1

Plaintiff filed a pro se civil rights Complaint in this Court pursuant to 42 U.S.C. § 1983.

(Doc. #5). By separate Order, the Court granted Plaintiff’s request to proceed in forma pauperis.

(Doc. #4).

This matter is now before the Court for a sua sponte review of Plaintiff’s Complaint to

determine whether the Complaint, or any portion of it, should be dismissed because it 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. See 28 U.S.C. § 1915(e)(2)(B). Also

before the Court is Plaintiff’s Motion for Appointment of Counsel. (Doc. #2).

For the reasons set forth below, the undersigned RECOMMENDS that Plaintiff’s

Complaint be DISMISSED.

I. Screening Legal Standard

In enacting the original in forma pauperis statute, Congress recognized that a “litigant

1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

whose filing fee 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.” Denton v.

Hernandez, 504 U.S. 25, 31 (1992) (citing Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To

prevent such abusive litigation, Congress has authorized federal courts to dismiss an in forma

pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see also 28

U.S.C. § 1915(e)(2)(B)(i). A complaint may be dismissed as frivolous when the plaintiff cannot

make any claim with a rational or arguable basis in fact or law. Neitzke, 490 U.S. at 328–29; 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 the 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, 504 U.S. at 32; Lawler, 898 F.2d at 1199. The Court need not accept as true

factual allegations that are “fantastic or delusional” in reviewing a complaint for frivolousness.

Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (citing Neitzke, 490 U.S. at 328).

Congress also has authorized the sua sponte dismissal of complaints that fail to state a

claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). A complaint filed by a

pro se plaintiff must be “liberally construed” and “held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citing

Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Though by the same token, the complaint “must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470–71 (“[D]ismissal standard articulated in

Iqbal and Twombly governs dismissals for failure to state a claim [under §§ 1915A(b)(1) and

1915(e)(2)(B)(ii)].”).

“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.”

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-pleaded

factual allegations as true but need not “accept as true a legal conclusion couched as a factual

allegation.” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

Although a complaint need not contain “detailed factual allegations,” it must provide “more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor does a

complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id.

at 557. The complaint must “give the defendant fair notice of what the … claim is and the

grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).

II. Allegations and Parties

Plaintiff names as Defendants: NCI Warden Forshey; Mr. Cobb, NCI Inspector in charge

of responding to grievances; Mr. Perkins, NCI Lieutenant in charge of the mailroom; Ohio

Department of Rehabilitation and Correction (“ODRC”) Director Annette Chambers-Smith; L.

Holiday, NCI mailroom clerk; and an unknown supervisor (“John Doe Supervisor”) who

destroyed legal documents from Kroll Restructuring. (Doc. #5, PageID #65).

Plaintiff states that in July 2025, legal mail from a New York-based firm named Kroll

Restructuring, pertaining to personal injury claims that Plaintiff filed in New York against

Purdue Pharma, was sent to Plaintiff at NCI. Id. at 66. Because the mail did not have the control

number that ODRC requires for legal mail, it was treated as regular mail rather than legal mail.

(Doc. #5-3, PageID #86). Defendants Holiday and Perkins withheld the mail from Plaintiff

because, as regular mail, it contained more than the allowed number of pages (5), as well as a

flash drive that was not previously approved. (Doc. #5, PageID #66; Doc. #5-3, PageID #s 86-

87). Plaintiff pursued several avenues to obtain the withheld mail.

On July 29, 2025, Plaintiff filed an appeal to Warden Forshey, which Plaintiff states that

Forshey never ruled on. (Doc. #5, PageID #66). Plaintiff also filed a grievance to point out,

among other things, that the New York sender of the mail was likely unaware of Ohio’s

procedures for sending legal mail. But Defendant Perkins denied the grievance because the mail

at issue did not have the required control number and was thus treated as regular mail. Plaintiff

escalated the grievance on July 30, 2025, arguing that it was not proper to withhold legal mail

that did not pose a threat, just for containing too many pages.2 Defendant Cobb responded that

the mail was withheld not because it posed a threat, but because it contained a hard drive not

previously approved, as well as a pamphlet that did not come through the institution book

program, and thereby constituted contraband. (Doc. #5, PageID #s 66-67; Doc. #5-3, PageID

#86). Plaintiff also notes that in July 2025, he sent several kites to Defendants Cobb and Perkins

imploring for the proper delivery and/or return of legal mail he anticipated receiving, since the

mail involved “a time sensitive matter.” (Doc. #5, PageID #66).

