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Harmon v. Royal

United States District Court, W.D. Oklahoma

March 8, 2018

RICO D. HARMON, Plaintiff,
v.
WARDEN TERRY ROYAL, et al., Defendants.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Rico D. Harmon, a state prisoner appearing pro se and in forma pauperis, filed a Second Amended Complaint[1] 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.

         I. Plaintiff's Claims

         Plaintiff explains that in April 2017, there was an “altercation”[2] 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.

         II. Screening

         Because 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).

         Mirroring 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. 2010).

         III. Analysis

         A. The Alleged Due Process Violation

         As 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.

         It is 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).

         Here, 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) (“Plaintiff ...


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