Harris v. Miller

Filing 21

MEMORANDUM OPINION and ORDER 18 REPORT AND RECOMMENDATION re 9 MOTION to Dismiss and/or Summary Judgment - Signed by District Judge Nancy G. Edmunds. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ISAAC D. HARRIS,
Case No. 17-10415
Plaintiff,
Honorable Nancy G. Edmunds
v.
FNU MILLED, and JAMES ZUMMER,
Defendants.
/

OPINION AND ORDER ACCEPTING AND ADOPTING THE MAGISTRATE JUDGE’S
JANUARY 16, 2018 REPORT AND RECOMMENDATION [18]
Plaintiff Isaac D. Harris, filed this pro se civil rights case against Defendants Fnu
Miller, a Lieutenant at Saginaw Correctional Facility, and James Zummer, a Resident Unit
Manager at Saginaw Correctional Facility (collectively "Defendants"). (Dkt. 1 & 2.) At the
time of the subject matter of this case, Harris was in the custody of the Michigan
Department of Corrections ("MDOC") at Saginaw Correctional Facility. Harris asserts that
Defendants violated his Constitutional rights whey they transferred him, from Saginaw
Correctional Facility to Kinross Correctional Facility in retaliation for Harris filing grievances.
Currently before the Court is Magistrate Judge Majzoub's Report and
Recommendation to grant Defendants' Motion to Dismiss Plaintiff's Complaint, for failing
to plead facts sufficient to state a claim upon which relief can be granted. (Dkt. 18.) Harris
has since lodged two objections to the Magistrate Judge's Recommendation, which the
Court considers here. (Dkt. 19.) For the reasons that follow, the Court OVERRULES
Harris's objections, ADOPTS the Report and Recommendation, and DISMISSES the case.

This Court performs a de novo review of those portions of Magistrate Judge Majzoub's
Report and Recommendation to which Harris has objected. 28 U.S.C. § 636(b). The Court
need not and does not perform a de novo review of the report's unobjected-to findings.
Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Moreover, an
objection that "does nothing more than state a disagreement with a magistrate [judge]’s
suggested resolution, or simply summarizes what has been presented before, is not an
'objection' as that term is used in this context.'" Aldrich v. Bock, 327 F. Supp. 2d. 743, 747
(E.D. Mich. 2004). Indeed, the purpose of an objection to a report and recommendation is
to provide the Court “with the opportunity to consider the specific contentions of the parties
and to correct any errors immediately.” Id. (quoting United States v. Walters, 638 F.2d 947,
949–50 (6th Cir.1981)).
Both of Harris's objections are summaries of what has been presented before.
Aldrich, 327 F.Supp. 2d. at 747. He disagrees with the magistrate judge's findings, but
does not provide specific errors or contentions that need correction. Notwithstanding
Harris's shortcomings in this regard, the Court considers the substance of both objections
in turn.
Harris's first objection is with Magistrate Judge Majzoub's conclusion that Harris's
transfer from one Level II prison, to another Level II prison, does not satisfy the "adverse
action" element of a retaliation claim. Even in reasserting the facts, Harris does not allege
his transfer from Saginaw Correctional Facility to Kinross Correctional Facility resulted in
an increase in his security level. Indeed, Defendants confirm both facilities are Level II
prisons and Harris himself states Defendant Zummer "transfer[ed] him to another level 2
prison." (Dkt. 19, at 2-3.)
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The Sixth Circuit holds, a transfer to another prison at the same security level is not
generally considered sufficiently adverse to deter a person of ordinary firmness from
exercising his First Amendment Rights. King v. Zamiara, 150 Fed.Appx. 485, 494-95 (6th
Cir. 2005); Smith v. Yarrow, 78 Fed. Appx. 529, 543 (6th Cir. 2003); Mandela v. Campbell,
1999 WL 357825, at *3 (6th Cir. 1999). Moreover, it is constitutionally permissible for
prison officials to transfer an inmate to another facility to give prison staff a respite from his
grievances. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001); Ward v. Dyke,
58 F.3d 271, 274-75 (6th Cir. 1995)("Prisoners do not have a constitutional right to be
incarcerated in any particular institution.").
Where there are aggravating factors, courts have been willing to find that a prison
transfer would deter a person of ordinary firmness from exercising his constitutional rights.
See Siggers-El v. Barlow, 412 F.3d 693, 704 (6th Cir. 2005). This limited exception applies
"where there are foreseeable consequences to the transfer that would inhibit the prisoner's
ability to access the courts." Hix v. Tennessee Dep't of Corr., 196 Fed.Appx. 350, 358 (6th
Cir. 2006)(citing Siggers-El, 412 F.3d at 704).

Where a prisoner alleges no such

foreseeable consequences, however, the claim of retaliatory transfer must fail.

Id.

Because Harris does not allege that the transfer interfered with his ongoing right to access
the courts, his transfer to Kinross Correctional Facility was not sufficiently adverse in this
case to maintain a claim of retaliation.
Harris's second objection restates that his substantive due process claim, meets the
"shocks the conscience standard." There are two categories of substantive due process

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rights. The one Harris invokes1 requires conduct by a state actor that, while not infringing
on a fundamental right, is so unjust that is "shocks the conscience." Mertik v. Blalock, 983
F.2d 1353, 1367 (6th Cir. 1993). Harris's objection appears to claim the Report and
Recommendation does not adequately address his substantive due process "shocks the
conscience" claim.
The "shocks the conscience" standard for substantive due process claims is difficult
to satisfy. To shock the conscience, is a fact specific inquiry and the conduct must be so
egregious that it can be said to be arbitrary in the constitutional sense. None of the facts
of Harris's claim come remotely close to meeting this incredibly high standard. This Court
acknowledges the Misconduct Hearing Report from Harris's July 6, 2016 hearing, states
in two places his Class II misconduct charge will be reduced to a Class III charge. The
Misconduct Hearing Report states (1) "charge reduced to a class III and guilty findings"
and (2) the section labeled "Misconduct Charge if Changed by Hearing Officer" reads
"Temp Out of place (Class III)". The Court recognizes that Harris is frustrated the change,
from Class II to Class I II, did not make it onto his Security Classification Management
Level Score assessment. Defendants explain however that the Misconduct Hearing Report
also states Harris "was found 'Guilty' of Charge 1" described "by CMIS CODE 436, which
is synonymous with a Class II misconduct." (Dkt. 9-3, at 4.) The Misconduct Hearing
Report is therefore contradictory. Furthermore Harris did file a grievance and appealed the
findings twice. Finally, although the change from Class II to Class III would have adjusted

1

The other substantive due process claim requires a plaintiff to assert denial of a right,
privilege, or immunity guaranteed by the Constitution or federal statute. Harris's second
objection however pertains specifically to the "shock the conscience" standard.
4

Harris's Management Level down to a Level I.

His overall determinative security

classification would have remained Level II because of the Confinement Level score.
The Court finds, neither the contradictory Misconduct Hearing Report, nor Harris's
transfer, manifestly or grossly unjust. Neither approach the standard of "shocks the
conscience". As Magistrate Judge Majzoub described in the Report and Recommendation,
Harris has failed to plead facts that would support a substantive due process claim.
For the reasons thus states, the Court OVERRULES Harris's objections, ADOPTS the
Magistrate Judge's Report and Recommendation, and DISMISSED the complaint.
SO ORDERED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: February 14, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of
record on February 14, 2018, by electronic and/or ordinary mail.
s/Lisa Bartlett
Case Manager

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