# Heyward v. Cooper

> District Court, N.D. Ohio · September 27, 2021

URL: https://www.frixlaw.com/law-library/cases/10369975

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** September 27, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10369975

## How later opinions describe it (automated extraction)

- rejecting plaintiff’s retaliation claim because plaintiff lacked a meritorious underlying claim

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Lyle M. Heyward, Case No. 3:16-cv-2774

Plaintiff,

v. MEMORANDUM OPINION
AND ORDER

Heather Cooper, et al.,

Defendants.

I. INTRODUCTION
Defendants Heather Cooper and Brian Townsend and Defendants Joanna Factor, Sheila
McNamara, John Neth, Cori Smith, and Anthony Streeter (the “ODRC Defendants”)1,2 have filed
motions for summary judgment on all remaining claims asserted by Plaintiff Lyle Heyward. (Doc.
Nos. 73 and 75). Heyward, through appointed counsel, filed a brief in opposition to both motions.
(Doc. No. 82). The ODRC Defendants and Cooper and Townsend filed reply briefs in support of
their motions. (Doc. Nos. 83 and 84). For the reasons stated below, I grant both motions.

1 Kandis Simpson has not yet been served, (Doc. No. 42), and therefore Simpson is not a party to
either motion. Plaintiff has been on notice since at least March 2019, however, that service had not
been completed on Defendant Simpson. The deadline for Plaintiff to complete service on Simpson
has long passed. See Fed. R. Civ. P. 4(m). Therefore, I dismiss Heyward’s claims against Simpson
without prejudice.

2 Another ODRC employee named as a defendant, Sylvia Moseley, previously was dismissed from
this litigation. (Doc. No. 57).
II. BACKGROUND
Cooper and Townsend and the ODRC Defendants previously filed motions for judgment
on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. In ruling upon
those motions, I summarized Heyward’s allegations:
Heyward worked as a line server in the prisoners’ cafeteria at the Allen Oakwood
Correctional Institution. The Aramark Corporation contracts with the Ohio
Department of Rehabilitation and Correction (“ODRC”) to provide food service
operations at Allen Oakwood, among other things. Heyward claims he was removed
from his position after he filed a grievance concerning an incident on December 20,
2015, in which Cooper allegedly yelled and cursed at him and other inmates working
in the cafeteria. (Doc. No. 4 at 2-3). Heyward asserts this grievance led to a
conspiracy in which Cooper and Townsend, both Aramark employees, engaged the
assistance of numerous prison staff members and supervisors to file false conduct
reports against Heyward and to increase his security classification as a way to justify
Heyward’s removal from the line server position. (Doc. No. 4 at 3-4).
He alleges that, a few days after he gave Townsend a copy of his grievance
concerning Cooper’s behavior, Townsend presented him with an inmate evaluation
report that accused Heyward of cursing at Cooper and helping other inmates file out
complaints against Aramark. Heyward alleges Townsend told him “Heyward, you’re
fired . . . you know what I’ve said about complaints.” (Doc. No. 4 at 3). The report
listed a Lieutenant Ward as a witness, but Heyward asserts Ward informed his
supervisors that he had not witnessed any of the conduct alleged in the report. (Doc.
No. 4 at 3).
Heyward then filed grievances concerning the inmate evaluation report – which
Heyward alleges constitutes the falsification of official records – because that report
would have “a deleterious effect” on his parole eligibility and institutional
classification. (Doc. No. 4 at 4). He alleges the “Unit Management
Chief/Administrator, Ms. C. Ester,” and the Deputy Warden of Operations, Cori
Smith, failed to provide him with due process as required by ODRC policies, failed
to respond to the grievances Heyward submitted, and then, along with Factor,
attempted to cover up what had occurred when they lied by promising they would
reverse Heyward’s reclassification. (Doc. No. 4 at 4).
Heyward claims Smith began retaliating against him when he continued to pursue his
administrative remedies, by “fabricating fantastically false claims that Plaintiff posed
some unknown and unstated/[unspecified] security threat in combination with a
phantom Rules Infraction Board (RIB) record.” (Doc. No. 4 at 4).
He also alleges the retaliation did not stop there. Heyward states Simpson, an officer
in his cell block, fabricated a conduct report claiming Heyward had weapons in his
cell and had threatened Simpson. (Doc. No. 4 at 4). Heyward claims this conduct
report was thrown out after video from the time frame allegedly in question showed
he was not in his cell block when Simpson claimed he threatened her. (Doc. No. 4
at 4). Heyward claims Simpson persuaded Neth and Streeter to assault Heyward
under the guise of a cell search, and the Major at Allen Oakwood, C. Bendross,
“refused to acknowledge the incident even happened” because Simpson is his niece.
(Doc. No. 4 at 4-5). Heyward alleges his continued oral and written complaints led
only to further retaliation, including a retaliatory “strip-search and cell shakedown
that resulted in [the] destruction of $2,237.92 worth of Plaintiff’s legitimately
[acquired] and possessed non-contraband personal property. . . . (Doc. No. 4 at 5).
Further, Heyward alleges that, on April 11, 2016, McNamara, the Inspector of
Institutional Services at Allen Oakwood, confronted him concerning his pending
grievances and told him “you’re going to regret it if you don’t drop these complaints,
Heyward.” (Doc. No. 4 at 5). Heyward repeatedly refused McNamara’s demands to
drop the grievances, and McNamara allegedly responded by confiscating Heyward’s
religious head covering, known as a kufi, despite the fact that Heyward had two
accommodation forms authorizing him to possess and wear the kufi. (Doc. No. 4 at
5-6).
On April 19, 2016, Heyward alleges he was informed by a hearing officer that
McNamara had filed a conduct report accusing Heyward of forging his
accommodation forms. (Doc. No. 4 at 6). Heyward asserts this report also was in
retaliation for his refusal to cease pursuing his administrative remedies, and that the
report was thrown out after he demonstrated his forms were authentic. (Doc. No. 4
at 6).
He asserts claims under 42 U.S.C. § 1983 for violation of his First, Fourth, and
Fourteenth Amendment rights, as well as the Religious Land Use & Institutionalized
Persons Act (“RLUIPA”), and requests compensatory and punitive damages. (Doc.
No. 4 at 1, 9).
(Doc. No. 57 at 2-4).
I denied Cooper and Townsend’s motion for judgment on the pleadings as to Heyward’s
First Amendment retaliation claim against them. (Id. at 5-7). I denied the ODRC Defendants’
motion as to Heyward’s retaliation claim against them and granted their motion as to Heyward’s
claims: (a) for civil conspiracy; (b) for violation of his religious free-exercise rights and due process
rights; and (c) against Moseley. (Id. at 5-11).
The parties then conducted discovery regarding Heyward’s claims, which included taking
Heyward’s deposition. Defendants now seek summary judgment on Heyward’s remaining First
Amendment retaliation claims.
III. STANDARD
Summary judgment is appropriate if the movant demonstrates there is no genuine dispute of
material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
The moving party bears the initial responsibility of “informing the district court of the basis for its
motion, and identifying those portions of [the record] . . . which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant

