Unpublished Dispositioncharles Elton Newson, Plaintiff-appellant, v. L. Sandborn; Janes C. Yarborough; Robert Brown, Jr.,defendants-appellees, 900 F.2d 260 (6th Cir. 1990)

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs of the plaintiff and the record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Plaintiff Newson, a Michigan inmate, filed a civil rights action under 42 U.S.C. § 1983 against three corrections officers. Newson sought monetary and injunctive relief in connection with an alleged eighth amendment violation, that is, the improper denial of restroom privileges. The district court dismissed the complaint without prejudice as to defendant Sandborn; the court entered summary judgment for defendants Yarborough and Brown. Plaintiff Newson has filed briefs in his own behalf. Defendants have not briefed the issues.

The summary judgment for Yarborough and Brown is supported by the record. These two defendants, regardless of Newson's characterization of their role in the underlying incident, were involved only as prison supervisors and not participants. A civil rights action under 42 U.S.C. § 1983 cannot be premised on respondeat superior liability. Birrell v. Brown, 867 F.2d 956, 959 (6th Cir. 1989).

The dismissal of Sandborn, for want of personal service, must be vacated. The Michigan Attorney General answered for all three defendants and did not raise insufficiency of process as a defense. The defense was thus waived. Fed. R. Civ. P. 12(h) (1).

Accordingly, the dismissal of defendant Sandborn is vacated and remanded for further proceedings. The summary judgment for Yarborough and Brown is affirmed. Rules 9(b) (5) and (6), Rules of the Sixth Circuit.