Hayes v. Corrections Corporation of America et al

Filing 129

MEMORANDUM DECISION AND ORDER Defendant Bruce Cooper's Motion for Summary Judgment (Dkt. #120 ) is GRANTED. All claims against Defendant Cooper are hereby dismissed with prejudice. Plaintiff's Motion for Leave of Court to File Motion for Summary Judgment (Dkt. #123 ) is DENIED. Plaintiff Michael T. Hayes' Motion for Summary Judgment (Dkt. #124 ) is DENIED as untimely, and, alternatively, as meritless. Plaintiff's Motion in Opposition of Defendant Bruce Cooper's Motion forSummary Judgment (Dkt. 125) is GRANTED.. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MICHAEL T. HAYES,
Case No. 1:10-cv-00011-EJL
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
CORRECTIONS CORPORATION OF
AMERICA (CCA), a Maryland
Corporation; JOHN FERGUSON, CEO,
CCA; PHILLIP VALDEZ, WARDEN
(ICC); IDAHO CORRECTIONAL
CENTER; DAN PRADO; NANCY
BAERLOCHER, R.N.; WAYNE
PETERSON D.M.D.; KLINT
STANDER, M.D.; JOSEPH CORDONA;
RORY O’CONNER; NORMA
RODRIGUEZ; CHRIS ROSE; A.
HUNTLEY; DANIEL HUDON; JOEL
TAYLOR; JAMES QUINN; JEFF
KIRKMAN; MARTI MOORE; BRIAN
JOHNSON; PATRICIA D. WILLIS;
BRANDON DELANEY; DAROLD
BREUER; CHESTER PENN; C/O LIVI;
JENNIFER GARDNER; JOANN
ADAMS; MALCOLM BEACH; C/O
ANDERSON; VALDEZ; SERGEANT
SHARP;
Defendants.

Pending before the Court are the following motions: (1) Defendant Bruce Cooper’s
Motion for Summary Judgment (Dkt. 120); (2) Plaintiff Michael T. Hayes’ Motion for

MEMORANDUM DECISION AND ORDER - 1

Leave of Court to File Motion for Summary Judgment (Dkt. 123); (3) Plaintiff’s Motion
for Summary Judgment (Dkt. 124); and (4) Plaintiff’s Motion in Opposition of Defendant
Bruce Cooper’s Motion for Summary Judgment (Dkt. 125.) The Court finds that the
decisional process would not be aided by oral argument. After reviewing the record, case
law, and the arguments of the parties, the Court enters the following Order addressing all
pending motions.
BACKGROUND
Plaintiff is an inmate in the custody of Idaho Department of Correction (IDOC)
and is currently housed at the Idaho Maximum Security Institution (IMSI). (Dkt. 120-4,
p.2.) He initiated this civil rights lawsuit by filing the original Complaint on January 11,
2010 (Dkt. 1), which he subsequently amended twice. (Dkts. 34, 61.) In Part C of the
Second Amended Complaint (Dkt. 64), Plaintiff alleges that on November 4, 2011,
Defendant Cooper was deliberately indifferent to Plaintiff’s serious medical needs when
he refused to give Plaintiff any pain medication for the severe tooth pain he was
experiencing at that time. (Id. pp.1-6.) This is the only incident upon which Plaintiff
asserts his claim of deliberate indifference against Defendant Cooper.
On December 30, 2011, the Court permitted Plaintiff to proceed on this “potential
Eighth Amendment claim,” though the Court noted “it is unclear whether Cooper’s failure
to give Plaintiff an alternative medication arose because Cooper and a correctional officer
perceived Plaintiff as threatening.” (Dkt. 65, p.6.) The Court later set the pretrial
deadlines in this case, including the deadline of March 11, 2013 for filing dispositive
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motions. (Dkts. 78, 116.)
On March 8, 2013, Defendant Cooper timely filed the instant Motion for Summary
Judgment. (Dkt. 120.) Then on April 12, 2013, Plaintiff filed: (1) a Motion for Leave of
Court to File Motion for Summary Judgment; (2) a Motion for Summary Judgment; and
(3) a Motion in Opposition of Defendant Bruce Cooper’s Motion for Summary Judgment.
(Dkts. 123,124, 125.) Defendant Cooper filed a Memorandum in Opposition to Plaintiff’s
Motion for Leave of Court to File Motion for Summary Judgment (Dkt. 127); Plaintiff did
not file a reply.
REVIEW OF PENDING MOTIONS
The Court will first address Plaintiff's multiple motions, and then address
Defendant's Motion for Summary Judgment.
1.

