FILED

United States Court of Appeals

Tenth Circuit

February 24, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDWARD ALLEN, a/k/a Edward Clutts,

Plaintiff - Appellant,

v.

RICK RAEMISCH; UNKNOWN

EXECUTIVE DIRECTOR DESIGNEE;

ANTHONY DECESARO; DONALD

CONFIELD; LOVOREN HEERMONN;

WARDEN STERLING

CORRECTIONAL FACILITY;

UNKNOWN WARDEN OF STERLING

DESIGNEE; OFFICER BOEFF,

Defendants - Appellees.

No. 14-1307

(D.C. No. 1:14-CV-01173-LTB)

(D. Colo.)

 

ORDER AND JUDGMENT*

Before HARTZ, McKAY, and MATHESON, Circuit Judges.

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

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered

submitted without oral argument.

*

 This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Appellate Case: 14-1307 Document: 01019389507 Date Filed: 02/24/2015 Page: 1 
Plaintiff Edward Allen, aka Edward Clutts, a state prisoner proceeding pro se, filed

this 42 U.S.C. § 1983 complaint to challenge the constitutionality of various actions taken

by different prison officials. A magistrate judge found the complaint deficient under Rule

8 and ordered Plaintiff to file an amended complaint. The district court then reviewed

Plaintiff’s amended complaint and found it to be legally frivolous. The court accordingly

dismissed the complaint, and this appeal followed.

Plaintiff raised four claims in his complaint: (1) the executive director of the

Department of Corrections “has an[d] will continue to force Allen to choose between

constitutional rights to medical care in prison and his constitutional rights to the courts by

scheduling him for medical appointments and law library appointments at the same time”;

(2) the executive director denied Plaintiff of his right to access the courts by transferring

him between different facilities while he was pursuing a small claims case for lost wages,

which prevented him from filing a timely response to the Colorado Attorney General’s

motion to dismiss and request for attorneys fees; (3) the prison warden violated Plaintiff’s

due process rights by not providing back pay for the time he spent in segregation while

prison officials investigated a charge on which Plaintiff was ultimately exonerated, and

by failing to restore him to his former prison job when he was exonerated on this charge;

and (4) two correctional officers violated Plaintiff’s due process rights when they failed to

properly store Plaintiff’s personal property when he was placed in segregation, instead

“d[e]stroy[ing] or allow[ing] someone else to take his property.” (Appellant’s Br. at 2.)

We agree with the district court that none of these claims state a valid claim for

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relief. First, Plaintiff has not shown that his conflicting appointments for law library

access and medical care have caused an actual violation of his First or Eighth Amendment

rights. Plaintiff argues his constitutional rights are violated simply by the fact that he is

occasionally forced to choose between going to the law library and receiving scheduled

medical or dental care. However, unless his conflicting appointments have actually

caused an injury to his First Amendment or Eighth Amendment rights, they are

insufficient to give rise to a constitutional claim. Cf. Myers v. Hundley, 101 F.3d 542,

544 (8th Cir. 1996) (holding that prisoners could not succeed on First Amendment right

of access claim based on insufficient allowance for hygiene supplies and legal fees unless

the inmates “specifically assert[ed] that the amounts left over from their allowances after

purchasing personal necessities caused actual injury” to their right of access to the

courts). Second, Plaintiff cannot demonstrate a violation of his First Amendment right of

access to the courts based on his difficulties in litigating the small-claims-court action,

since the right of access to the courts has been defined to cover only civil rights claims

and direct and collateral attacks on convictions and sentences. See Lewis v. Casey, 518

U.S. 343, 554-54 (1996). Third, prisoners do not have a protected liberty or property

interest in keeping a specific prison job, or even any employment at all, and Plaintiff has

not shown that he had a protected property or liberty interest in lost income for the time

he was unable to do his prison job due to his placement in segregation. See Penrod v.

Zavaras, 94 F.3d 1399, 1407 (10th Cir. 1996). Without a protected interest, Plaintiff’s

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due process claim must fail.1

 Finally, even if Plaintiff’s claim regarding his lost property

were sufficient to raise due process concerns, he has neither argued nor demonstrated the

post-deprivation remedy provided by the state court is inadequate, and thus his fourth

claim must likewise fail.

In his appellate brief, Plaintiff argues his case should be remanded based on the

magistrate judge’s review of his complaint, since “Magistrate Boland has a personal

interest in Allen’s actions [as] he is a witness to notification of claims in another of

Allen’s actions.” (Appellant’s Br. at 4 (spelling, punctuation, and capitalization

standardized).) However, although the district court’s order of dismissal mistakenly

identified the magistrate judge who reviewed Plaintiff’s complaint as Magistrate Judge

Boyd Boland, the record reveals it was a different magistrate judge who actually reviewed

the complaint. We thus need not consider Plaintiff’s argument that Magistrate Judge

Boland should have recused himself from the case.

For the foregoing reasons, and for substantially the same reasons given by the

district court, we AFFIRM the dismissal of this case. We GRANT Plaintiff’s motion to 

1

 In his appellate brief, Plaintiff frames his third claim as an equal protection claim

as well as a due process claim. However, Plaintiff did not raise any equal protection

arguments below, and we will not consider them for the first time on appeal.

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proceed in forma pauperis on appeal but remind him of his obligation to continue making

partial payments until the entire filing fee has been paid in full.

Entered for the Court

Monroe G. McKay

Circuit Judge

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