UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GREGORY COOK #499719, No. 09-10892

Plaintiff, District Judge Denise Page Hood

v. Magistrate Judge R. Steven Whalen

PATRICIA CARUSO, et al.,

Defendants. /

 REPORT AND RECOMMENDATION

 Before this Court is Defendants Patricia Caruso and Dennis Straub’s Motion for Summary

Judgment [Docket #26], filed June 2, 2010 which has been referred for a Report and

Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, I

recommend that the motion be GRANTED, dismissing all claims against these Defendants WITH

PREJUDICE.

I. PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff, a Michigan State Department of Corrections (“MDOC”) prisoner currently housed

at the Earnest C. Brooks Correctional Facility, originally filed suit on March 10, 2009 alleging

violations of 42 U.S.C. §1983, the Americans with Disability Act (“ADA”) and the Rehabilitation

Act (“RA”). On May 27, 2009, the case was dismissed without prejudice for failure to provide the

Court with four copies of his complaint to be served on the named Defendants. Docket #6. The

complaint was reinstated on March 12, 2010. Docket #11. 

Plaintiff makes the following factual allegations. A diagnosed epileptic, he was issued a

“Special Accommodation Notice” (“Accommodation”) at the time he began his incarceration in

December, 2006. Amended Complaint at ¶¶14-15. According to Plaintiff, the Accommodation

entitled him to 1) first floor housing 2) a bottom bunk assignment and 3) work restrictions of “no

height and no driving/dangerous machinery.” Id. at ¶16. Upon his January, 2007 transfer to the

Mound Correctional Facility (“NRF”), Plaintiff was assigned a second floor cell with a top bunk. 
Id. at ¶17-18. He alleges that he notified Defendant Lane, Assistant Resident Unit Supervisor

(“ARUM”) that he was entitled to a bottom bunk, but that Lane failed take any corrective action. 

Id. at ¶19. He states that he also informed Defendant Truly, Resident Unit Manager (“RUM”),

Defendant Steward, Assistant Deputy Warden of Housing (“ADW”), and Defendant Nobles, a

deputy warden that his top bunk assignment was non-compliant with the Accommodation, but that

these individuals failed to act on his behalf. Id. at ¶20. 

 Plaintiff alleges that verbal and written requests for a bunk change made to health care staff

members Defendant Gladney and Defendant Susan Kristensen were unavailing despite the fact that

the Accommodation remained in effect until December 21, 2007. Id. at ¶¶20-21. He alleges that

on March 20, 2007 “while in his assigned top bunk,” he fell to the floor as a result of a grand mal

seizure, resulting in a back and head injury. Id. at ¶22. He alleges that during the episode, health

care staff did not respond or examine him. Id. He was transported to Detroit Receiving Hospital

for observation. Id. at ¶23. 

Plaintiff alleges that Defendant Caruso and Straub’s failure “to make policy or take

corrective action” violated the Eighth Amendment, the Fourteenth Amendment, the ADA, and the

RA. Id. at ¶24. He requests monetary damages.

 II. STANDARD OF REVIEW

 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). To prevail on a motion for summary judgment, the non-moving party

must show sufficient evidence to create a genuine issue of material fact. Klepper v. First American

Bank, 916 F.2d 337, 341-42 (6th Cir. 1990). Drawing all reasonable inferences in favor of the nonmoving party, the Court must determine “whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must prevail as a matter

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of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202

(1986). Entry of summary judgment is appropriate “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.” Celetox Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.

2548, 91 L.Ed.2d 265 (1986). When the “record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party,” there is no genuine issue of material fact, and summary

judgment is appropriate. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000).

Once the moving party in a summary judgment motion identifies portions of the record

which demonstrate the absence of a genuine dispute over material facts, the opposing party may not

then “rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact,”

but must make an affirmative evidentiary showing to defeat the motion. Street v. J.C. Bradford &

Co., 886 F.2d 1472, 1479 (6th Cir. 1989). The non-moving party must identify specific facts in

affidavits, depositions or other factual material showing “evidence on which the jury could

reasonably find for the plaintiff.” Anderson, 477 U.S. at 252 (emphasis added). If, after sufficient

opportunity for discovery, the non-moving party cannot meet that burden, summary judgment is

clearly proper. Celotex Corp., 477 U.S. at 322-23.

III. ANALYSIS

Plaintiff’s Failure to Show Either Personal Involvement Mandates the Dismissal of All

Claims Against These Defendants

 Defendants Caruso and Straub, the MDOC Director and Deputy Director respectively, argue

that “Plaintiff has not sufficiently alleged personal involvement” by either of them to impose

liability under 42 U.S.C. §1983.1

 In fact, Plaintiff does not make factual allegations that Defendants

1

Although not addressed in Defendants’ Brief, Plaintiff's ADA and RA claims against 

present Defendants are subject to dismissal. “[N]either the ADA nor RA allows suits against

government officials in their individual capacities.” Tanney v. Boles, 400 F.Supp.2d 1027, 1044

(E.D.Mich.2005) (Roberts, J.). “We have held repeatedly that the ADA does not permit public

employees or supervisors to be sued in their individual capacities.” Williams v. McLemore WL

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Caruso or Straub were personally involved in the denial of his requests for a lower bunk, but instead

faults them for failing to prevent the alleged constitutional violations of their subordinates. 