Plaintiff’s Motion for Leave of Court to File Motion for Summary Judgment
(Dkt. 123)
On April 12, 2013, Plaintiff filed a Motion for Leave of Court to File Motion for

Summary Judgment so that the Court could consider his Motion for Summary Judgment
(which he filed on the same day). (Dkt. 123.) Although Plaintiff’s Motion for Leave of
Court to File Motion for Summary Judgment does not specifically request a modification
to the pretrial scheduling order, that would be the result were the Court to grant this
Motion, so the Court will treat it as such.
Federal Rule 16(b)(4) provides that a scheduling order “may be modified only for
good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). This good cause

MEMORANDUM DECISION AND ORDER - 3

standard “primarily considers the diligence of the party seeking the amendment.” Johnson
v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). A court may modify
the pretrial schedule if the deadline cannot reasonably be met despite the diligence of the
party seeking the extension. Id.
Here, Plaintiff’s sole argument in support of the good cause requirement for his
Motion for Leave to File Motion for Summary Judgment is that “Plaintiff’s access to the
courts has been so hindered, impeded, and delayed as a denial of this request would result
in a misscarrage [sic] of justice.” (Dkt. 123, p.2.) Plaintiff has not provided the Court with
any specific facts or evidence to support this allegation, nor has he demonstrated his
diligence in otherwise trying to comply with the dispositive motion deadline. Defendant
Cooper argues that Plaintiff’s request is both untimely and devoid of a showing of good
cause. (Dkt. 127.) The Court agrees.
Plaintiff has known since July 5, 2012 of the March 11, 2013 deadline for filing
dispositive motions. (Dkt. 78, p.7.) In the two months preceding the dispositive motion
deadline, instead of preparing his dispositive motion, Plaintiff filed an extension of time
to complete discovery, three motions for bench warrants, a motion requesting an
extension of time to file a third amended complaint, and a motion to stay the entire case.
(See Dkts. 108, 109, 110, 111, 114, 117.) In each of these motions, Plaintiff either argued
that the prison paralegal was impeding and hindering Plaintiff’s access to the courts, or
that Plaintiff needed additional time to comply with Court-ordered deadlines because he
was so busy litigating multiple cases before this Court. Although the Court initially
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granted Plaintiff additional time to complete discovery and to file his third amended
complaint (see Dkt. 113), the Court denied the frivolous Motions for Bench Warrants and
subsequently entered two more Orders denying any further extensions of time or to stay
the case altogether because “Plaintiff is hard-pressed to show that he has acted with
diligence in this matter” (Dkt. 116, p.5) and his argument regarding the paralegal’s
interference with his access to the courts “is a bald statement with no factual support
whatsoever.” (Dkt. 119, p.3.) Moreover, Plaintiff did not file the instant Motion for Leave
of Court to File Motion for Summary Judgment until one month after the dispositive
motion deadline.
Based on the substantial evidence in the record herein – and Plaintiff’s failure to
provide any evidence whatsoever to support his oft-repeated but wholly unsupported
claim that he is being denied access to the courts – the Court concludes that Plaintiff has
failed to establish good cause for the Court to modify the existing pretrial scheduling
order. Accordingly, Plaintiff’s Motion for Leave of Court to File Motion for Summary
Judgment will be denied. See, e.g., Ransom v. Johnson, 2010 WL 2219398 at *2 (E.D.
Cal. 2010) (prisoner’s untimely motion to modify scheduling order denied because of his
failure to show good cause for failing to meet the dispositive motion deadline).

MEMORANDUM DECISION AND ORDER - 5

2.