may meet this burden by demonstrating the absence of evidence supporting one or more essential
elements of the opposing party’s claim. Id. at 323-25.
Once the movant meets this burden, the opposing party “must set forth specific facts
showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986) (quoting Fed. R. Civ. P. 56(e)). Once the burden of production has so shifted, the party
opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations.
Rather, Rule 56(e) “requires the nonmoving party to go beyond the pleadings” and present some
type of evidentiary material in support of its position. Celotex, 477 U.S. at 324; see also Harris v.
General Motors Corp., 201 F.3d 800, 802 (6th Cir. 2000). Summary judgment must be entered “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, 477 U.S. at
322
All evidence must be viewed in the light most favorable to the nonmovant, White v. Baxter

Healthcare Corp., 533 F.3d 381, 390 (6th Cir. 2008), and all reasonable inferences are drawn in the
nonmovant’s favor. Rose v. State Farm Fire & Cas. Co., 766 F.3d 532, 535 (6th Cir. 2014). A factual
dispute is genuine if a reasonable jury could resolve the dispute and return a verdict in the
nonmovant’s favor. Anderson, 477 U.S. at 248. A disputed fact is material only if its resolution might
affect the outcome of the case under the governing substantive law. Rogers v. O’Donnell, 737 F.3d
1026, 1030 (6th Cir. 2013).
IV. ANALYSIS
The Constitution prohibits “[r]etaliation based upon a prisoner’s exercise of his or her
constitutional rights,” Smith v. Campbell, 250 F.3d 1032, 1036 (6th Cir. 2001), including the First
Amendment right to file meritorious grievances against prison officials on the inmate’s own behalf.

Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000). An inmate asserting a claim for unlawful
retaliation resulting from the exercise of the inmate’s First Amendment rights “must prove that (1)
he engaged in protected conduct, (2) the defendant took an adverse action that would deter a person
of ordinary firmness from continuing to engage in that conduct, and (3) the adverse action was taken
at least in part because of the exercise of the protected conduct.” Siggers-El v. Barlow, 412 F.3d 693,
699 (6th Cir. 2005) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 393 (6th Cir. 1999)).
Because I conclude Heyward has not set forth sufficient evidence to demonstrate a
reasonable jury could return a verdict in his favor, Defendants’ motions for summary judgment are
granted.
A. Cooper and Townsend
Cooper and Townsend assert Heyward’s grievances were frivolous, and thus do not
constitute protected conduct, because (1) Heyward filed the grievances “as retribution” for the way
Cooper spoke to inmates, and (2) inmates do not have a constitutional right to free from verbal

harassment. (Doc. No. 73 at 6). Further, they argue there is no causal connection between
Heyward’s grievances and the adverse actions Heyward alleges he suffered. (Id. at 12-16).
Heyward disagrees, arguing he filed the grievances because he believed Cooper’s behavior
represented a danger to herself and inmates, and that his removal from his job in the kitchen is
sufficient to deter a person of ordinary firmness from continuing to file grievances regarding the
Defendants’ conduct. (Doc. No. 82 at 12-14). He also “claims that this job dispute and the
grievances that were filed after it negatively impacted his opportunity for parole.” (Id. at 11).
I conclude Heyward fails to show there is a genuine dispute of material fact as to whether he
engaged in protected conduct. His December 25, 2015 Informal Complaint Resolution (“ICR”)
submission contains a lengthy list of alleged violations of the Constitution, the Ohio Revised Code,
the Ohio Administrative Code, and ODRC policies. (Doc. No. 73-3 at 1).

But his factual allegations boil down to a complaint regarding Cooper’s “aggressive tone and
abusive language,” contending she was being “highly disrespectful.” (Id. at 2). As he argues in
response to Cooper and Townsend’s motion for summary judgment, he filed his grievance because
“her attitude and way of dealing with inmates constituted a danger to her and to the safety of the
institution.” (Doc. No. 82 at 14). In short, Heyward asserted Cooper was speaking and acting in a
way which might cause or provoke one or more inmates to assault her.
While, for policy reasons, institutions no doubt would prefer staff members take a different
tack in their interactions with inmates, Heyward has not established Cooper actually violated any
institutional rules or that he was entitled to some form of relief due to the risk of a future altercation
between Cooper and other inmates. Further, as Cooper and Townsend note, (Doc. No. 73 at 7),
inmates do not have a constitutional right to be free from verbal abuse or harassment. See Ivey v.
Wilson, 832 F.2d 950, 955 (6th Cir. 1987). Heyward has not demonstrated his grievance had merit
and, therefore, he fails to show he engaged in protected conduct by filing the December 25, 2015

ICR. Herron, 203 F.3d at 415 (rejecting plaintiff’s retaliation claim because plaintiff lacked a
meritorious underlying claim).
For the same reasons, I also conclude Heyward’s December 31, 2015 ICR does not
constitute protected conduct. In that grievance, Heyward complained Townsend had not corrected
Cooper’s behavior or investigated Heyward’s allegations. (Doc. No. 73-4 at 1). Heyward fails to
show he had a right to the redress of his earlier meritless grievance.
Even when viewed in the light most favorable to Heyward, the record evidence does not
create a genuine dispute of material fact as to whether Heyward engaged in protected conduct. I
need not consider whether Heyward has adequately identified an adverse action taken by these
Defendants because, without evidence he engaged in protected conduct, Heyward cannot establish

any adverse action resulted from a retaliatory motive. Therefore, Cooper and Townsend are entitled
to summary judgment on Heyward’s First Amendment retaliation claim against them. See Ziegler v.
State of Michigan, 90 F. App’x 808, 810 (6th Cir. 2004).
B. The ODRC Defendants
The ODRC Defendants argue they also are entitled to summary judgment on Heyward’s
First Amendment retaliation claims against Defendants Factor, Smith, Neth, Streeter, and
McNamara. (Doc. No. 75 at 12-19).
The ODRC Defendants assert the record does not contain any evidence that Factor and
Smith retaliated against Heyward for engaging in protected conduct. (Doc. No. 75 at 12-13; Doc.
No. 83 at 4-5). Heyward claims Factor lied about Heyward’s institutional behavior record in denying
his appeal of his removal from his job in the kitchen. (Doc. No. 82 at 19). Heyward asserts Factor
did so in retaliation for Heyward filing grievances. (Id.).
Heyward’s arguments fall short. I already have concluded the grievances Heyward filed

