Fuqua v. Straub et al

Filing 46

ORDER Adopting 45 Report and Recommendation re: 23 Motion for Summary Judgment filed by Patricia Caruso, Kenneth MacEachern, James Armstrong, Cindi Curtin, K Werner, D Pratt, TM Birkett, E Balcarcel, Dennis Straub, Wendy Bulerski Signed by District Judge Denise Page Hood. (LHac)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ALAN FUQUA, Plaintiff, v. Case No. 08-12956 Judge Denise Page Hood Magistrate Judge Steven D. Pepe

DENNIS STRAUB, et al. Defendants. / ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION This matter is before the Court on Magistrate Judge Steven D. Pepe's Report and Recommendation [Docket No. 45, filed June 30, 2009]. Neither party has filed an objection and the time to do has expired. For the reasons set forth below, the Court ACCEPTS and ADOPTS Magistrate Judge Pepe's Report and Recommendation. Magistrate Judge Pepe properly concluded that all but one of the Plaintiff's claims were not properly exhausted, and therefore subject to dismissal. Woodford v. Ngo, 548 U.S. 81, 95, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006). The Court also agrees that the remaining due process claim was properly dismissed because change in a prisoner's security classification, with nothing more, is not the type of atypical and significant deprivation in which an inmate might have a liberty interest. See Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995); Mackey v. Dyke, 111 F.3d 460, 462-63 (6th Cir. 1997); Harbin-Bey v. Rutter, 420 F.3d 571, 576 (6th Cir. 2005). The Court has had an opportunity to review this matter and finds that the Magistrate Judge reached the correct conclusion for the proper reasons. Accordingly,

IT IS ORDERED that the Report and Recommendation of Magistrate Judge Steven D. Pepe [Docket No. 45, filed June 30, 2009] is ACCEPTED and ADOPTED as this Court's findings and conclusions of law.

S/Denise Page Hood Denise Page Hood United States District Judge Dated: August 19, 2009 I hereby certify that a copy of the foregoing document was served upon counsel of record and Alan Fuqua, Reg. No. 191993, Saginaw Correctional Facility, 9625 Pierce Rd., Freeland, MI 48623 on August 19, 2009, by electronic and/or ordinary mail. S/William F. Lewis Case Manager

2