Plaintiff Michael T. Hayes’ Motion for Summary Judgment (Dkt. 124)
On April 12, 2013, Plaintiff also filed his Motion for Summary Judgment (Dkt.

124), and five days later he filed his Statement of Undisputed Facts in Support of Plaintiff
Michael T. Hayes Motion for Summary Judgment. (Dkt. 126.) Defendants have presented
evidence from the Court’s record that the deadline established for filing a pretrial
dispositive motion was March 11, 2013. (Dkt. 78.) The Court has examined the record
and finds that Plaintiff’s Motion for Summary Judgment, filed on April 12, 2013, is
untimely according to the pretrial schedule set forth in the Order entered July 5, 2012. In
addition, as discussed supra, Plaintiff has failed to establish good cause for this Court to
modify the dispositive motion deadline. Plaintiff’s Motion for Summary Judgment will
therefore be denied as untimely. Alternatively, the Motion will be denied on the merits, as
the inverse conclusion of the granting of Defendant Bruce Cooper’s Motion for Summary
Judgment. The Court has considered Plaintiff’s Statement of Undisputed Facts as a
supplement to Plaintiff’s opposition to the granting of Defendant Cooper’s Motion. (Dkt.
126.)
3.

Plaintiff’s Motion in Opposition of Defendant Bruce Cooper’s Motion for
Summary Judgment (Dkt. 125)
The third and final motion Plaintiff filed on April 12, 2013 is his Motion in

Opposition of Defendant Bruce Cooper’s Motion for Summary Judgment. (Dkt. 125.) The
Court has reviewed the Motion and determined that it is not a separate motion seeking
specific relief from the Court, but rather it is Plaintiff’s response brief to Defendant

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Cooper’s Motion for Summary Judgment. See Dist Idaho Loc. Civ. R. 7.1(c) (responding
party shall serve and file a response brief within twenty-one days after moving party files
its initial motion). Accordingly, although the Motion was filed 12 days past the deadline
for filing a responsive pleading, the Court will nonetheless grant Plaintiff’s Motion in
Opposition of Defendant Bruce Cooper’s Motion for Summary Judgment to the extent the
Court considers it Plaintiff’s response brief to Defendant’s Motion for Summary
Judgment.
4.

Defendant Bruce Cooper’s Motion for Summary Judgment (Dkt. 120)
On March 8, 2013, Defendant Cooper timely filed his Motion for Summary

Judgment and argues that he is entitled to summary judgment as a matter of law because
there are no genuine issues of material fact or evidence demonstrating that he was
deliberately indifferent to Plaintiff’s medical needs. (Dkt. 120-1, p.2.) Plaintiff opposes
this Motion and contends that Defendant Cooper acted with deliberate indifference “by
refusing to give victim Hayes adequate noninsaid pain medication.” (Dkt. 125, p.2.)
A.

Standard of Law

Summary judgment is appropriate where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may
affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
MEMORANDUM DECISION AND ORDER - 7

