Carter #302542 et al v. Heyns et al
ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION 22 ; Defendants' motion for summary judgment 13 is granted as to Defendant Washington and denied in all other respects; Defendant Washington is dismissed from this case; Plaintiffs' Motion to Amend / Correct 24 is granted; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
WILLIAM JERMICHAEL CARTER
and JOSHUA LOPP
CASE NO. 1:16-CV-1279
HON. ROBERT J. JONKER
DANIEL HEYNS, et al.,
ORDER ADOPTING IN PART AND REJECTING IN PART REPORT
AND RECOMMENDATION AND GRANTING MOTION TO AMEND / CORRECT
The Court has reviewed Magistrate Judge Kent’s Report and Recommendation in this matter
(ECF No. 22), Plaintiffs’ Objections to the Report and Recommendation (ECF No. 23), Defendants’
Response (ECF No. 26) and Plaintiffs’ Reply. (ECF No. 29). Under the Federal Rules of Civil
Procedure, where, as here, a party has objected to portions of a Report and Recommendation, “[t]he
district judge . . . has a duty to reject the magistrate judge’s recommendation unless, on de novo
reconsideration, he or she finds it justified.” 12 WRIGHT, MILLER, & MARCUS, FEDERAL PRACTICE
AND PROCEDURE §
3070.2, at 381 (2d ed. 1997). Specifically, the Rules provide that:
[t]he district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge
FED R. CIV. P. 72(b)(3). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).
The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge; the
Report and Recommendation itself; and Plaintiff’s Objections.
The Magistrate Judge recommends granting Defendants’ motion for summary judgment as
to Defendant Washington and denying it in all other respects. The Magistrate Judge also
recommends sua sponte dismissing Defendant Finco for failure to state a claim on which relief can
be granted under 28 U.S.C. § 1915(e)(2)(B)(ii) and 42 U.S.C. § 1997e(c). (ECF No. 22,
PageID.161.) In their Objections, Plaintiffs concede Defendant Washington should be dismissed
from this action. Plaintiffs object, however, to the sua sponte dismissal of Defendant Finco.
Plaintiffs argue they should be allowed to cure the deficiency by amending their complaint to add
the following claims:
Plaintiff then submitted his request on the subject matter to Defendant Finco and
pointed out MDOC policy, PD-05.03.150 as the Prison policy supporting Plaintiffs
right to live out and practice his Divine God Centered Cultural Tenets free from
persecution while in Defendants’ custody inside prison.
Defendant, Thomas Finco, the Deputy Director of the MDOC, in charge of all
Correctional Facility Administrations, received Plaintiff’s request on November 12,
2014, requesting time and space to practice his Divine God Centered Cultural
Tenets, denied the request on the notion that the NOGE was not approved for
separate group services or activities, and although he had the authority to approve
this request he failed to do so, and forwarded his determination of denial to
Defendant Leach, who informed Plaintiff of the denial on November 26, 2014.
Thereafter, a second correspondence was sent to Defendant Finco on 01-22-15,
which was responded to by Defendant Leach, stating no further action would be
taken. See (Exhibits A and B).
(ECF No. 23, PageID.165; ECF No. 24, PageID.176).
Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “a party may amend
its pleading only with the opposing party’s written consent or the court’s leave.” FED. R. CIV. P.
15(a)(2). The rule also provides that a “court should freely give leave when justice so requires.”
Id. The latter mandate embodies “the principle that cases ‘should be tried on their merits rather than
the technicalities of the pleadings.’” Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986)
(per curiam) (quoting Tefft v. Seward, 689 F.2d 637, 639 (6th Cir. 1982)).
Defendants urge the Court to deny Plaintiffs’ motion to amend. They aver Plaintiffs’ motion
does not point to any personal involvement by Defendant Finco. (ECF Nos. 26-27.) It is true that
as a general matter, government officials may not be held liable for the unconstitutional conduct of
their subordinates under a theory of respondeat superior or vicarious liability. Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009); Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978);
Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). Rather a plaintiff must establish that the official
was personally involved, or that he otherwise encouraged or condoned the action of the offending
employees. Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir. 1995) (citing Rizzo v. Goode, 423
U.S. 362, 375-76 (1976), and Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)). The Court
concludes that Plaintiffs’ motion raises sufficient claims of Defendant Finco’s personal involvement
to survive scrutiny at this stage of review. While Defendants may ultimately be correct with regard
to this claim, such is not immediately apparent on this record.
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (ECF No. 22) is ADOPTED in part and REJECTED in part.
IT IS FURTHER ORDERED that:
Defendants’ motion for summary judgment (ECF No. 13) is GRANTED as to
Defendant Washington and DENIED in all other respects.
Defendant Washington is DISMISSED from this case.
Plaintiffs’ Motion to Amend / Correct (ECF No. 24) is GRANTED.
IT IS SO ORDERED.
September 25, 2017
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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