Allen v. Raemisch , 603 F. App'x 682 ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
February 24, 2015
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
EDWARD ALLEN, a/k/a Edward Clutts,
Plaintiff - Appellant,
v. No. 14-1307
(D.C. No. 1:14-CV-01173-LTB)
RICK RAEMISCH; UNKNOWN (D. Colo.)
EXECUTIVE DIRECTOR DESIGNEE;
ANTHONY DECESARO; DONALD
CONFIELD; LOVOREN HEERMONN;
WARDEN STERLING
CORRECTIONAL FACILITY;
UNKNOWN WARDEN OF STERLING
DESIGNEE; OFFICER BOEFF,
Defendants - Appellees.
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This order and judgment is not binding precedent, except under the doctrines of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.
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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