In a motion for summary judgment, the moving party bears the “initial burden of
identifying for the court those portions of the record which demonstrate the absence of
any genuine issues of material fact.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp v. Catrett, 477 U.S. 317,
322 (1986)). If the moving party points to portions of the record which demonstrate that
there appears to be no genuine issue of material fact as to claims or defenses at issue, the
burden of production shifts to the non-moving party. To meet its burden of production,
the non-moving party “may not rest upon the mere allegations contained in his complaint,
but he must set forth, by affidavits, exhibits or otherwise, specific facts showing that there
is a genuine issue for trial.” Fed. R. Civ. P. 56; see T.W. Electric Serv., Inc., 809 F.2d at
630 (internal citation omitted). Statements in a brief, unsupported by the record, cannot be
used to create an issue of fact. Barnes v. Independent Auto. Dealers, 64 F.3d 1389, 1396
n.3 (9th Cir. 1995).
Rule 56(c) requires the Court to enter summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 377
U.S. at 322. The existence of a scintilla of evidence in support of the non-moving party’s
position is insufficient. Rather, “there must be evidence on which the jury could
reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, 477 U.S. at 252.
To state a claim under § 1983, a plaintiff must allege a violation of rights protected
by the Constitution or created by federal statute proximately caused by conduct of a
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person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.
1991). To prevail on an Eighth Amendment claim regarding prison medical care, plaintiff
must show that the prison official’s “acts or omissions [were] sufficiently harmful to
evidence deliberate indifference to serious medical needs.” Hudson v. McMillian, 503
U.S. 1, 8 (1992) (citing Estelle v. Gamble, 429 U.S. 97, 103-04 (1976)). The Supreme
Court has opined that “[b]ecause 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.’” Id.
The Ninth Circuit has defined a “serious medical need” in the following ways:
failure to treat a prisoner's condition [that] could result in further
significant injury or the unnecessary and wanton infliction of pain; . .
. [t]he existence of an injury that a reasonable doctor or patient
would find important and worthy of comment or treatment; the
presence of a medical condition that significantly affects an
individual's daily activities; or the existence of chronic and
substantial pain.
McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds,
WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).
Deliberate indifference exists when an official knows of and disregards a serious
medical condition or when an official is “aware of facts from which the inference could
be drawn that a substantial risk of harm exists,” and actually draws such an inference.
Farmer v. Brennan, 511 U.S. 825, 838 (1994). Differences in judgment between an
inmate and prison medical personnel regarding appropriate medical diagnosis and
treatment are not enough to establish a deliberate indifference claim. See Sanchez v. Vild,
MEMORANDUM DECISION AND ORDER - 9

891 F.2d 240, 242 (9th Cir. 1989).1
Mere indifference, medical malpractice, or negligence will not support a cause of
action under the Eighth Amendment. Broughton v. Cutter Lab, 622 F.2d 458, 460 (9th
Cir. 1980). Nor does the Eighth Amendment provide a right to a specific treatment. See
Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997) (“[The plaintiff] is not entitled to
demand specific care. She is not entitled to the best care possible. She is entitled to
reasonable measures to meet a substantial risk of serious harm to her.”).
B.

Undisputed Facts

Inmates incarcerated at IMSI are provided medical care and treatment by contract
physicians and other medical providers who determine the appropriate care and treatment
based upon their education, training and experience, and after considering such factors as
the patient's presentation, clinical findings, and medical history. (Cooper Aff., Dkt. 120-3,
p.2.) Defendant Cooper is and has been employed by Corizon, Inc. and/or Prison Health
Services as a correctional medical specialist at IMSI and Idaho State Correctional
Institution since 1997. (Id.) As a correctional medical specialist, Defendant Cooper assists
the contract physicians and physician assistants by performing such duties as drawing

1

In contrast, deliberate indifference may be shown if prison medical staff “ignored outside expert
advice, relying solely on their own medical judgment for three years before eventually approving
surgery,” or, whether, after attempting a “medication-only course of treatment [that] may have been
medically acceptable for a certain period of time,” prison medical staff acted in a “medically
unacceptable” and “subjectively reckless” manner when they ignored “a ‘long term’ recommendation [for
surgery] for three years,” and ignored “‘emergency’ and ‘urgent’ requests for more than two years.” Snow
v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012) (denial of double hip replacement surgery to death–row
inmate whose hips had degenerated so badly he could not walk and was in constant, severe pain was a
jury question).
MEMORANDUM DECISION AND ORDER - 10

blood, distributing medication, and responding to emergencies. (Id.) Because pain
medication can be prescribed only by a treating physician or licensed mid-level provider
(such as a nurse practitioner), Defendant Cooper is not authorized to prescribe pain
medication to inmates. Instead, he can offer Ibuprofen or Tylenol to inmates who appear
to be in non-life threatening pain until they can be seen by a prison physician. (Id.)
Plaintiff’s prison medical records indicate that he has a history of receiving
ongoing treatment by prison medical and dental staff for a variety of dental problems. In
response to Plaintiff’s requests for dental treatment via Health Services Request (HSR)
Co-Pay Forms, Plaintiff’s treatment in prison has included cleanings, exams, and multiple
tooth extractions for broken or decayed teeth. (Dkts. 120-5, pp.14-7, 22-24; 120-6, pp. 118, 27; 120-7.)
On November 3, 2011, Plaintiff submitted an HSR form and stated “I need to see
the dentest I am in very serious and serve [sic] pain.” (Dkt. 120-5, p.8.) On the morning
of November 4, 2011, Defendant Cooper met with Plaintiff regarding his tooth pain. (Dkt.
120-3, p.3.) Defendant Cooper attempted to inform Plaintiff that he could offer him two
choices for his tooth pain – either Ibuprofen or Tylenol. (Id.) Defendant Cooper initially
offered Plaintiff Ibuprofen, but Plaintiff refused and argued with Defendant Cooper about
the type of pain medication he should be given. (Id.)2 Just before or while Defendant
2