Plaintiff continues that on July 31, 2025, Defendant Cobb ordered a “John Doe

Supervisor” to destroy the legal mail as contraband, which the John Doe Supervisor did. Id. at

67. That legal mail, Plaintiff explains, contained vital documents he needed to sign and return in

2 Plaintiff attaches a copy of the “Notice of an Unauthorized Item Received / Withholding of Incoming Mail” that

was issued to him on July 28, 2025. It includes language advising the recipient of the right to appeal stating, among

other things, that “[t]he appeal should explain why the correspondence does not present a threat to the security and

safety of the institution, its staff, or the incarcerated population.” (Doc. #5-3, PageID #s 83-84).

order to proceed with his personal injury claims against Purdue Pharma.

Plaintiff states that on October 10, 2025, he received a letter from Purdue Pharma stating

that Plaintiff was deficient in his claim(s) against Purdue Pharma because he failed to respond to

the July 2025 mailing from Kroll Restructuring. Id. Plaintiff contacted a lawyer who had

previously represented Plaintiff in another matter for help getting the information Plaintiff

needed to pursue his claims—the information and documents that were destroyed in July—but it

appears that neither that lawyer, nor an associate whose help the lawyer sought, were able to

assist Plaintiff. (Doc. #5-3, PageID #s 96-99).

Plaintiff contends that he was deprived of his First Amendment rights to redress and/or

access to the court by Defendants Perkins’ and Holiday’s withholding of his legal mail and by

Defendants Cobb’s and John Doe Supervisor’s destruction of his legal mail. Plaintiff further

contends that Defendants Chambers-Smith’s and Forshey’s failure to train and/or hire competent

employees contributed to the denial of Plaintiff’s rights to redress and access to the courts.

Finally, Plaintiff argues that Defendants Perkins and Cobb retaliated against Plaintiff by

preventing him from taking advantage of the grievance process through machination,

misrepresentation, and/or intimidation in violation of state law and his federal Fourteenth

Amendment rights.

In relief, Plaintiff seeks: (a) “preliminary and permanent injunctive relief against [NCI]

staff, ‘and [their] agents,’ to ‘immediately order the NCI staff at the facility to follow ODRC

rules and/or restriction to prevent further injuries to inmates. In addition to retraining those in the

proper procedure concerning legal mail”; (b) compensatory damages in the amount of

$11,594,746.40 from Defendants’ employer; (c) punitive damages in the amount of $500,000.00

against Defendant Perkins, $500,000.00 against Defendant Holiday, $500,000.00 against

Defendant Chambers-Smith, $500,000.00 against Defendant Cobb, and $500,000.00 against

Defendant unknown supervisor; (d) all costs involved with this action; (e) any other relief that

the Court determines just, proper, and equitable; and (f) a trial by jury on all issues triable to a

jury. (Doc. #5, PageID #s 71-72).

III. Analysis

Based on the above allegations, Plaintiff raises, pursuant to 42 U.S.C. § 1983, in Counts

One and Two, First Amendment claims of denial of his rights to redress and/or access to the

Courts; in Counts Three and Four, denial of his rights to redress and/or access to the Courts

stemming from the failure of Defendants Chambers-Smith and Forshey to train and/or hire

competent employees; and in Count Five, a retaliation claim against Defendants Perkins and

Cobb in violation of state tort law and the Fourteenth Amendment. Plaintiff sues all Defendants

in their individual and official capacities. (Doc. #5, PageID #64). For the reasons set forth below,

the undersigned RECOMMENDS that all of Plaintiff’s claims be DISMISSED.

A. Official Capacity Claims for Monetary Damages

As a preliminary matter, Plaintiff’s claims against Defendants in their official capacities

are subject to dismissal to the extent that he seeks monetary damages. Absent an express

waiver, a state is immune from damages suits under the Eleventh Amendment. See Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (and cases cited

therein); Edelman v. Jordan, 415 U.S. 651, 663 (1974). The State of Ohio has neither

constitutionally nor statutorily waived its Eleventh Amendment immunity in the federal courts.