Amended Complaint at ¶24. Both Defendants have provided affidavits stating that they were

unaware of Plaintiff’s allegations until served with the complaint. Docket #26-2, Exhibit A, ¶9;

Docket #26-3, Exhibit B, ¶6. 

The allegation of deliberate indifference resulting in physical injury, properly analyzed under

the Eighth Amendment, cannot be sustained against these Defendants. The Supreme Court has

specifically held that in a §1983 action, liability cannot be based on a theory of respondeat superior,

or mere supervisory liability. Monell v. Department of Social Services of City of New York, 436 U.S.

658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). While the complaint alleges that these Defendants

“fail[ed] to make policy” that would have prevented his injury, he does not state how MDOC policy

caused his accident. Amended Complaint at ¶24. To the contrary, he attributes his injury to the NRF

staff’s non-compliance with MDOC policy rather than the policy itself. Id. at ¶¶17-20. Because

Plaintiff cannot show that Caruso or Straub impliedly authorized, approved or knowingly acquiesced

in the allegedly unconstitutional conduct, these claims should be dismissed. Bellamy v. Bradley, 729

F.2d 416, 421 (6th Cir. 1984). 

In an attempt to defeat the Defendants’ “no personal involvement” position, Plaintiff’s

Response is accompanied by letters from Plaintiff, purportedly sent to Caruso and Straub in the

month preceding his accident, informing both Defendants that he had been improperly assigned a

top bunk. Response, Exhibit A. Plaintiff also included unnotarized “declarations” by his girlfriend

and mother, stating that in the month preceding the accident, they too, contacted Caruso and Straub’s

1748146, *6 (6th Cir.2007) ( citing Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 808 n. 1

(6th Cir.1999); Wathen v. Gen. Elec. Co., 115 F.3d 400, 404-05 n. 6 (6th Cir.1997); Walker v. v.

Snyder, 213 F.3d 344, 346 (7th Cir.2000). 

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offices.Id., Exhibit B.2

 The Court cannot consider either the letters or “declarations.” “[A]n

unnotarized statement . . . . constitutes nothing more than unsworn hearsay that may not be

considered on a motion for summary judgment.” Wright v. Swiatek, 2006 WL 1880060, *5 

(M.D.Tenn.2006)(citing Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996)). Even assuming the truth

of the declarations that Plaintiff, his girlfriend, and mother all contacted Caruso and Straub’s offices,

none of the statements show that either Defendant was made “personally aware” of the top bunk

assignment. 

 Further, because Plaintiff has not alleged that he was “denied equal protection of the law

based upon an unjustifiable standard such as race, religion, or other arbitrary classification,” his

Fourteenth Amendment equal protection claims against these Defendants are also dismissible as a

matter of law. Bass v. Robinson, 167 F.3d 1041, 1050 (6th Cir. 1999). Allegations that MDOC

employees were neglectful in failing to provide him with a lower bunk, (absent a claim that their

nonfeasance was motivated by suspect class animus) are insufficient to sustain this claim. Bass, at

1050. As such Plaintiff’s failure to show a constitutional violation by either of present Defendants

also entitles them qualified immunity. Pearson v. Callahan, --- U.S. ----, 129 S.Ct. 808, 818, 172

L.Ed.2d 565 (2009)(citing Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). 

IV. CONCLUSION

 For these reasons, I recommend that Defendants’ Motion for Summary Judgment [Docket

#34] be GRANTED, dismissing all claims against these Defendants WITH PREJUDICE. 

 Any objections to this Report and Recommendation must be filed within fourteen (14) days

of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR 72.1(d)(2). 

Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn,

474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of HHS, 932 F.2d 505

2

Notably, the Amended Complaint is absent any allegation that either Caruso and Straub

were personally aware that Plaintiff had been mis-assigned to a top bunk. 

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(6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which

raise some issues but fail to raise others with specificity will not preserve all the objections a party

might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th

Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). 

Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate

Judge.

Within fourteen (14) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than twenty (20) pages in length

unless by motion and order such page limit is extended by the court. The response shall address

specifically, and in the same order raised, each issue contained within the objections.

s/R. Steven Whalen

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: December 20, 2010

______________________________________________________________________

CERTIFICATE OF SERVICE

I hereby certify on December 20, 2010 that I electronically filed the foregoing paper

with the Clerk of the Court sending notification of such filing to all counsel registered

electronically. I hereby certify that a copy of this paper was mailed to the following nonregistered ECF participants on December 20, 2010: Gregory Cook.

s/Michael E. Lang 

Deputy Clerk to 

Magistrate Judge R. Steven Whalen

(313) 234-5217

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