United States Court of Appeals,
Fifth Circuit.
No. 94-41226.
Harold BULGER, Plaintiff-Appellant,
v.
UNITED STATES BUREAU OF PRISONS, et al., Defendants-Appellees.
Sept. 26, 1995.
Appeal from the United States District Court for the Eastern
District of Texas.
Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Harold Bulger ("Bulger") appeals the summary dismissal of his
federal prisoner's Bivens1 suit. Bulger contends that he was
deprived of a liberty or property interest when he was removed from
his prison job. Because we determine that a prisoner has no
liberty or property interest in his job assignment, we affirm.
I.
Bulger, a prisoner at the Texarkana Federal Correctional
Institution, sued the United States Bureau of Prisons and various
federal officials, alleging that he was denied due process in the
manner in which he was terminated from his Federal Prison
Industries (UNICOR) job assignment. According to Bulger's
complaint, he received a UNICOR work assignment in the shipping
office on June 13, 1991. On July 13, 1992, he asked to be
reassigned to another position in the shipping office that had
1
Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct.
1999, 29 L.Ed.2d 619 (1971).
1
recently become vacant. Shipping Office Supervisor Jim Smith
denied this request, presented Bulger with a poor work performance
evaluation, and told Bulger that he was being dismissed from
UNICOR. Bulger refused to sign the "grossly dishonest evaluation."
On July 16, Bulger contacted Quality Assurance Manager Bill Hall
and Assistant Factory Manager Bobby Jackson, both of whom told him
that there were no other UNICOR jobs available.
Bulger was removed from UNICOR work status and was reassigned
to an institutional job in Food Service. The following week, other
inmates received UNICOR work assignments, including an assignment
in the shipping office. Bulger alleges that his firing was
unjustified and undertaken without the knowledge and approval of
his unit team, in violation of the regulations and his due process
rights.
The defendants moved for dismissal pursuant to FED.R.CIV.P.
12(b)(6) for failure to state a claim for relief, or alternatively
for summary judgment, arguing, inter alia, that job assignments are
matters within the sound discretion of prison administrators.
Bulger filed a cross-motion for summary judgment. The magistrate
judge issued a report recommending that the motion to dismiss be
granted because Bulger had no constitutionally protected interest
in a UNICOR job. The district court adopted the report and
recommendation of the magistrate judge over Bulger's objections and
dismissed the action with prejudice.
II.
Although the magistrate judge's report discussed the parties'
2
summary judgment motions, it disposed of Bulger's claims under
FED.R.CIV.P. 12(b)(6), without reference to evidence from outside
the pleadings. Cf. Balogun v. INS, 9 F.3d 347, 352 (5th Cir.1993)
(decision disposing of party's claim by reference to evidence
outside the pleadings construed as grant of summary judgment). We
review de novo the dismissal for failure to state a claim. See
Jackson v. City of Beaumont Police Dep't, 958 F.2d 616, 618 (5th
Cir.1992). The motion may be granted only if it appears that no
relief could be granted under any set of facts that could be proven
consistent with the allegations. Id.
Prisoner classification and eligibility for rehabilitation
programs in federal prisons are not directly subject to "due
process" protections. Moody v. Doggett, 429 U.S. 78, 88 n. 9, 97
S.Ct. 274, 279 n. 9, 50 L.Ed.2d 236 (1976). Furthermore, prisoners
have no constitutionally protected liberty or property interests
per se in their prison job assignments. Jackson v. Cain, 864 F.2d
1235, 1250 (5th Cir.1989) (§ 1983 case).
Bulger, however, contends that the mandatory language of 28
C.F.R. § 345.12(d) (1994) created a liberty or property interest
such that his termination from his UNICOR assignment, without the
approval of his unit team and in violation of that regulation,
constitutes a denial of due process. Section 345.12(d) states:
"The Superintendent of Industries may recommend to an inmate's unit
team an inmate's dismissal from UNICOR. The Superintendent of
Industries may not independently remove an inmate from UNICOR work
status."
3
Bulger's attempt to locate a protected liberty interest based
upon the mandatory language of § 345.12(d) is misplaced. In Sandin
v. Conner, --- U.S. ----, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995),
the Court employed a new methodology for determining whether prison
regulations on confinement of an inmate create a liberty interest.
