NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0243n.06 No. 09-2191 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

CURTI S HARRI S, Plaintiff-Appellant,

v. PATRI CI A L . CARUSO, W arde n, et al., Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF MI CHI GAN

BEF ORE: BOG GS, ROGERS, and SUTTON, Circuit J udg es. ROGERS, Circuit J udg e. Curtis Harris, a Mic higa n prisoner, br oug ht this action under 42 U.S.C. § 1983, seeking damag es for his eig ht-y ear confine ment in administrative seg reg ation. 1 Har ris alleg es that his seg reg ation violated due proce ss and constituted delibera te indiffer ence . The district court g ranted summary judgme nt for the defe ndants. This was proper beca use Har ris

rec eived due proce ss throug hout his seg reg ation, and becau s e the district court appropr iately exercised its discre tion by deny ing disc overy

on Har ris’s Eig hth Amendment claim. I. I n J uly 2002, Har

ris assaulted a prison staff member at the Ry an Road Correc tional Fa cility

. As a result, Har

ris was place d in administrat i ve seg reg ation beca use he posed a “ser ious threa t to

Har ris initially s o u g ht injunctive relief in addition to damag es, but he was rele ased from 1 administrative seg reg ation on J anuar y 10, 2011, making injunctive relief moot.No. 09-2191

Harris v. Caruso, et al. [t h e] phy sical safety of ot hers.” R. 57-5. Be g inning in Aug ust 2002, the prison beg an bi-mont hly revie ws of Ha rris’s confine ment status. These revie ws wer e signe d by housing unit staff and a “Seg reg ation Supervisor,” and approve d by the “Secur ity Classification Commi ttee.” R. 57-5 at 1- 3. I n 2003, revie ws beca

me less fre quent, and occur red only monthly

. R. 57-5 at 4-13. Acc ording to these re views, Ha

rris committed another

“major misconduc t” on J uly 24, 2003. Id. I n J uly 2004, Har

ris was transfe rre d to I onia Correc tional Fa cility , wher e he rema i n ed i n administrative seg reg ation. Monthly revie ws of Har ris’s confine ment betwee n mid-2004 and mid2006 are not in the rec ord. The next revie w of Har ris’s confine ment that appears in the rec ord

occur red on April 27, 2006. R. 57-5 at 25. Signed by a “Security Classification Commi ttee,” the Warden, and the R eg ional Prison Administrator, this and subsequent monthly revie ws consider ed fac tors such as Har

ris’s “attitude and social adjustment,” and prior “misconducts.” Id

. The revie ws also contained evalua

tions conducte d by the Housing Unit Staff. Id. The April 27 revie w was signe d by Reg ional Prison Administrator J am es MacMe ekin, a defe ndant here , who signe d all subsequent re views. Id. Simi lar revie ws wer e conducte d for the duration of Har ris’s stay at I onia. On May 25, 2006, the prison staff ag ain reviewed Har ris’s seg reg ation. R. 57-5 at 27-28. The housing unit team

rec ommended that the prison rec lassify Har ris to g ener al population. Id. The Security Classification Commi ttee, howeve r, re co m m ended that Har ris rema in in administrative seg reg ation. Id. MacMe ekin approve d Har ris’s continued confine ment. Id. at 2 8. On Aug ust 17, 2006, Har ris committed an unidentified misconduct. Id. at 31. Notwithstanding this misconduct, on Aug ust 24,

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Harris v. Caruso, et al. 2006, the housing unit staf f ag ain rec ommended that Har ris be returne d to the g ener al population. Id. at 29. Ag ain, the Security Classification Commi ttee rec ommended that Har ris rema in in administrative seg reg ation. Id. at 30. Har ris was transfe rre d to Alg er Correc tional Fa cility (“L MF” ) on October 10, 2006, and was placed i n ad m inistrative seg reg ation. The L MF staff also conducte d periodic revie ws of Har ris’s seg reg ation. On a revie w dated October 16, 2006, the prison staff marke d Har ris’s “potential to honor the trust implicit in less re s t ri ct i v e confine ment” as “low.” Id. at 31. Har ris’s subsequent revie ws included intermittent positive mar k s i n are as such as “attitude with staff” or “per sonal h y g iene,” but consistently low rating s for potential to “honor the trust implicit in less restric tive confine ment.” Id. Har

