Johnny Mario Duran v. Gary W. Deland, Jim Gober, Perales, Richardson, Darrell, Muller , 972 F.2d 356 ( 1992 )

972 F.2d 356

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Johnny Mario DURAN, Plaintiff-Appellant,
v.
Gary W. DELAND, Jim Gober, Perales, Richardson, Darrell,
Muller, Defendants-Appellees.

No. 92-4034.

United States Court of Appeals, Tenth Circuit.

July 30, 1992.

Before JOHN P. MOORE, TACHA and BRORBY, Circuit Judges.

ORDER AND JUDGMENT*

TACHA, Circuit Judge.

1

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); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

This appeal is from an order of the district court adopting the report and recommendation of the magistrate judge and dismissing plaintiff's complaint under 28 U.S.C. § 1915(d). Appellant Johnny Duran appeals on the grounds that the district court erred in dismissing his complaint because the complaint failed to state a claim under 42 U.S.C. § 1983. We affirm.

3

We agree with the district court that all allegations against the defendants in their official capacities must be dismissed because 42 U.S.C. § 1983 does not provide a congressional override to the Eleventh Amendment. Therefore, state officials acting in their official capacities are immune from suit. With respect to the individual claims against defendants, Duran has failed to show the deprivation of a property or liberty interest sufficient to state a claim under 42 U.S.C. § 1983. We have held that the Constitution does not create a property or liberty interest in prison employment. Ingram v. Papalia, 804 F.2d 595, 596 (10th Cir.1986). Any such interest must be created by state law. See Hewitt v. Helms, 459 U.S. 460 (1983). Utah law does not create such a right to prison employment. Further, the "C" notes, or chronological notes, are property of the prison in which the inmate has no property interest. Thus, the district court correctly dismissed the complaint as frivolous under 28 U.S.C. § 1915(d). AFFIRMED. The mandate shall issue forthwith.

*

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3