United States District Court, E.D. Michigan, Southern Division
ISAAC D. HARRIS, Plaintiff,
FNU MILLED, and JAMES ZUMMER, Defendants.
OPINION AND ORDER ACCEPTING AND ADOPTING THE
MAGISTRATE JUDGE'S JANUARY 16, 2018 REPORT AND
HONORABLE NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE.
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.
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.
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)).
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
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.)
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.").
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
second objection restates that his substantive due process
claim, meets the "shocks the conscience standard."
There are two categories of substantive due process rights.
The one Harris invokes 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.
"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 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.
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.
reasons thus states, the Court OVERRULES Harris's
objections, ADOPTS the Magistrate Judge's Report and
Recommendation, and DISMISSED the complaint.