Rather than relying on the language of the regulations for
mandatory language and substantive predicates, cf. Hewitt v. Helms,
459 U.S. 460, 471-72, 103 S.Ct. 864, 871-72, 74 L.Ed.2d 675 (1983),
the Court focused on the discipline imposed and determined that the
defendant's confinement to disciplinary segregation for a period of
thirty days did not "present the type of atypical, significant
deprivation in which a state might conceivably create a liberty
interest." --- U.S. at ----, 115 S.Ct. at 2301.
Bulger's termination from his UNICOR job and reassignment to
a non-UNICOR job did not impose an atypical and significant
hardship on him in relation to the ordinary incidents of prison
life. Although he complains of losing extra good-time credits,
Bulger merely lost the ability to accrue such credits
automatically.2 Thus, his situation does not present a case in
which the complained-of action "will inevitably affect the duration
of his sentence." See Conner, --- U.S. at ----, 115 S.Ct. at 2302.
No liberty interest is at issue.
2
Pursuant to 18 U.S.C. § 4162 and 28 C.F.R. § 523.14,
inmates assigned to UNICOR jobs automatically accrue extra
good-time credits, which inmates assigned to non-UNICOR jobs do
not automatically accrue, although they may earn such credits,
upon recommendation by the prison staff, by performing
"exceptionally meritorious" service. 18 U.S.C. § 4162, 28 C.F.R.
§ 523.11.
4
While, in the wake of Conner, prisoners may no longer peruse
statutes or prison regulations searching for mandatory language on
which to base a due process liberty claim, Conner did not instruct
on the correct methodology for determining when prison regulations
create a protected property interest. Nonetheless, this law is
well established. In Board of Regents v. Roth, 408 U.S. 564, 577,
92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), the Court stated that
to have a property interest in a benefit, a person must have more
than a unilateral expectation of it. Rather, he must "have a
legitimate claim of entitlement to it." Id.
Courts of appeals consistently have held that an inmate's
expectation of keeping a specific prison job, or any job, does not
implicate a protected property interest.3 Furthermore, two
circuits have held that federal prisoners have no property interest
in their UNICOR job assignments.4
3
See, e.g., Coakley v. Murphy, 884 F.2d 1218, 1221 (9th
Cir.1989) (holding that inmates have no protected property
interest in continuing in work-release program); Flittie v.
Solem, 827 F.2d 276, 279 (8th Cir.1987) (opining that inmates
have no constitutional right to be assigned to a particular job);
Ingram v. Papalia, 804 F.2d 595, 596 (10th Cir.1986) (concluding
that the Constitution does not create a property interest in
prison employment); Adams v. James, 784 F.2d 1077, 1079 (11th
Cir.1986) (stating that assignment to job as law clerk does not
invest inmate with a property interest in continuation as such;
Gibson v. McEvers, 631 F.2d 95, 98 (7th Cir.1980) (holding that
prisoner's expectation of keeping prison job does not amount to a
property interest subject to due process protection); Bryan v.
Werner, 516 F.2d 233, 240 (3d Cir.1975) (reasoning that inmate's
expectation of keeping job is not a property interest subject to
due process protection).
4
See James v. Quinlan, 866 F.2d 627, 629-30 (3d Cir.), cert.
denied, 493 U.S. 870, 110 S.Ct. 197, 107 L.Ed.2d 151 (1989);
Garza v. Miller, 688 F.2d 480, 485-86 (7th Cir.1982), cert.
denied, 459 U.S. 1150, 103 S.Ct. 796, 74 L.Ed.2d 1000 (1983).
5
Accordingly, we now join the other circuits in holding that
a prisoner does not have a legitimate claim of entitlement to
continuing UNICOR employment. The regulation relied upon by Bulger
is procedural and does not place substantive restrictions on the
authority of prison officials to remove an inmate from UNICOR.
Thus, any expectation that Bulger might have had in keeping his
UNICOR prison job does not amount to a property interest entitled
to due process protection. Accordingly, the judgment of dismissal
is AFFIRMED.5
5
On appeal, Bulger raises four additional issues that, under
the facts and circumstances of this case, are totally without
merit, and we decline to discuss them: (1) the district court's
alleged "premature dismissal" by adopting the magistrate's
recommendation and report; (2) prison officials' alleged
"vindictive and malicious" actions in transferring Bulger; (3)
Bulger's alleged failure to receive certain court papers; and
(4) his alleged inability to raise certain matters in the
district court.
6