ris incurre d a number of major misconducts afte r arr iving at L MF: threa tening behavior on November 10, 2006; assault and battery of a sta ff m em b er o n Dec ember 12, 2006; disobey ing a direc t order on Dec ember 18, 2006; threa tening behavior on J an u ary 14, 2007; destruction of proper

ty on Fe bruar

y 12, 2007; destruction of prison p ro p er t y o n April 3, 2007; threa tening behavior on April 4, 2007; threate ning be havior on Apr il 21, 2008; and an assault and battery of a staf f member on May 1, 2008. R. 37, Ex . A. Har ris alleg es t hat hi s health worsened while in administrative s eg reg ation. I n J une 2004, he suffere d a brain aneur

y sm, which was surg ically repa ired. R. 1, Complaint at 3. Additionally , he cla ims to suffer fr om a host of other c onditions, i ncluding hy perte nsion and ac id reflux. Id. Har ris sued Michig an Depa

rtment o f Correc tions Direc tor Patricia Caruso and Reg ional Prison Administrator J ames M acMe ekin for violations of the Due Process Clause, Eig hth

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Harris v. Caruso, et al. Amendment, First Amen d m en t , and Equal Protection Clause. Har ris also named as defe ndants a number of employ ees working at L MF (collec tively the “L MF defe ndants”). T h e district court g rante d summary

judgme nt in favor of

all defe ndants. First, with re g ard to the due pr ocess c laim, the district court held that Har ris had a liberty interest but had been aff orded the proce ss he was due. Second, the court reje cted Har ris’s Eig hth Amendment claim beca use Har ris failed to show that his medical issues wer e the result of confine ment in administrative seg reg ation. The court then reje cted Har ris’s First Amendment and Equal Protection claims, which are not raised on appea l. Finally , the district court held that supervisory liability under § 1983 did not extend to Caruso beca use she lacke d sufficie nt persona l involvement. Be cause Har ris could not establish a constitutional claim, the court held that the def

endants we re e ntitled to qualified immuni ty . Har ris timely appea led. II. Har ris presse s two claims on appea l: (1) that his confine ment in administrative seg reg ation violated his due-pr oces s rig hts; and (2) that the district court abused its discretion by deny ing discovery on Har

ris’s Eig hth Amendment claims befor e g ranting sum mary judgme nt. For the following rea sons, both of these ar g uments lack mer it. 1. Due P roce ss As a threshold matter, Har ris has a cog nizable liberty interest due to the aty pical duration of h i s administrative s eg reg ation. Be cause the Due Process Cl ause does not protec t ever y chang e in the conditions of confine ment, an inmate must es t ab l i s h his liberty interest by showing that his administrative seg reg atio n “i m p o s es aty pical and signific ant hardship on [hi m] in rela tion to the

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Harris v. Caruso, et al. ordinary incidents of prison life.” Sandin v. Conner , 515 U.S. 472, 484 (1995). The extent of the hardship is weig hed in light of the nature of the more-r estrictive confine ment and its duration. See Harden-B ey v. Rutter , 524 F.3d 789, 794 (6th Cir. 2008). Although this court has found at least one defe ndant did not have a liberty interest following a 30-month seg reg ation, Jones v. Bake r , 155 F.3d 810, 812 (6th Cir. 1998) , Har ris’s confine ment more than tripled that mark. I n the only case cited by the parties that involved seg reg ation of a simil ar durat i o n , ei gh t y ear s, the court found that a liberty interest was implicated. See Bean v. McQ uiggin , No. 2:07-cv-113, 2008 WL 4151351, at *5 (W.D. Mich. Sept. 2, 2008). Har ris’s seg reg ation was simil arly aty pical. No matter how much Har ris deser ved this isolation, the aty

pical duration cre ated a liberty interest that trig g ere d his rig ht
to due process. This alone does not mea n that Har ris wins. Where a liber

ty interest is shown, the due proce ss claim “is not complete unless and until the State fails to provide due proce ss.” Zinermon v. Burch , 494 U.S. 113, 126 (1990). Be fore the court can deter mine whether Har