against Cooper and Townsend do not constitute protected conduct and Heyward does not point to
any other grievances or informal complaints which might constitute protected conduct for the
purpose of his claim against Factor.
Heyward’s claim against Smith fails for the same reason. Heyward argues only that Smith
“implicitly authoriz[ed or] acquiesc[ed in] the unconstitutional action of subordinates.” (Doc. No.
82 at 20). He has not produced any evidence of protected conduct, an underlying unconstitutional
action, or of an adverse action taken by Smith. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)
(“[A] supervisory official’s failure to supervise, control or train the offending individual is not
actionable unless the supervisor ‘either encouraged the specific incident of misconduct or in some
other way directly participated in it.’”) (quoting Hays v. Jefferson Cnty., Ky., 668 F.2d 869, 874 (6th Cir.
1982)).

Next, the ODRC Defendants argue they are entitled to summary judgment on Heyward’s
claims against Neth and Streeter. (Doc. No. 75 at 13-16). Heyward concedes “he cannot sustain his
claim against Streeter” but maintains that Neth assaulted him in retaliation for filing grievances
against another corrections officer (Simpson). (Doc. No. 82 at 20-21). Heyward does not point to
evidence as to when he filed these grievances or their content. (Id.)
The ODRC Defendants are entitled to summary judgment on Heyward’s claim against Neth
because Heyward has not identified sufficient evidence from which a reasonable jury could find in
his favor. In his deposition testimony, Heyward claims Neth came into his cell and assaulted him
because Cooper and Simpson told Neth to do so. (Doc. No. 72-1 at 66, 72-77). But Heyward has
not supported his allegations. See, e.g., Viergutz v. Lucent Tech., Inc., 375 F. App’x 482, 485 (6th Cir.
2010) (A party opposing summary judgment is “obligated . . . to ‘identify specific facts that can be
established by admissible evidence, which demonstrate a genuine issue for trial.’”) (quoting Amini v.
Oberlin Coll., 440 F.3d 350, 357 (6th Cir. 2006)).

He does not say that Cooper, Simpson, or Neth told him Cooper and Simpson sent Neth to
his cell, and Neth specifically denies threatening or assaulting Heyward for writing grievances against
Simpson. (Doc. No. 75-6 at 1). Heyward’s unsupported beliefs and hypotheses about what
motivated Neth’s alleged conduct are not sufficient to defeat the ODRC Defendants’ summary
judgment motion. Further, as I noted above, Heyward’s brief in opposition to the ODRC
Defendants’ summary judgment motion did not identify when he filed the grievances against
Simpson. He has not met his burden of establishing a genuine dispute of material fact as to his
claims against Neth.
Lastly, the ODRC Defendants contend they are entitled to summary judgment on Heyward’s
claims against McNamara. Heyward asserts McNamara violated his rights by improperly
confiscating his kufi and accusing him of writing a false conduct report (asserting Heyward had

forged religious accommodation forms) in retaliation for filing grievances. (Doc. No. 4 at 5-6). The
ODRC Defendants argue these claims are barred by the Leaman doctrine, because Heyward already
raised them in a lawsuit before the Ohio Court of Claims. See Leaman v. Ohio Dep’t of Mental
Retardation & Developmental Disabilities, 825 F.2d 946 (6th Cir. 1987) (en banc). The Leaman doctrine
provides that a plaintiff waives his right to pursue any cause of action, including claims under §
1983, if the plaintiff first pursued those causes of action in the Ohio Court of Claims. Id. at 952.
Heyward asserted a cause of action before the Ohio Court of Claims in which he alleged
McNamara “confiscated and destroyed his Gold Crescent & Star Pendant Kufi . . . [allegedly
because of] plaintiff’s forgery of a Religious Accommodation Approval form.” (Doc. No. 75-1 at 2).
Heyward concedes the Leaman doctrine precludes him from pursuing any other federal or state
causes of action arising out of this incident. (Doc. No. 82 at 19). Therefore, I conclude the ODRC
Defendants also are entitled to summary judgment on Heyward’s claims against McNamara.
V. CONCLUSION
For the reasons stated above, I grant the motions for summary judgment filed by
Defendants Cooper and Townsend, (Doc. No. 73), and Defendants Factor, McNamara, Neth,
Smith, and Streeter. (Doc. No. 75). Further, I also dismiss Heyward’s claims against Defendant
Simpson pursuant to Rule 4(m).
So Ordered.

s/ Jeffrey J. Helmick
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10369975. Public record. Not legal advice.