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Harris v. Miller

United States District Court, E.D. Michigan, Southern Division

January 16, 2018

ISAAC D. HARRIS, Plaintiff,
v.
FNU MILLER, and JAMES ZUMMER, Defendants.

          District Judge Nancy G Edmunds

          REPORT AND RECOMMENDATION

          MONA K. MAJZOUB UNITED STATES MAGISTRATE JUDGE

         Plaintiff Isaac D. Harris filed this pro se civil rights case on February 7, 2017. (Docket no. 1.) At the time of the subject matter of this case, Plaintiff was in the custody of the Michigan Department of Corrections (“MDOC”) at Saginaw Correctional Facility. Plaintiff contends that Defendant Miller and Defendant Zummer violated his “Due Process rights to exercise his First Amendment rights to file[] a grievance” by “transfer[ring] him to discipline prison.”

         This matter is presently before the Court on Defendants' Motion for Dismissal and/or Summary Judgment. (Docket no. 9.) Defendants assert that they are entitled to either absolute or qualified immunity, and that Plaintiff fails to plead facts that would support a First Amendment retaliation claim. Plaintiff filed a response in opposition to Defendants' motion. (Docket no. 14.) The Court has reviewed the pleadings and determined that the motion will be resolved without oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2).

         I. RECOMMENDATION

         For the reasons that follow, the undersigned recommends that Defendants' Motion to Dismiss be GRANTED and that this matter be dismissed in its entirety.

         II. REPORT

         A. Background

         This matter arises from Plaintiff's transfer from Saginaw Correctional Facility to Kinross Correctional Facility, allegedly implemented in retaliation for Plaintiff's filing of grievances. (Docket no. 1, pp. 3, 5.) Defendant Gary Miller is a Lieutenant at Saginaw Correctional Facility. (Docket no. 9-3.) Defendant James Zummer is a Resident Unit Manager at Saginaw Correctional Facility. (Docket no. 9-2.)

         On June 29, 2016, Plaintiff was scheduled to work as a dish washer in the prison “chow hall.” (Docket no. 9-3, p. 8.) During the shift, a supervisor observed that Plaintiff was “nowhere to be found, ” and Plaintiff was charged with a Class II misconduct for being “Out of Place.” (Id.) Plaintiff disputed the charge, and on July 6, 2016, Plaintiff appeared for a misconduct hearing at which Defendant Miller was the hearing officer. (Id. at 7.) Defendant Miller reviewed security camera footage, which showed that Plaintiff “never left the building” but was “sitting in the chow hall” at a table with other inmates. (Id.) Consequently, Defendant Miller determined that Plaintiff was “[g]uilty of being absent from where one was required, but in the same building.” (Id.)

         Although there is no significant dispute regarding the above facts, the parties diverge regarding the outcome of the July 6, 2016 hearing. Plaintiff asserts that “Defendant Miller reduced the Class 2 ‘Out of Place' to a Class 3 ‘Temp. Out of Place.'” (Docket no. 1, p. 4.) In contrast, Defendants contend that Plaintiff “was found ‘Guilty' of Charge 1” which “was described by CMIS Code 436, which is synonymous with a Class II misconduct.” (Docket no. 9-3, p. 4.)

         On July 19, 2016, Plaintiff filed a grievance alleging that Defendant Miller “denied [Plaintiff] a fair hearing according to the MDOC handbook” by finding Plaintiff guilty of being “absent from were [sic] one is required” even though Plaintiff had not left the chow hall as stated in the misconduct report. (Docket no. 9-4, p. 17.) The grievance was rejected because “[d]ecisions made in minor misconduct hearings” are considered to be “non-grievable issues.” (Id.) The reviewer informed Plaintiff that the proper procedure is to “submit a Misconduct Appeal Form (CDJ-274) to appeal a Class II hearing.” (Id.) Plaintiff contends that after this grievance was filed, Defendant Miller threatened that “if [Plaintiff] kept up with the grievances, [Plaintiff] would be on the next snowland bus.” (Docket no. 1, p. 5.) On August 9, 2016, Plaintiff appealed the grievance to Step II, and reiterated his allegation that Defendant Miller deprived Plaintiff of due process. (Docket no. 9-4, p. 16.) That appeal was denied on August 17, 2016. (Id.)

         Plaintiff contends that on August 18, 2016, Defendant Zummer told Plaintiff that he had “a disliked person on [his] heels” and that writing grievances was an easy way to “get the boat to a different prison.” (Docket no. 1, p. 6.) In the early part of September 2016, Plaintiff was transferred from Saginaw Correctional Facility to Kinross Correctional Facility. (Docket no. 9, p. 9.) Plaintiff asserts that Defendant Zummer drafted the “Transfer Security Classification Screen, ” and “intentionally fabricat[ed]” this document by labeling the June 29, 2016 misconduct a Class II instead of the Class III violation that Plaintiff contends “resulted from the hearing.” (Docket no. 1, pp. 5-6.) According to Plaintiff, the inclusion of a Class II misconduct had the effect of “increasing [Plaintiff's] security level and points out of the level 1 range.” (Id. at 6.)

         On September 12, 2016, Plaintiff appealed his grievance to Step III, but was again denied on September 21, 2016. (Docket no. 9-4, p. 15.) Plaintiff ...


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