ris rec eived due proce ss, it must first deter mine what proce ss is due by apply ing three fac tors set forth in Mathews v. Eldridge , 424 U.S. 319 (1976): First, the private interest that will be aff ecte d by the officia l a ction; se cond, the risk of an err oneous depriva tion of such interest throug h the proce dures used, and the probable value, if any , of additional or substitut e proce dural safe g uards; and finally , the Govern m en t ' s interest, including the function involved and the fiscal and administrative burdens that the additional or s u b s ti tu te p r o c e d u r a l require ment would entail. W ilkinson v. Austin , 545 U.S. 209, 224-25 (2005) (quoting Eldridge , 424 U.S. at 335). The Supreme Court has indicated that “[p] rison o ff i ci al s must eng ag e in some sort of periodic revie w of the confine ment of such inmates [i n administrative seg reg ation].” Hewitt v. Helms , 459 U.S. 460, 477 - 5 -No. 09-2191

Harris v. Caruso, et al.

n.9 (1983) ( abrogated on other grounds b y Sandin , 515 U.S. at 484). “This revie w will not

nece ssarily require that prison o ff icials permit the submissi on of any additional evidenc e or statements.” Id. Howeve r, the decisi o n t o co ntinue confine ment must be supported by “some evidenc e.” Superintendent v. Hill , 472 U.S. 445, 454 (1985). Th i s re q uirement balanc es the proce dural rig hts of p ri s o n er against the need of prison officia ls to have fre edom to opera te their fa cilities on a day -to-day basis. Under this law, Har ris was entitled to a periodic rev i ew o f h i s confine ment, supported by some evidenc e or indicia of re liability

. Har ris rec eived me a

n in g f u l, p e r io d ic r e v ie w s d

u r in g th e r e levant portions of his confine ment. Starting in April 2006, Har ris rec eived monthly revie ws that wer e signe d by the Housing Unit Staff,
t h e S ec u ri ty Classification Commi ttee, and MacMe ekin. R. 57-5 at 27-30. These revie ws 2 considere d fac tors such as Har ris’s behavior and prior misconducts, as well as an interview with Har ris when he chose to participa te. Har ris challeng es the validity of two revie ws that occur red prior
to his transfe r to L MF, dated May 25, 2006 and Aug ust 24, 2006. I n these revie ws, the Housing Unit Staff rec ommend that he be rec lassified to g ener al population; howeve r, the Security Classification Commi ttee rec ommended continued seg reg ation. R. 57-5 at 27-30. I deally , the May 25 and Aug ust 24 revie ws would have set forth the prec ise rationale for the Commi ttee’s reje ction of the Housing Unit Staff’s rec ommendation. Howeve r, this does not make the revie ws constitutionally defic ient. The revie ws indicate that Har ris could h av e p ar t icipated in the proce ss, and that three levels of Although Har

ris had rec eived prior revie ws, no defe ndant was persona lly involved befor e 2 April 27, 2006. Acc ording ly , the court does not ne ed to de termine whether the prior revie ws wer e sufficie nt. - 6 -No. 09-2191

Harris v. Caruso, et al.

revie w occur

red. Given Har

ris’s history of violent a

nd disruptive behavior , a jury could only have found that the de cision to c ontinue Har ris’s seg reg ation was a leg itimate and re asonable one. The wisdom of this de cision was confirme d by Har ris’s subsequent “bonda

ble misconduct” on A ug ust 17, 2006, which was ref

lected in his October 16, 2006 revie w. R. 57-5 at 31. Ba sed on this, coupled with his extensive list of misconduct, a rea sonable jury could only conclud e t h at Har ris rec eived meaning ful, periodic r eviews be fore his transfer to L MF. Har ris continued to rec eive meaning ful, periodic revie ws following his transfe r to L MF. A commission periodica lly revie wed Har ris’s confine ment status pursuant to the applicable Michig an reg ulations

. S

e e MDOC Policy Direc tive 04.05.120 §§ BB B- HHH. Although the Housing Unit Staff g ave Har ris positive marks in are as such as “attitu d e with staff” or “per sonal hy g iene,” the staff consistently deter

mined that Har

ris had a “low” potential to “honor t h e trust implicit in less restric tive confine ment.” R.37, Ex. B