Defendant Cooper states that after he offered Plaintiff Ibuprofen for his pain, Plaintiff “started
yelling at Defendant Cooper and demanding narcotic pain medication.” (Dkt. 120-3, p.3.) Plaintiff claims
that Defendant Cooper and his attorney have “fabricated a story” about the request for narcotics and that
Plaintiff never asked Defendant Cooper for narcotic pain medication. (Dkt. 125, pp.2-3.) This dispute
about whether Plaintiff demanded narcotic pain medication, however, is not a material fact and therefore
MEMORANDUM DECISION AND ORDER - 11

Cooper attempted to offer Tylenol as a second option, the correctional officer on duty
perceived that Plaintiff was going to initiate a physical confrontation with Defendant
Cooper, and the correctional officer acted immediately to restrain Plaintiff. Taken in a
light most favorable to Plaintiff, and in his own words, the following occurred:
At this time I stood up and took 1-step forward so I could tell the CMS
Cooper to check my medical records as I had been taken off all insaid
medications because of my failing kidney functions by April Wadson M.D.
the prison doctor. At this time before I could state my case to CMS Cooper
an IDOC prison guard lunged forward from over by the door and violently
grabed my leaft arm and flung me towards the door (sic).
(Plaintiff’s Statement of Undisputed Facts, Dkt. 126, p. 6.)
After this incident, the correctional officer took Plaintiff away. (Id.) The
correctional officer guard filed a Disciplinary Offense Report (DOR) regarding Plaintiff’s
disruptive behavior toward Defendant Cooper. (Dkt. 120-10, pp.12-13.) Six days later, a
Disciplinary Hearing Officer (DHO) conducted a hearing about the DOR, and Plaintiff
was permitted to make a statement. At the conclusion of the hearing, the DHO confirmed
Plaintiff’s offense of “disobedience to orders level 2” and he was sanctioned with several
days of detention, commissary restrictions and telephone restrictions. (Dkt. 120-10, pp.56.)
While Plaintiff disputes his intention in standing up and taking a step toward
Defendant Cooper, that dispute is not material. Rather, a third party – the correctional
officer whose duty it was to protect CMS Cooper from inmate violence – perceived a
will not be considered in the Court's analysis as to whether Defendant is entitled to judgment as a matter
of law.
MEMORANDUM DECISION AND ORDER - 12

threat and acted. Though he might have been mistaken as to Plaintiff’s intention, he did
not know Plaintiff’s intent, and, in the face of a perceived immediate threat, could not
wait to find out. Another third party – the disciplinary hearing officer – also agreed with
the correctional officer. Thus, it is undisputed that it was Plaintiff’s act in standing and
taking a step forward, and the correctional officer’s attempt to protect CMS Cooper, that
caused the medical appointment to end prematurely and abruptly.
C.

