Whitmore v. Shifflett

          ORDER

          CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court for review of the Report and Recommendation (Doc. No. 17) issued by United States Magistrate Judge Suzanne Mitchell pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). Plaintiff, a pre-trial detainee appearing pro se and proceeding in forma pauperis, brought this action under 42 U.S.C. § 1983 alleging various violations of his constitutional rights. See Compl. (Doc. No. 1); Am. Compl. (Doc. No. 6).

         Judge Mitchell has recommended partial dismissal of Plaintiff's claims for failure to state a claim upon which relief can be granted. See R. & R. at 2; 28 U.S.C. § 1915A(b)(1). Plaintiff has objected to the Report and Recommendation. See Pl.'s Obj. to R. & R. (Doc. No. 18).^[1] Plaintiff's objection triggers de novo review of those portions of the Report and Recommendation to which objection is made. See, e.g., United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). Issues or claims raised for the first time, however, are waived. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).

         I. Official-Capacity Claims

         Judge Mitchell concluded that Plaintiff's official-capacity claims-which are, in effect, claims against the municipality for which Defendants work-should be dismissed because Plaintiff has not alleged that his constitutional rights were violated pursuant to any municipal policy or custom. See R. & R. at 9. Plaintiff does not challenge this conclusion. See Pl.'s Obj. to R. & R. at 12 (“As for the Magistrate recommending that the Defendants . . . be dismissed in their official capacity[ies] [Plaintiff] does not object”).

         Therefore, the Court adopts Judge Mitchell's recommendation to dismiss Plaintiff's official-capacity claims.

         II. Claim I

         Claim I is predicated on allegations that Plaintiff was summarily terminated from his employment as a “Laundry Trustee.” See Compl. at 7-10. Judge Mitchell concluded that Plaintiff failed to state a due-process claim because he had no liberty or property interest in his employment or in any privileges stemming therefrom. See R. & R. at 10-11. In support of this conclusion, Judge Mitchell cited two Tenth Circuit cases: Ingram v. Papalia, 804 F.2d 595 (10th Cir. 1986), and Penrod v. Zavaras, 94 F.3d 1399 (10th Cir. 1996). See R. & R. at 10-11. Ingram recognized that “[t]he Constitution does not create a property or liberty interest in prison employment, ” and thus, “any such interest must be created by state law.” Ingram, 804 F.2d at 596. Penrod held that “[state] prison regulations entitling prisoners to work do not create a constitutional liberty interest because a denial of employment opportunities to an inmate does not impose an ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'” Penrod, 94 F.3d at 1407 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).

         The “atypical and significant hardship” standard referenced in Penrod derives from Sandin v. Conner, 515 U.S. 472 (1995).^[2] In his Objection, Plaintiff argues that, as a pre-trial detainee, the Sandin standard is inapplicable to him. See Pl.'s Obj. to R. & R. at 3 (“Plaintiff . . . is not convicted . . . so [his] liberty interest is [a]lot different from a[n] already convicted prisoner”).

         Prior to Sandin, the existence of a state-created property or liberty interest was determined by examining the relevant statutory or regulatory text. Id. at 480. An interest was actionable under the Fourteenth Amendment if it “used ‘language of an unmistakably mandatory character' such that the incursion on liberty would not occur ‘absent specified substantive predicates.'” Id. (citing Hewitt v. Helms, 459 U.S. 460, 471-72). Rejecting this approach, the Sandin Court held that, in the prison context, a state-created interest is actionable only if it is designed to protect against an “atypical and significant hardship . . . in relation to the ordinary incidents of prison life.” Id. at 484.

         Although Plaintiff is correct that Sandin's “atypical and significant hardship” standard does not apply to a conditions-of-confinement claim by a pretrial detainee, it is unclear whether this is so with respect to the claim asserted here, a deprivation-of-property claim by a pretrial detainee. See Peoples v. CCA Det. Ctrs., 422 F.3d 1090, 1106 n.12 (10th Cir. 2005), opinion vacated in part on reh'g en banc, 449 F.3d 1097 (10th Cir. 2006); accord Rapier v. Harris, 172 F.3d 999, 1004-05 (7th Cir. 1999); Fuentes v. Wagner, 206 F.3d 335, 342 n. 9 (3d Cir. 2000). The Court need not resolve that question, however, for irrespective of Sandin's applicability, the fact remains that Plaintiff has not identified a predicate liberty or property interest in his prison employment.

         Because the Constitution does not create one, Ingram, 804 F.2d at 596, Plaintiff must at a minimum identify a state statute or regulation that affords him “‘a legitimate claim of entitlement' in continued employment, as opposed to a ‘unilateral expectation' or ‘an abstract need or desire' for it.” Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir. 1994) (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). The same would be true if Plaintiff were a non-incarcerated prison employee. He has not done so.

         Accordingly, the Court adopts Judge Mitchell's recommendation to dismiss Claim I but expresses no opinion on the applicability of Sandin's “atypical and ...