See Johns v. Supreme Court of Ohio, 753 F.2d 524 (6th Cir. 1985); State of Ohio v. Madeline

Marie Nursing Homes No. 1 and No. 2, 694 F.2d 449, 460 (6th Cir. 1982). The Eleventh

Amendment bar extends to actions where the state is not a named party but where the action is

essentially one for the recovery of money from the state. Edelman, 415 U.S. at 663 (citations

omitted); Ford Motor Co. v. Dep’t of Treasury of State of Indiana, 323 U.S. 459, 464 (1945).

A suit against Defendants in their official capacities would, in reality, be a way of pleading the

action against the entity of which Defendants are agents. Monell v. Dep’t of Soc. Servs. of New

York, 436 U.S. 658, 690 (1978). Thus, actions against state officials in their official capacities

are included in this bar. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989); Scheuer

v. Rhodes, 416 U.S. 232, 237 (1974); Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010)

(“[A]n official-capacity suit against a state official is deemed to be a suit against the state and

is thus barred by the Eleventh Amendment, absent a waiver.” (citation and ellipsis omitted)).

Because all of the properly named Defendants are immune from suit in their official capacities

to the extent that Plaintiff seeks monetary damages, the claims against the properly named

Defendants in their official capacities should be DISMISSED with prejudice.

B. Counts One and Two – First Amendment Rights to Receive Mail and for

Access to the Courts

Plaintiff sues Defendants Perkins and Holiday in Count One for withholding his legal

mail without justification in violation of his First Amendment rights to redress and access to

the Courts. (Doc. #5, PageID #s 67-68). In Count Two, Plaintiff sues Defendants Cobb and the

John Doe Supervisor for destroying his legal mail from Kroll Restructuring without

justification, in violation of his First Amendment rights to redress and access to the Courts.

There are two components to this First Amendment claim: (1) denial of access to the Courts,

and (2) denial of the right to receive mail. But here, Plaintiff fails to state a claim on either

component.

Under the First Amendment, prisoners have a fundamental right of access to the Courts.

Bounds v. Smith, 430 U.S. 817, 821 (1977). To set forth a viable denial-of-access-to-the-courts

action under the First Amendment, Plaintiff must demonstrate that he suffered actual injury as

a result of the Defendants’ actions. Courtemanche v. Gregels, 79 F. App’x 115, 117 (6th Cir.

2003). But critically, the injury requirement is not satisfied by just any type of frustrated legal

claim. Id. Instead, “a prisoner’s right of access to the courts is limited to direct criminal

appeals, habeas corpus applications, and civil rights claims challenging the conditions of

confinement.” Id. (citing Lewis v. Casey, 518 U.S. 343, 355, 116 S.Ct. 2174, 135 L.Ed.2d 606

(1996); Thaddeus–X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999)); Castellon v. Hinkle, No.

2:20-cv-6420, 2022 WL 3139606, at *2 (S.D. Ohio Aug. 5, 2022). Further, “a prisoner must

show an actual injury to existing or contemplated litigation which raises nonfrivolous claims.”

Id. Here, Plaintiff’s allegations and exhibits suggest that Defendants’ actions in withholding

and destroying his mail prevented him from timely filling out and returning forms in pursuit of

personal injury claims in a New York federal court. That does not satisfy the injury

requirement necessary to state a viable denial-of-access claim under the First Amendment.

As for the second component, “[a] prisoner’s right to receive mail is protected by the

First Amendment, but prison officials may impose restrictions that are reasonably related to

security or other legitimate penological objectives.” Sallier v. Brooks, 343 F.3d 868, 873 (6th

Cir. 2003) (citation omitted). Thus, “prison officials who open and read incoming mail in an

arbitrary and capricious fashion violate a prisoner’s First Amendment rights.” Id. at 873-74

(emphasis added and citation omitted). When a prisoner’s incoming mail is “legal mail,” there

is a “heightened concern with allowing prison officials unfettered discretion to open and read

an inmate’s mail because a prison’s security needs do not automatically trump a prisoner’s

First Amendment right to receive mail, especially correspondence that impacts upon or his

import for the prisoner’s legal rights, the attorney-client privilege, or the right of access to the

court.” Id. at 874 (citing Kensu v. Haigh, 87 F.3d 172, 174 (6th Cir. 1996)). Plaintiff’s

allegations and exhibits do not permit an inference that he satisfies these standards. First, the

undersigned already determined that Plaintiff fails to demonstrate the requisite injury.

Additionally, it is questionable whether Defendants’ initial seizure of mail from Kroll

Restructuring was seizure of legal mail sufficient to trigger Sallier’s “heightened concern.”