Analysis

Applying the standard of law to the undisputed facts in this case, the Court must
now determine whether Plaintiff has shown that Defendant Cooper was deliberately
indifferent to Plaintiff's serious medical needs. Defendant Cooper contends that no
genuine issue exists as to any material fact regarding the medical care he offered or
attempted to provide to Plaintiff on November 4, 2011. Defendant Cooper has provided
the Court with his Affidavit, Plaintiff's relevant medical and dental records, and the DOR
paperwork in support of the undisputed facts herein. (See Dkts. 120-3, 120-5 through 1208, 120-10.)
Plaintiff contends, however, that Defendant Cooper was deliberately indifferent to
Plaintiff's serious medical needs by “refus[ing] to give [Plaintiff] adequate noninsaid pain
medication on 11/4/2011, when Cooper knew in advance of the 11/4/2011 medical callout
that [Plaintiff] was in serious pain.” (Dkt. 125, p.3.) In his Statement of Undisputed Facts,
Plaintiff states that, before the correctional officer grabbed Plaintiff and took him away,
Defendant Cooper looked through Plaintiff’s medical file and saw that Plaintiff had,
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indeed, submitted several other HSR medical request forms. (Dkt. 126.) Plaintiff was in
the process of telling CMS Cooper that a doctor had taken him off insaid medications
because they were causing his kidneys to fail, when Plaintiff stood up, causing the
incident which, in turn, caused the medical appointment to end. (Dkt. 126, pp. 3-9.) While
CMS Cooper’s review of Plaintiff’s file may have provided notice to CMS Cooper that
Plaintiff had been complaining of pain for several days or weeks, Plaintiff’s physical
actions caused the end of the appointment, depriving CMS Cooper of an opportunity to
evaluate this information. Indeed, Defendant Cooper states in his Affidavit that “had
[Plaintiff] acted in an appropriate manner and not been taken away by security, I would
have had the opportunity to fully discuss the options available to [Plaintiff] for over-thecounter medications and/or further evaluation by a physician or dentist.” (Dkt. 120-3,
p.4.) Therefore, it is clear that Plaintiff caused the lack of any further medical diagnosis,
not the deliberate indifference of CMS Cooper.
An essential element of a § 1983 case is that the plaintiff show that the defendants’
actions caused the deprivation of a constitutional right. 42 U.S.C. § 1983; Arnold v.
International Business Machines Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). Because
Plaintiff has brought forward insufficient facts upon which a jury could find that the
failure to provide pain medication was the result of Defendant Cooper’s deliberate
indifference rather than Plaintiff’s actions, Defendant Cooper's Motion for Summary
Judgment will be granted.

MEMORANDUM DECISION AND ORDER - 14

CONCLUSION
From the time Defendant Cooper answered the Second Amended Complaint,
Plaintiff has been dilatory in litigating his Eighth Amendment claim against Defendant
Cooper, including the untimely filings of his own dispositive motion and responsive
pleading to Defendant Cooper's Motion for Summary Judgment. The Court reminds
Plaintiff of its ongoing busy docket and his obligation in this case (and any other pending
cases) to timely and efficiently comply with the scheduling deadlines set forth by the
Court. As discussed above, Plaintiff's Motion for Leave of Court to File Motion for
Summary Judgment will be denied for failing to establish good cause to modify the
existing pretrial scheduling order, and Plaintiff's related Motion for Summary Judgment
will also be denied as untimely and, alternatively, for lack of merit. Plaintiff's Motion in
Opposition of Defendant Bruce Cooper's Motion for Summary Judgment, although filed
12 days late, will be granted to the extent the Court considers it Plaintiff's responsive
pleading to Defendant's Motion for Summary Judgment. Finally, Defendant Bruce
Cooper's Motion for Summary Judgment will be granted and all claims against Defendant
Cooper will be dismissed with prejudice. No further claims remain; therefore, a judgment
closing this entire case will be entered.

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ORDER
IT IS ORDERED:
1.

Defendant Bruce Cooper's Motion for Summary Judgment (Dkt. 120) is
GRANTED. All claims against Defendant Cooper are hereby dismissed
with prejudice.

2.

Plaintiff's Motion for Leave of Court to File Motion for Summary Judgment
(Dkt. 123) is DENIED.

3.

Plaintiff Michael T. Hayes' Motion for Summary Judgment (Dkt. 124) is
DENIED as untimely, and, alternatively, as meritless.

4.

Plaintiff's Motion in Opposition of Defendant Bruce Cooper's Motion for
Summary Judgment (Dkt. 125) is GRANTED.

DATED: August 27, 2013

Honorable Edward J. Lodge
U. S. District Judge

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