This order and judgment is not binding precedent except under the doctrines of law of *

the case, res judicata and collateral estoppel. The court generally disfavors the citation of

orders and judgments; nevertheless, an order and judgment may be cited under the terms

and conditions of 10th Cir. R. 36.3.

F I LED

United States Court of Appeals

Tenth Circuit

July 18, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID J. GILBREATH,

Plaintiff - Appellant,

v.

DUNCAN K. CLARK; Supervisor I,

Saddle Shop; GEORGE UHLAND,

Supervisor III, Saddle Shop; CASEY

HIBBS, Supervisor I, Saddle Shop;

ANTHONY A. DECESARO,

Grievance Officer Colorado

Department of Corrections; JOHN

SUTHERS, Attorney General, State of

Colorado,

Defendants-Appellees.

No. 05-1380

(D. Colorado)

(D.Ct. No.05-CV-918-ZLW)

ORDER AND JUDGMENT

*

Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
 We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318 2

F.3d 1183, 1187 (10th Cir. 2003).

-2-

therefore ordered submitted without oral argument.

I. Background

David J. Gilbreath, a state prisoner proceeding pro se, filed a prisoner 2

complaint pursuant to 42 U.S.C. § 1983 alleging a violation of his constitutional

rights arising from his termination from a prison job. The district court dismissed

the complaint as “legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B).” (R.

Doc. 5 at 4.) Gilbreath then filed a notice of appeal and a motion for leave to

proceed in forma pauperis (ifp) on appeal. The district court denied the motion

pursuant to 28 U.S.C. § 1915(a)(3), finding the appeal was not taken in good faith

because Gilbreath had not “shown the existence of a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal.” (R. Doc.

11.) Gilbreath has filed with this Court a combined motion for leave to proceed

ifp and opening brief. See FED. R. APP. P. 24(a)(5). We DENY Gilbreath’s

motion for leave to proceed ifp and AFFIRM.

II. Discussion

A. Timeliness of appeal

At the outset, we must determine whether we have jurisdiction to consider

this matter. The timely filing of a notice of appeal is “mandatory and

jurisdictional.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988). 
-3-

The order dismissing Gilbreath’s § 1983 action was entered on July 1, 2005. 

Gilbreath’s notice of appeal was not filed until August 16, 2005, past the thirtyday time limit set forth in Rule 4(a)(1)(A) of the Federal Rules of Appellate

Procedure. While at first blush it appears the notice of appeal is untimely,

application of Rule 58 of the Federal Rules of Civil Procedure leads to the

contrary conclusion.

Rule 58 requires every judgment to “be set forth on a separate document.” 

FED. R. CIV. P. 58(a)(1). In this case, although the district court’s order was

entered on July 1, 2005, no separate judgment was filed. Because the district

court’s order contained detailed legal analysis, it did not satisfy the requirements

of a judgment under Rule 58. See Clough v. Rush, 959 F.2d 182, 185 (10th Cir.

1992). Because a separate judgment was not filed, Rule 58(b)(2)(B) is triggered. 

Under Rule 58(b)(2)(B), a judgment is deemed entered within 150 days from

entry of the order in the civil docket. Gilbreath’s notice of appeal was filed

within this time frame and thus is timely.

B. Dismissal of § 1983 action

We review a district court’s determination of frivolousness under § 1915

for an abuse of discretion. Denton v. Hernandez, 504 U.S. 25, 33 (1992);

Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). A complaint may be

deemed frivolous “where it lacks an arguable basis either in law or in fact.” 

Neitzke v. Williams, 490 U.S. 319, 325 (1989). Legally frivolous claims include
-4-

“claims of infringement of a legal interest which clearly does not exist.” Id. at

327.

The district court ruled Gilbreath was not deprived of a constitutionally

protected liberty or property interest in the termination of his prison employment.

The court was correct in its ruling. The law is clear: a prisoner does not have a

protected liberty interest in his prison job. Penrod v. Zavaras, 94 F.3d 1399,

1407 (10th Cir. 1996). Furthermore, prison grievance procedures do not “give

rise to a protected liberty interest requiring the procedural protections envisioned

by the fourteenth amendment.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.

1993) (quotation omitted). The defendants’ alleged failure to follow prison rules

in terminating Gilbreath from his job did not impose an “atypical and significant

hardship . . . in relation to the ordinary incidents of prison life,” and thus did not

implicate due process considerations. Sandin v. Conner, 515 U.S. 472, 484

(1995).

AFFIRMED.

The district court found the appeal was not taken in good faith pursuant to

28 U.S.C. § 1915(a)(3). After reviewing Gilbreath’s contentions, and giving

weight to the district court’s decision, we agree. Coppedge v. United States, 369

U.S. 438, 446 (1962). Gilbreath’s appeal is “without merit in that it lacks an

arguable basis in either law or fact.” Thompson v. Gibson, 289 F.3d 1218, 1222

(10th Cir. 2002). We DENY Gilbreath’s motion to proceed ifp and order him to
-5-

remit the full amount of the filing fee within twenty days. Kinnell v. Graves, 265

F.3d 1125, 1129 (10th Cir. 2001) (dismissal of an appeal does not relieve

appellant of obligation to pay appellate filing fee in full).

The district court’s dismissal of Gilbreath’s complaint as frivolous counts

as a strike pursuant to 28 U.S.C. § 1915(g). Gilbreath is reminded that if he

accrues three strikes, he will no longer be able to proceed ifp in any civil action

filed in a federal court unless he is in imminent danger of serious physical injury.

Entered by the Court:

Terrence L. O’Brien

United States Circuit Judge