Even if it did, once Defendants identified the presence of contraband in the form of a hard

drive that was not approved ahead of time and a pamphlet that did not comply with the

institution’s book program, Plaintiff cannot plausibly allege that Defendants acted in an

arbitrary and capricious manner, as discussed by Sallier, in withholding and destroying the

mail in accordance with institution policies. (Doc. #5-3, PageID #s 86-87). Moreover, any

allegation that prison officials failed to take corrective action after they were notified of a

prisoner’s complaints about the handling of his mail does not establish § 1983 liability. See

Wilkins v. Southern Ohio Corr. Fac., No. 1:21-cv-260, 2021 WL 9031789, at *4 (S.D. Ohio

June 2, 2021).

At most, Plaintiff’s allegations about the destruction of the flash drive and legal mail, as

well as the possible forfeiture of personal injury claims, plead a loss of property. While it is

possible that Plaintiff may have state remedies available to him, his allegations fail to state a

claim upon which § 1983 relief may be granted. See, e.g., Johnson v. Chambers-Smith, No.

2:22-cv-4179, 2023 WL 2555446, at *22 (S.D. Ohio March 17, 2023) (noting that while loss of

property generally does not state a due process claim, state tort remedies may be available)

(citations omitted).

To survive initial screening, a claim must be plausible, not just possible. “[W]here the

well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged—but has not ‘show[n]’—that the pleader is entitled to

relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). In sum, Plaintiff’s Count One

and Count Two claims alleging First Amendment violations from the withholding of legal mail

and the denial of access to the Courts should be DISMISSED without prejudice for failure to

state a claim.

C. Counts Three and Four – Failure to Train

Plaintiff argues in Counts Three and Four that the failure of ODRC Director Annettee

Chambers-Smith and NCI Warden Jay Forshey to train and/or hire competent employees

resulted in the withholding and destruction of his legal mail, which contributed to the denial of

his First Amendment rights to redress and/or access to the Courts. (Doc. #5, PageID #s 69-70).

At base, Plaintiff seeks to impose § 1983 liability on Defendants Chambers-Smith and Forshey

for their supervisory roles. But § 1983 liability cannot be imposed solely upon the basis of

respondeat superior. See generally Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 80-81 (6th Cir.

1995). “In order to find supervisory personnel liable under § 1983, the plaintiff must allege that

the supervisor condoned, encouraged, or knowingly acquiesced in the alleged misconduct.”

Bennett v. Smith, 110 F. App’x 633, 635 (6th Cir. 2004) (citation omitted).

Fatal to Plaintiff’s claim is that the actions taken by Defendants Cobb, Perkins,

Holiday, and the John Doe Supervisor in withholding and destroying Plaintiff’s mail from

Kroll Restructuring were the result not of Chambers-Smith and Forshey failing to train or

supervise them, but of those officers’ enforcement of established ODRC policies concerning

legal and regular mail. Plaintiff’s own exhibits bear this out. For example, Defendant Cobb

explained, in denying Plaintiff’s July 29, 2025, grievance, that Plaintiff’s mail was initially

held because it was not clearly distinguished as legal mail under AR 5120-9-17(B). (Doc. #5-3,

PageID #86). Defendant Cobb continued that Plaintiff’s mail was then held not because it

posed a threat as outlined in 5120-9-17G, but because it contained a hard drive that was not

previously approved as stated in 5120-9-19 and was thus handled as contraband in accordance

with 5120-9-55. Defendant Cobb stated that Plaintiff’s mail also contained a pamphlet that was

required to come from the institutional book program and was thus also handled as contraband.

Subsequently, Defendant Perkins explained why Plaintiff’s mail was withheld and stated that

“we are just following policy.” Id. at 86-87. Thus, the withholding of Plaintiff’s mail appears

to have been a function of the routine enforcement of institution mail policies—not inadequate

training or incompetence.

Beyond the foregoing, Plaintiff raises no additional details or questions about the

adequacy of any training processes that would permit the imposition of any § 1983 liability on

Chambers-Smith or Forshey for their failure to train employees. In sum, whatever challenge to

ODRC’s or NCI’s policies regarding legal and regular mail might be available to Plaintiff, he

cannot show here that the withholding and destruction of his mail in this case was the result of

Chambers-Smith and/or Forshey failing to train, supervise, or hire “competent” personnel.

Thus, Plaintiff’s Third and Fourth Count Failure-to-Train claims should be

DISMISSED without prejudice for failure to state a claim.

