United States District Court, W.D. Oklahoma
RICO D. HARMON, Plaintiff,
WARDEN TERRY ROYAL, et al., Defendants.
REPORT AND RECOMMENDATION
BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE.
Rico D. Harmon, a state prisoner appearing pro se and in
forma pauperis, filed a Second Amended
Complaint under 42 U.S.C. § 1983 seeking
injunctive relief and monetary damages, [Doc. No. 15]. United
States District Judge Timothy D. DeGiusti has referred the
matter for initial proceedings consistent with 28 U.S.C.
§ 636(b)(1)(B) and (C). For the reasons set forth below,
it is recommended that the Court dismiss the Second Amended
Complaint on screening.
explains that in April 2017, there was an
“altercation” at North Fork Correctional Center
(NFCC) on Plaintiff's assigned unit. Sec. Amend. Compl.
at 9. Plaintiff claims that an investigation revealed that he
did not participate in the incident; nevertheless, officials
transferred Plaintiff from NFCC, a “low medium
security” facility, to Oklahoma State Penitentiary
(OSP), a “super-maximum prison, ” without a
hearing or other procedural due process protections.
Id. at 7, 9-10. Plaintiff notes that his
classification level stayed the same. See Id. at 10.
Plaintiff claims the transfer resulted in a lost
“liberty interest” and thus violated his due
process rights. Id. Plaintiff names four OSP
officials as defendants, in their official capacities, and
seeks a preliminary injunction returning him to NFCC. See
id., at 4-5, 7. Then, “[i]n closing, ”
Plaintiff asks for monetary damages “due to all [his]
belongings being misplaced.” Id. at 11.
Plaintiff is proceeding in forma pauperis and has sued
government officials, the Court has a duty to screen the
Second Amended Complaint and dismiss any portion that is
frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief against a
defendant immune from such relief. See 28 U.S.C.
§§ 1915A(a), (b), 1915(e)(2)(B).
a Fed.R.Civ.P. 12(b)(6) review, the Court must accept
Plaintiff's allegations as true and construe them, and
any reasonable inferences to be drawn from them, in the light
most favorable to him. See Mink v. Knox, 613 F.3d
995, 1000 (10th Cir. 2010). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see
also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir.
The Alleged Due Process Violation
discussed above, Plaintiff claims he was transferred from a
low medium security prison to a high security prison without
due process and without a classification change. The Court
should dismiss this claim without prejudice.
well settled law that an inmate has no justifiable
expectation that he will be incarcerated in any particular
prison. See Olim v. Wakinekona, 461 U.S. 238, 245
(1983). Indeed, the Supreme Court has held:
The Constitution does not require that the State have more
than one prison for convicted felons; nor does it guarantee
that the convicted prisoner will be placed in any particular
prison, if, as is likely, the State has more than one
correctional institution. The initial decision to assign the
convict to a particular institution is not subject to audit
under the Due Process Clause, although the degree of
confinement in one prison may be quite different from that in
another. The conviction has sufficiently extinguished the
defendant's liberty interest to empower the State to
confine him in any of its prisons.
Meachum v. Fano, 427 U.S. 215, 224 (1976) (emphasis
in original); see also Gowadia v. Stearns, 596
Fed.Appx. 667, 673 (10th Cir. 2014) (“‘[T]he
Constitution itself does not give rise to a liberty interest
in avoiding transfer to more adverse conditions of
confinement.'” (citation omitted)). So, the Due
Process Clause is implicated only if Plaintiff's transfer
to a higher security facility resulted in an atypical and
significant hardship in relation to the ordinary incidents of
prison life. See Sandin v. Conner, 515 U.S. 472, 484
(1995) (examining administrative segregation).
while Plaintiff complains about the restrictions at OSP in
relation to NFCC, he does not allege that these restrictions
are atypical or a significant hardship in relation to the
ordinary incidents of prison life. Indeed, Plaintiff alleges
only that his transfer, without a hearing, resulted in a lost
liberty interest. See Sec. Amend. Compl. at 10. As
such, his due process allegation fails to state a valid claim
for relief. See Hoover v. Keating, 59 Fed.Appx. 288,
293 (10th Cir. 2003) (finding no due process violation in
plaintiff's transfer to a higher security prison without
a hearing); see also Barlor v. Patton, No.
CIV-15-66-D, 2016 WL 1273246, at *4 (W.D. Okla. Mar. 31,
2016) (unpublished district court order) (“Barlor's
transfer to maximum security imprisonment does not
‘present the type of atypical, significant deprivation
in which' there might conceivably be a liberty
interest.”), aff'd, 681 Fed.Appx. 674
(10th Cir. 2017); Adams v. Sultmiller, No.
CIV-10-920-F, 2013 WL 1187675, at *5 (W.D. Okla. Feb. 19,
2013) (unpublished report and recommendation)