## F I L E D United States Court of Appeals Tenth Circuit 

### October 18, 2005

Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JIMMY PHILLIPS,

Plaintiff-Appellant,

v. REGINALD HINES, individually and in his official capacity; SUSAN MILAN, individually and in her official capacity as Health Services Administrator; BARBARA WILSON, individually and in her official capacity as Unit Manager; FELIX KELLY, individually and in his official capacity as Unit Manager; TONITA TAYLOR, individually and in her official capacity as Administrative Officer; JIM RABON, Director’s Sentencing Authority Designee; RON WARD, Director; CECELIA STEPHENS, individually and in her official capacity as Food Supervisor,

Defendants-Appellees; and
OKLAHOMA DEPARTMENT OF CORRECTIONS,

Defendant. Nos. 04-6358 & 04-6382 (D.C. No. CV-03-295-M) (W.D. Okla.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- ORDER AND JUDGMENT *

Before EBEL , HARTZ , and McCONNELL , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff-appellant Jimmy Phillips is a prisoner of the State of Oklahoma proceeding pro se. He brought this suit under 42 U .S.C. § 1983, asserting various violations of his civil rights. He appeals from th e district court’s decisions granting defendants’ motion to dismiss or for summary judgment on all of his claims (No. 04-6358), and from the district court’s denial of his motion to proceed on appeal in forma pauperis (IFP) (No. 04-6 382). Plaintiff asserted six claims for relief: (1) defe ndants violated his rights under the Eighth Amendment by assigning him to a ki tchen job, which aggravated his chronic medical conditions, when defendants kne w that he was medically1 The Oklahoma Department of Corrections was never se rved and did not

appear below. -3- restricted from doing kitchen work; (2) defendants conducted plaintiff’s February 2003 adjustment review in violation of Oklahoma Dep artment of Corrections (DOC) policy and the United States Constitution; (3 ) defendants violated his right to due process of law by revoking 169 earned credit s and causing him to be incarcerated past his release date; (4) defendants improperly convicted him in a disciplinary proceeding, without evidence, of the o ffense of bartering; (5) defendants violated his right to equal protecti on with respect to the bartering conviction, in that other inmates who had committed a similar offense were treated differently; and (6) defendants violated hi s rights under the First and Fourteenth Amendments by denying his request to correspond with another inmate (his cousin) without a written statement of reasons

. Defendants Hines, Milan, Wilson, Kelly, Taylor, andStephens filed a motion to dismiss or for summary judgment. 1 R., Doc. 31. The magistrate judge thoroughly reviewed plaintiff’s claims and issued arecommendation setting out the reasons why he believed that they should be rej ected. He recommended that plaintiff’s claims against these six defendants in their official capacity be dismissed as barred by Eleventh Amendment immunity. Id. , Doc. 69, at 4. He further recommended that these defendants were enti tled to summary judgment on-4-

the subjective element of Count I because plaintiff failed to produce “evidence showing that Defendants knew that kitchen work pose d a substantial risk of harm or that Defendants disregarded that risk.” Id. at 12. The magistrate judge stated that plaintiff had no constitutional right either t o be classified so that he could earn good time credits or to compel defendants to f ollow DOC policy, so Count II should be dismissed for failure to state a claim. Id. at 5-6. The magistrate judge recommended that the six defendants who were partie s to the motion to dismiss or for summary judgment were entitled to summary judgm ent on Count III because plaintiff failed to allege that they were personall y responsible for the revocation of the credits. Id. at 14. The magistrate judge recommended that Coun ts IV and V necessarily implied the invalidity of plaintiff’s disciplinary conviction and therefore should be dismissed without prejudice bec ause plaintiff failed to show that his conviction had been reversed, expunged, or declared invalid. Id. at 15-16. The magistrate judge recommended that th ese six defendants were entitled to summary judgment on Count VI because pl aintiff failed to show a protected liberty interest in corresponding with another inmate. Id. at 17-18. The district court adopted the magistrate judge’s recom mendation in full in the amended order filed on April 8, 2004. Id. , Doc. 86. The magistrate judge considered separately the moti on by defendants Ward and Rabon for summary judgment and plaintiff’s moti on for partial summary2 We caution plaintiff that the practice of incorporating materials by

reference is disfavored in this court and could res ult in the waiver of his arguments. See Gaines-Tabb v. ICI Explosives, USA, Inc. , 160 F.3d 613, 623-24 (10th Cir. 1998). Plaintiff adopted by reference t he statement of the case in the magistrate judge’s Report and Recommendation–“so as to not burden this Honorable Court with academic reading perusal.” Ap lt. Br. at 1. Plaintiff should have fully set out his statement of the case in his opening brief.

-5- judgment on his claims related to the alleged impro per revocation of earned credits. Id. , Docs. 108, 110. The magistrate judge recommended that defendants Ward and Rabon be granted summary judgment based on qualified immunity, id. , Doc. 119, at 9, and that plaintiff’s motion be denied, id. at 17. The magistrate judge stated that even though it was undisputed that plaintiff’s earned credits were revoked in a procedurally flawed process, the credits were later restored and plaintiff was therefore not “deprived . . . of any liberty interest protected by the due process clause.” Id. at 10, 13-14. Further, the postponement of his pa role hearing due to the loss of earned credits did not support a due process claim, id. at 14, and plaintiff had no liberty interest in erroneously awarded credits, id. at 15-16. The district court adopted the magistrate judge’s recommendation. Id. , Doc. 129. We have reviewed the parties’ materials in light of the record on appeal and the applicable law. 2 Plaintiff’s arguments challenge the magistrate ju dge’s conclusions, but do not challenge the magistrate ju dge’s reasoning in any-6-

meaningful way. His arguments are in fact frivolou s. This court must dismiss an in forma pauperis appeal if it determines that the appeal is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i); see also Stafford v. United States , 208 F.3d 1177, 1179 n.4 (10th Cir. 2000) (citing 28 U.S.C. § 1915(e)(2)(B)) . An appeal is frivolous if “it lacks an arguable basis in either law or fact.” Thompson v. Gibson , 289 F.3d 1218, 1222 (10th Cir. 2002). We hold that this app eal is frivolous, and it is therefore dismissed. Plaintiff’s motion to proceedIFP on appeal in No. 04-6358 is denied, see Coppedge v. United States , 369 U.S. 438, 446 (1962), and the district court’s order denying IFP that plaintiff appeals in No. 04-6382 is affirmed. Plaintiff’s motion to correct and/or cla rify our December 16, 2004 order regarding fee assessments is denied. The appeal designated No. 04-6358 is DISMISSED. Th is dismissal counts as a strike under 28 U.S.C. § 1915(g). The distric t court order appealed in No. 04-6382 is AFFIRMED. Plaintiff is reminded that he remains obligated to make partial payments to this court until the entir e appellate filing fee is paid in accordance with 28 U.S.C. § 1915(b). The mandate s hall issue forthwith.

Entered for the Court

Michael W. McConnell Circuit Judge