Opinion
Case No. 2:05-cv-795.
February 6, 2006
ORDER
This matter is before the Court on plaintiff's November 21, 2005 objection to the Magistrate Judge's November 9, 2005 Report and Recommendation denying plaintiff's motion to prevent his transfer to another institution and to freeze and hold all assets of corrections officer Greg Nesser. As required by 28 U.S.C. § 636(c), the Court has made a de novo review of those portions of the Report and Recommendation to which the plaintiff specifically objects. Upon de novo review, the Court OVERRULES the plaintiff's objection.
Plaintiff believes that a transfer would be detrimental to his efforts to litigate this case. He fears that defendants will transfer him in retaliation for bringing this lawsuit. The Magistrate Judge correctly assessed the four factors to decide whether to issue a preliminary injunction:
(1) whether the movant has a "strong" likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable harm; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by granting injunctive relief.McPherson v. Michigan High Sch. Athletics Ass'n, Inc., 119 F.3d 453, 459 (6th Cir. 1997) ( en banc) (quoting Sandison v. Michigan High Sch. Athletic Ass'n, Inc., 64 F.3d 1026, 1030 (6th Cir. 1995); Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir. 2000). "The four considerations applicable to preliminary injunction decisions are factors to be balanced, not prerequisites that must be met." Michigan Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir. 2001).
To show a likelihood of prevailing on the merits, plaintiff must establish the likely existence of a constitutional violation causally related to the result to be enjoined. Martin-Marietta v. Bendix, 690 F.2d 558, 565 (6th Cir. 1982). A prisoner does not have a constitutionally protected right to remain at a particular prison. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983). The Director of the Ohio Department of Rehabilitation has the discretion to assigning inmates to prisons and to transfer them from one prison to another. See Ohio Rev. Code § 5120.01 ("Inmates committed to the department of rehabilitation and correction shall be under the legal custody of the director or the director's designee, and the director or the director's designee shall have power to control transfers of inmates between the several state institutions included under section 5120.05 of the Revised Code."). Plaintiff has no constitutionally protected interest in remaining at the Chillicothe Correctional Center. See Montayne v. Haymes, 427 U.S. 236, 242-43 (1976); Meachum v. Fano, 427 U.S. 215, 224-25 (1976).
At this time, plaintiff maintains that he has not had any further problems as a result of being transferred to another institution. Instead, plaintiff seeks "for the door to be left open if need arises" with respect to this issue. However, as the Magistrate Judge noted, even if further problems arise, those issues would not be properly before the Court. Under 42 U.S.C. § 1997e(a), a prisoner challenging "prison conditions" under § 1983 must first exhaust his administrative remedies. "[T]he [Prison Litigation Reform Act]'s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Consequently, the Court ADOPTS the Magistrate Judge's recommendation that plaintiff's September 8, 2005 motion for an injunction to remain at his current institution (doc. 5) be DENIED.
Plaintiff also seeks an order to freeze and hold all assets of corrections officer Greg Nesser because he believes that the State should not bear the full burden of financial responsibility for actions taken by Nesser that were beyond the scope of his duties. Section 2715.01 of the Ohio Revised Code provides in pertinent part:
(A) An attachment against the property, other than personal earnings, of a defendant may be had in a civil action for the recovery of money, at or after its commencement, upon any one of the following grounds:
(1) Excepting foreign corporations which by compliance with the law therefore are exempted from attachment as such, that the defendant or one of several defendants is a foreign corporation;
(2) That the defendant is not a resident of this state;
(3) That the defendant has absconded with the intent to defraud creditors;
(4) That the defendant has left the county of the defendant's residence to avoid the service of a summons;
(5) That the defendant so conceals self that a summons cannot be served upon the defendant;
(6) That the defendant is about to remove property, in whole or part, out of the jurisdiction of the court, with the intent to defraud creditors;
(7) That the defendant is about to convert property, in whole or part, into money, for the purpose of placing it beyond the reach of creditors;
(8) That the defendant has property or rights in action, which the defendant conceals;
(9) That the defendant has assigned, removed, disposed of, or is about to dispose of, property, in whole or part, with the intent to defraud creditors;
(10) That the defendant has fraudulently or criminally contracted the debt, or incurred the obligations for which suit is about to be or has been brought;
(11) That the claim is for work or labor.
Defendant Greg Nesser does not fall within the criteria set forth in the statute. As the Magistrate Judge noted, plaintiff has failed to offer any evidence to support a claim that — should he obtain a judgment against the correctional officer — it would be uncollectible because Nesser is transferring assets or engaging in other activity to avoid paying any judgment.
Plaintiff does not object on the basis that the Magistrate Judge erred by not ordering the freezing of defendant Nesser's assets. Instead, plaintiff appears to object on the basis that he has not received confirmation that defendant Nesser was properly served. The docket does reflect that defendant Nesser has not been served. Docket entry #12 indicates that the certified mail return receipt was marked "refused." Accordingly, the Court ADOPTS the Magistrate Judge recommendation that plaintiff's September 8, 2005 motion to freeze the assets of corrections officer Greg Nesser (doc. 6) be DENIED.
For the reasons stated above, the Court ADOPTS the Magistrate Judge's November 9, 2005 Report and Recommendation. Plaintiff's September 8, 2005 motions for an injunction to remain at his current institution (doc. 5) and to freeze the assets of corrections officer Greg Nesser (doc. 6) are DENIED.