1 Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct.

1999, 29 L.Ed.2d 619 (1971).

1 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 t he 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 prison er's B ivens 1 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 had2

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 dismiss ed from

UNICOR. Bulger refused to sign the "grossly dishonest evaluation."

On July 1 6, 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

unjus tified 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 di smissal pursuant to F E D .R.C IV .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'3

summary judgm ent motions, it disposed of Bulger's claims under

F ED .R.C IV .P. 12(b) (6), without reference to evidence from outside

the pleadings. C f. 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. S ee

Jackson v. City o f 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 pro perty interests

per se in their prison job assignments. J ackson 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."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 Bulger's attempt to locate a protected liberty interest based

upon the mandatory language of § 345.12(d) is misplaced. In S andin

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 lang uage 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 mig ht 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." S ee Conner,

--- U.S. at ----, 115 S.Ct. at 2302.

No liberty interest is at issue.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 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 proper ty interest. Nonetheless, this law is

well established. In B oard 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 h eld that an inmate's

expectation of keeping a specific prison job, or any job, does not

impl icate a protected property interest. 3 Furthermore, two

circuits have held that federal prisoners have no property interest

in their UNICOR job assignments. 45 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 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 subs tantive 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