                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 17a0435n.06

                                             No. 16-2706
                                                                                           FILED
                              UNITED STATES COURT OF APPEALS                          Jul 25, 2017
                                   FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk

CLARENCE W. HERNDON,                               )
                                                   )
       Plaintiff-Appellant,                        )
                                                   )
v.                                                 )
                                                         ON APPEAL FROM THE UNITED
                                                   )
                                                         STATES DISTRICT COURT FOR THE
DANIEL H. HEYNS, et al.,                           )
                                                         WESTERN DISTRICT OF MICHIGAN
                                                   )
       Defendants-Appellees.                       )
                                                   )
                                                   )



BEFORE:        COLE, Chief Judge; DAUGHTREY and DONALD, Circuit Judges.


       PER CURIAM. Clarence W. Herndon, a Michigan prisoner proceeding pro se, appeals the

grant of summary judgment to the defendants in this civil rights, filed under 42 U.S.C. § 1983, as

well as the district court’s denial of Herndon’s subsequent motion for reconsideration. We find no

basis upon which to overturn the district court’s judgment and affirm.


       In 2013, the Michigan Department of Corrections (MDOC) implemented the Interim Care

Program (ICP), establishing the unit where Herndon is housed at the Ionia Correctional Facility.

(Prior to this, Herndon was housed in administrative segregation as the result of his conviction for the

murder of a corrections officer.) The ICP is a general-population program intended for inmates

diagnosed with a major mental disorder and who, for reasons of safety, security, or other risk factors,

would otherwise be classified to segregation. Herndon’s risk factors include 42 major misconduct

violations, including possession of a weapon, possession of dangerous contraband, and the
No. 16-2706, Herndon v. Heyns


aforementioned murder. Herndon previously was convicted of assaulting a prison employee, among

other charges.


        Herndon alleges that being housed indefinitely in the ICP unit violates his Eighth

Amendment right to be free from cruel and unusual punishment, and he seeks release into the general

prison population.     Herndon contends that conditions in ICP are essentially equivalent to

administrative segregation or solitary confinement; that his long-term housing in the ICP amounts to

cruel and unusual punishment; and that he is being kept in the ICP unit as retribution for murdering a

corrections officer.


        Herndon named Willie Smith, the warden of his facility, and MDOC Director Daniel Heyns

as defendants. The defendants moved for summary judgment, arguing that Herndon had failed to

name Heyns in his original grievance and, thus, that any claim against Heyns had not been

administratively exhausted; that Herndon had failed to allege unconstitutional behavior on the part of

Smith; and that they were entitled to qualified immunity. Herndon sought to amend his complaint by

removing Heyns as a defendant, adding an additional inmate as a plaintiff, and adding additional

claims against Smith.     Over Herndon’s objections, the district court adopted the report and

recommendations of the magistrate judge; granted the defendants summary judgment; and denied

Herndon leave to amend, finding that the addition of a second pro se prisoner plaintiff would create

significant logistical and legal complications and that Herndon’s proposed amendments would not

the cure defects in his claims. Herndon moved for reconsideration, which the district court denied.


        We review the grant of summary judgment de novo. Mullins v. Cyranek, 805 F.3d 760, 764–

65 (6th Cir. 2015). We review both the denial of a motion to amend and the denial of a motion for

reconsideration for abuse of discretion. See Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir.

2003); Indah v. SEC, 661 F.3d 914, 924 (6th Cir. 2011).


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No. 16-2706, Herndon v. Heyns


Summary Judgment


       Before a prisoner may bring a lawsuit under section 1983, he must exhaust his administrative

remedies. See Porter v. Nussle, 534 U.S. 516 (2002). Herndon has failed to exhaust his remedies

against Heyns because he never named Heyns in the grievances that underlie his suit. As such,

Heyns is entitled to summary judgment.


       Herndon did exhaust his remedies against Smith in one grievance. However, Herndon’s

claim against Smith is flawed. First, the complaint does not allege any personal involvement by

Smith that would give rise to a claim that Smith knew of and disregarded an excessive risk to

Herndon’s health, as required to meet the subjective component of an Eighth Amendment claim. See

Farmer v. Brennan, 511 U.S. 825, 837 (1994); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)

(supervisor liability under section 1983 requires direct participation or encouragement by the

supervisor). Second, Herndon’s claim revolves around an alleged failure by Smith to implement

meaningful periodic review for the release of ICP inmates to the general population, but Herndon’s

grievance against Smith was based only his confinement in indefinite segregation, in general terms,

without any allegations of wrongdoing on Smith’s part. And, although Smith denied the grievance

on appeal, that denial alone cannot form the basis for a section 1983 lawsuit. Cf. Shehee v. Luttrell,

199 F.3d 294-95, 300 (6th Cir. 1999) (the denial of administrative grievance is not equivalent to

direct participation or encouragement). Thus, Smith is entitled to summary judgment.


Leave to Amend


       The district did not abuse its discretion by denying Herndon leave to amend. Herndon’s

request to join a second plaintiff is governed by Federal Rule of Civil Procedure 20, which sets out

conditions for permissive joinder of parties. As the district court noted, the addition of a second

plaintiff also proceeding pro se would create “logistical and legal complications” militating against

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No. 16-2706, Herndon v. Heyns


the filing of a joint amended complaint. A review of the reasoning of the magistrate judge, adopted

by the district court, reveals the extent of these complications, which include difficulties coordinating

between the plaintiffs, who each must sign every pleading; the transitory nature of the prison

population; the individualized questions of fact and law that underlie principles of exhaustion for

each plaintiff; issues with the payment of filing fees; and complications arising from in forma

pauperis status. Because the district court did not rely upon clearly erroneous findings of fact,

improperly apply the governing law, or use an erroneous legal standard, it did not abuse its discretion

when it denied Herndon leave to amend.


Motion for Reconsideration


        In order to prevail on his motion for reconsideration, Herndon must “demonstrate a palpable

defect” in the underlying proceeding and also “show that a different disposition of the case must

result from a correction thereof.” W.D. Mic. Local Civ. R. 7.4(a). The motion may not be used to

relitigate the underlying case. See id. However, in his motion for reconsideration, Herndon merely

reasserts his Eighth Amendment arguments. Because the granting of summary judgment to the

defendants on Herndon’s Eighth Amendment claims was proper, and the denial of leave to amend

does not show an abuse of discretion, we cannot say that the district court abused its discretion by

refusing to reconsider its previous judgment.

        Accordingly, we AFFIRM the judgment of the district court.




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