United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE.
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).
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). 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).
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”).
the Court adopts Judge Mitchell's recommendation to
dismiss Plaintiff's official-capacity claims.
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
“atypical and significant hardship” standard
referenced in Penrod derives from Sandin v.
Conner, 515 U.S. 472 (1995). 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”).
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.
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.
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.
the Court adopts Judge Mitchell's recommendation to
dismiss Claim I but expresses no opinion on the applicability
of Sandin's “atypical and ...