D. Count Five – Retaliation/Grievance Procedure

Here, Plaintiff alleges that Defendants Perkins, Cobb, and Love thwarted him “from

taking advantage of a grievance process through machination, misrepresentation, or

intimidation.” (Doc. #5, PageID #70). These allegations fail to state a claim for several

reasons. As a preliminary matter, “Love” is not a named as a Defendant in the section of his

Complaint designated for listing Defendants, (id. at 65), nor is “Love” named in the Plaintiff’s

factual allegations, (id. at 66-67). In any event, although Plaintiff is not precisely challenging

the efficacy of the NCI grievance process or the results of his grievances, it bears noting here

that Plaintiff has no constitutionally protected right to an effective prison grievance procedure

regardless of the substance of his complaints. Young v. Gundy, 30 F. App’x 568, 569-70 (6th

Cir. 2002) (citations omitted).

Most importantly, Plaintiff fails to present allegations from which the Court could infer

that actions taken by Perkins, Cobb, and Love in denying Plaintiff’s grievances constituted

retaliation. To establish a claim of retaliation, Plaintiff must show that:

(1) he was engaged in protected conduct; (2) an adverse action was taken against

him that would deter a person of ordinary firmness from continuing to engage in

that conduct; and (3) there was 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.

Wiley v. Kentucky Dep’t. of Corr., No. 11-97-HRW, 2012 WL 5878678, at *13 (E.D. Ky. Nov.

21, 2012) (citing Brown v. Crowley, 312 F.3d 782, 787 (6 th Cir. 2002); and Thaddeus-X, 175

F.3d at 394)). Plaintiff does not plausibly allege facts that would allow the Court to find all of

these factors. Inmates have a First Amendment right to file non-frivolous grievances, Herron v.

Harrison, 203 F.3d 410, 415 (6th Cir. 2000), and Plaintiff thus was engaging in protected

conduct. But Plaintiff’s allegations do not support an inference that Defendants took an adverse

action that would deter a person of ordinary firmness from continuing to engage in that conduct;

they merely denied his grievances. Nor has Plaintiff pleaded facts plausibly suggesting

Defendants’ actions were motivated by Plaintiff’s protected conduct. All Plaintiff offers are

conclusory allegations unsupported by any facts. That is, Plaintiff’s allegations and exhibits

show nothing but Defendants’ matter-of-fact explanations for why Plaintiff’s grievances were

denied in accordance with institution policies. (Doc. #5-3, PageID #s 85-91). Plaintiff offers no

examples or facts from which the Court could plausibly infer manipulation, misrepresentation, or

intimidation by the Defendants.

Thus, Plaintiff’s Count Five Retaliation claim should be DISMISSED without prejudice

for failure to state a claim.

IV. Conclusion

The undersigned concludes that Plaintiff’s Complaint should be DISMISSED for failure

to state any claims upon which § 1983 relief may be granted.

IT IS THEREFORE RECOMMENDED THAT:

1. The instant complaint be DISMISSED without prejudice; and

2. The Court CERTIFY under 28 U.S.C. § 1915(a)(3) that, for the foregoing

reasons, an appeal of any Order adopting this Report and

Recommendations would not be taken in good faith and therefore DENY

Plaintiff leave to appeal in forma pauperis. See McGore v. Wrigglesworth,

114 F.3d 601 (6th Cir. 1997).

September 3, 2026 s/Peter B. Silvain, Jr.

Peter B. Silvain, Jr.

United States Magistrate Judge

PROCEDURE ON OBJECTIONS

Pursuant to Fed. R. Crim. P. 72(b), WITHIN 14 DAYS after being served a copy of the

recommended disposition, a party may serve and file specific written objections to the proposed

findings and recommendations. This period may be extended further by the Court on timely

motion for an extension. Such objections shall specify the portions of the Report objected to and

shall be accompanied by a memorandum of law in support of the objections. If the Report and

Recommendation is based in whole or in part upon matters occurring at an oral hearing, the

objecting party shall promptly arrange for the transcription of the record, or such portions of it as

all parties may agree upon, or the Magistrate Judge deems sufficient, unless the assigned District

Judge otherwise directs. A party may respond to another party’s objections WITHIN 14 DAYS

after being served with a copy thereof. Failure to make objections in accordance with this

procedure may forfeit rights on appeal. See Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019).

See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).