. Har ris was allowed to participa te in the revie w proce ss, a n opportunity

he exerc ised sporadic ally

. Id

. The monthly revie ws conducte d at L MF cross-r efe renc ed repo rt s o f misconduct, which is “some evidenc e” supporting the decision to conti n u e Ha rr i s ’s confine ment. For example, his Dec ember 2006 revie w incorpora tes by ref ere nce a November 10, 2006 Major Misconduct Report. Id. On that date, Har

ris ex presse d an intent to phy sically assault prison staff. R. 37, Ex

. A. An independe nt he aring office r upheld the char g e at a hear ing conducte d on November 15, 2006. Id. Har ris subsequently incurre d major misconducts for: assault and battery of a staff victim on Dec ember 12, 2006; diso b ey i n g a direc t order on Dec ember 18, 2006; threa tening behavior on

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Harris v. Caruso, et al.

J anuar y 14, 2007; destruction of property on Fe bruar

y 12, 2007; destruction of prison property on April 3, 2007; threate ning be havior on April 4, 2007; thr eate ning be havior on Apr il 21, 2008; and

an assault and b at t er y o f a staff member on May 1, 2008. Id. Har ris was found g uilty of these offe nses by an independe nt administrati v e h ear ing office r who is not employ ed by the Michig an De p ar t m ent of Correc tions. Id. , Ex

. D, Aff. of David Be rg h. The longe st Har ris went wit h o u t incurring a major misconduct at L MF was 12 mon ths: April 2007 to April 2008. Id. At no time during his stay at L MF did the Housing Unit Staff believe that Har ris was c apable of honoring the trust impli cit in a less re strictive conf inement. Ha rr i s attacks these revie ws, cling ing to isolated notations that he believes show that t h e revie ws wer e a sham. For example, he points to an October 16, 2006 revie w in which Har ris’s “attitude and social adjustment” wa s rated a s either “ g ood” or “ fair.” Appellant Br. 6. Fr om this, Har ris arg ues that the decision to continue his isolation had “no basis.” Id. Howeve r, this October 16 revie w was perf

ormed six day s afte r Har

ris’s arr ival at L MF. One month later, Har ris assaulted

a prison staff member. No rea sonable jury could have conclude d that the October 16 revie w was any thing but a preliminary evalu at i o n . Given the fac t that Har ris had been in administrative seg reg ation for the prec eding four y ear s, no rea sonable prison officia l would revoke that status afte r six day s of g ood behavior

. Har ris also points to a one-y ear period (ac tually one y ear and ten day s befor e his next major misconduct) during which he incurre d no major misconduct violations. During this pe riod, Har ris

rec eived a comment on his J une 2007 revie w that he should “continue positive behavior .” Appellant

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Harris v. Caruso, et al.

Br

. at 7. Howeve r, in Marc h 2007, the Housing Staff repor ted that Har

ris h ad a “proble m with

cer tai n s t af f” and “g ets ang ry quickly .” R. 37-5 at 14. And in J uly 2007, the staff repor ted that Har ris “ca n have explos ive behavior o u t o f n owher e, wher e he doesn’t follow staff direc tion and become s assaultive.” Id. at 8. Although the revie ws of his confine ment ref lect sporadic periods of g ood behavior , such as in J une 2007, this acc eptable behavior is interming led with troubling repor ts of violent, explos i v e i n cidents. Even though Har ris rec eived no misconduct citations during this period, the jury could only fi n d t h at t h e d ecision to continue seg reg ation was not a sham. As the district court noted, “ [t ]he fact that [Harr is] disag ree s with the rea soning a nd rec ommendations of the [reviewing committee] does not rende r the periodic revie ws constitutionally defic ient.” Harris v. Caruso , No. 2:08-cv- 105, 2009 WL 2777160, at *3 (W.D. Mich. Aug . 31, 2009). Har ris relies in larg e part on incidents that occ urre d befor e the de fenda nts were persona lly involved. MacMe ekin’s persona l involvement started on April 27, 2006. The persona l involvement of the L MF defe ndants beg an when Har ris was transfe rre d to L MF on October 10, 2006. Har ris’s relianc e on eve nts that occurr ed bef ore A pril 2006 is mis place d. 3 Nor does Massachusetts Correctional I nstitut ion v

