Cooper v. Heyns et al

Filing 33

ORDER Adopting Report and Recommendation Signed by District Judge Judith E. Levy. (KKra)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Ricardo Cooper,
Plaintiff,

Case No. 13-cv-14246
Hon. Judith E. Levy
Mag. Judge Paul Komives

v.
Daniel Heyns, et al.,
Defendants.
________________________________/

OPINION & ORDER ADOPTING REPORT &
RECOMMENDATION [28] AND GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [19]
This matter is currently before the Court on Magistrate Judge
Komives’ May 21, 2014 Report and Recommendation (Dkt. 28) and on
plaintiff’s motion and renewed motion for appointment of counsel. (Dkt.
29, 30). The Magistrate Judge recommends granting the motion for
summary judgment (Dkt. 19) filed by defendants Heyns, Rapelje, and
Winn.
I.

Background
Plaintiff Ricardo Cooper is a prisoner in the Saginaw Correctional

Facility in Freeland, Michigan. Defendant Daniel Heyns is Director of
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the Michigan Department of Corrections.

Defendants Lloyd Rapelje

and Obell Winn are, respectively, warden and deputy warden of the
Saginaw Correctional Facility.
Plainitff alleges that defendants terminated his employment with
the prison’s food service operation because of his complaints about
unsanitary practices. On October 4, 2013, plaintiff filed this pro se civil
rights complaint pursuant to 42 U.S.C. § 1983, alleging violation of his
Fourteenth Amendment due process and equal protection rights, and
retaliation in violation of his First Amendment rights.
II.

Defendants’ Motion for Summary Judgment [19]
On March 11, 2014, defendants Heyns, Rapelje, and Winn moved

for summary judgment.

(Dkt. 19).

All three defendants maintain

plaintiff failed to show their personal involvement in the activity
forming the basis of the complaint.

(Dkt. 19, Def.’s Mot. 14-16).

Defendants Heyns and Winn also contend that plaintiff failed to
exhaust administrative remedies before bringing this suit, as required
by 42 U.S.C. § 1997e(a). (Dkt. 19, Def.’s Mot. 9-10). Plaintiff concedes
in his response that summary judgment is warranted on both grounds.
(Dkt. 22).
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A. Supervisory Liability
Plaintiff’s claims against defendants Heyns, Rapelje, and Winn
are premised on supervisory liability. To succeed, plaintiff must show
that defendants “encouraged the specific incident of misconduct or in
some other way directly participated in it.” Bellamy v. Bradley, 729
F.2d 416, 421 (6th Cir. 1984). Failure to act on awareness of alleged
misconduct is insufficient to establish supervisory liability in a section
1983 claim. Poe v. Haydon, 853 F.2d 418, 429 (6th Cir. 1988). Nor does
denial of an administrative grievance establish liability under section
1983. Shehee v. Lutrell, 199 F.3d 295, 300 (6th Cir. 1999).
Here, defendant Heyns’ liability was premised upon his hiring the
persons who allegedly violated plaintiff’s civil rights. This constitutes
neither encouragement of nor direct participation in the alleged
misconduct. Defendant Rapelje’s liability was premised on his receiving
plaintiff’s concerns at a warden’s forum and later denying plaintiff’s
grievance. As stated above, neither a failure to act on awareness of
alleged misconduct nor denial of a grievance establishes supervisory
liability under section 1983. Defendant Winn’s liability is premised on

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his alleged role in the denial of plaintiff’s grievance. Again, this fails to
establish § 1983 liability.
B. Exhaustion of administrative remedies
As

detailed

in

the

Magistrate

Judge’s

Report

and

Recommendation, prisoners challenging their conditions of confinement
must exhaust administrative remedies before filing a federal civil rights
action.

See 42 U.S.C. § 1997e(a).

Plaintiff concedes his failure to

exhaust administrative remedies with respect to defendants Heyns and
Winn.
III. Conclusion
The Court has reviewed the Magistrate Judge’s Report and
Recommendation. Neither party has filed written objections, and the
time for doing so has expired. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. Pr.
72(b)(2).

Accordingly, the Court will adopt the Magistrate Judge’s

Report and Recommendation and grant the motion for summary
judgment filed by defendants Heyns, Rapelje, and Winn.
claims against defendants Szostak and Krafft remain.
For the reasons stated above, it is ORDERED that:

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Plaintiff’s

The Magistrate Judge’s Report & Recommendation is ADOPTED;
and Defendants’ motion for summary judgment is GRANTED.
IT IS SO ORDERED.

Dated: August 4, 2014
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court=s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on August 4, 2014.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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