. Hill , 472 U.S. 445, 455 (1985) compel a diffe rent c onclusion. I n Hill , a g ood-time-cr edit revoc ation case , the Court de termined that “the require ments of due proce ss are satisfied if some evidenc e supports the d ec i s i on by the prison

Among other things, Har

ris contends he rec eived g ood marks and rema ine d mi s conduct fre e 3 for a sevente en-month span from 2003 to 2004. Appellant Br

. at 5-6. Def endants are not liable for the ac tions that pre-da ted their pe rsonal involvement. - 9 -No. 09-2191

Harris v. Caruso, et al. disciplinary board.” 472 U.S. at 455. As discussed above, there was ample evidenc e on which the prison disciplinary

board r elied in making the seg reg ation deter mination. The other case on which Har ris relies is also distinguishable. I n Sourbeer v. Robinson , 791 F.2d 1094 (3rd Cir. 1986), the Third Circuit deter mine d t hat a fiftee n-y ear -old inmate in ad m i n istrative seg reg ation was denied due proce ss by “per functory ” revie ws of his confinem en t status. Id

. 1101-1102. The court found these revie ws inadequa te beca use, among other things: (1) the revie ws mere ly reiter ated the initial rea son for his seg reg ation; (2) the inmate had not been issued any misconducts during his stay ; and (3) the witnesses at his revie w did not have “prof essional dealing s or day -to-day

contac t” with the inmate. Id. I n contra st, Harr is’s review s list not only his orig inal misconduct that started his seg reg ation, but also listed factors suc h as his err atic beha vior and subsequent misconducts. Fur ther, it is undisputed that Har ris had numerous misconducts following his seg reg ation, which included subsequent assaults on prison staff. Finally , the revie ws

wer e completed, in part, by the Housing Unit Staff who had daily conta ct wi th Har ris. For these

rea sons, Sourbeer is disti ng uishable. 2. Eigh th Am endm ent Har ris challeng es the district court’s decision to g rant summary judgme nt with reg ard to his Eig hth Amendment claim befor e he was allowed discovery

. Howeve r, in the qualified-immunity context, “[o] nly aft er t h e court inquires into whether any fac ts materia l to Plaintiff’s claims are genuinely at issue, and only upon a finding that materia l fac ts are in fac t in dispute is a court at liberty to hold a motion for summary judgme nt in abey ance pending additional discovery .” Summers

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Harris v. Caruso, et al.

v. Leis , 368 F.3d 881, 886 (6th Cir. 2004). When a motion for summary judgme nt is filed, the party opposing the motion may explain why he is entitled to additional discovery

. Fe d. R. Civ. P. 56(f)

. The request m ust specify what facts m ight be reve aled by this addi t i o n al discovery

. Har ris stated that he neede d discovery to demonstrate an issue of fac t, but failed to specify which fac ts he hoped
to discover. R. 57. I n this case , like in Summers, “[b] are alleg ations or vag ue asser tions of the need for discovery are not e noug h.” Summers , 368 F.3d at 887. Har ris was not e ntitled to the discovery he soug ht. 3. Sup ervisor y Liab ility Har ris failed to alleg e fac ts establishing that Caruso was persona lly involved in the activity that forms the basis of his claims. See Harris v. Caruso , No. 2:08-cv-105, 2009 WL 2777160, at *5 (W.D. Mich. Aug

. 31, 2009). I n the context of a § 1983 claim, a supervisor is not liable for actions of her subordinates unless she persona lly participa ted in the offe nsive conduc t

. L each v. Shelby County Sheriff

, 891 F.2d 1241, 1246 (6th Cir. 1989). Her e, Har ris alleg es that Caruso denied over 100 instit utional gri ev an ce s . R. 57 at 2. A denial of a prisoner’ s instit utional g rieva nces is insufficient to support a claim of supervisory liability in the §1983 context. See Shehee v. Luttr ell , 199 F.3d 295, 300 (6th Cir. 1999). Acc ording ly , the district court proper ly g rante d Caruso summary judgme nt based on he r lac k of per sonal involvement III. The district cour

t’s order g ranting summary

judgme nt is affirmed.

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