Johnson v. Ward , 76 F. App'x 858 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 12 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
KURK JOHNSON,
Plaintiff-Appellant,
v. Nos. 00-7053 & 02-7056
(D.C. No. 98-CV-428-S)
RON WARD, Warden; GARY (E.D. Okla.)
GIBSON, Warden; LEE MANN,
Assistant Warden; MIKE PRUITT,
Unit Manager; JIMMY SHIPLEY,
Case Manager; BILLY MOORE,
Case Manager,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , EBEL , and O’BRIEN , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases
are 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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Kurk Johnson brought this action in forma pauperis seeking
monetary and injunctive relief under 42 U.S.C. § 1983 for defendants’ alleged
denial of his constitutional rights. The district court dismissed the action under
28 U.S.C. § 1915(e) as frivolous. We review the district court’s decision for an
abuse of discretion, McWilliams v. Colorado , 121 F.3d 573, 574-75 (10th Cir.
1997), and affirm.
Johnson is a prisoner incarcerated at the Oklahoma State Penitentiary.
He was working in the prison kitchen in August 1997 when he was charged with
misconduct for an alleged battery. He claims that the misconduct charge caused
him to be terminated from his job. Following a hearing, the misconduct charge
was dismissed for failure to comply with due process. In his complaint, Johnson
contended that there was an unreasonable delay in removing the misconduct
charge from his records; that the loss of his job reduced his ability to earn
good-time credits and cost him twenty-eight days of good-time credit for
September 1997; and that defendants violated his due process and liberty interest
rights. He sought compensatory and punitive damages and restoration of lost
good-time credits.
Defendants filed a report pursuant to Martinez v. Aaron , 570 F.2d 317(10th Cir. 1978), and moved for summary judgment. They contended that
Johnson was not fired from his job and placed at a lower level for earning
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good-time credits because of his misconduct charge per se. They contended,
somewhat inconsistently, that he lost his job either because of behavior problems
(apparently the same behavior problems that led to the misconduct charge) or
because the fact that he had been charged with misconduct required that he be
placed in the residential housing unit, which caused him to be placed on idle
status. In any event, they argued, Johnson did not have a liberty interest in his
prison job or his opportunity to earn good-time credits, and therefore was not
entitled to due process before being removed from his job. They also contended
that Johnson did not lose any properly earned credits for September 1997.
Although his records reflected a deduction of twenty-eight days, this was just
a correction for days improperly posted in his favor.
The district court agreed with defendants that Johnson did not have a right
to a prison job and that the deduction of credits in September 1997 was just an
adjustment for credits previously posted incorrectly. It therefore determined that
Johnson’s allegations did not rise to the level of a constitutional violation and
dismissed his complaint pursuant to 28 U.S.C. § 1915(e).
Johnson filed a notice of appeal. We initially questioned whether the
notice was timely under Fed. R. App. P. 4(a)(1)(A) and the prison mailbox rule,
and partially remanded the case for a factual determination of when Johnson gave
his notice of appeal to prison officials. The district court obtained arguments and
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evidence from the parties, and ruled that Johnson’s notice was untimely. Johnson
filed a separate notice of appeal (No. 02-7056) of that determination. On further
consideration of the record, however, we conclude that the notice of appeal was
timely because the district court has not entered separate judgment as required by
Fed. R. Civ. P. 58. 1
See Clough v. Rush , 959 F.2d 182, 185 (10th Cir. 1992).
Therefore, the time for filing a notice of appeal has not yet begun to run. Even
though there is no separate judgment as required by Rule 58, we accept
jurisdiction in this case because “[e]fficiency and judicial economy would not be
served by requiring the parties to return to the district court to obtain a separate
judgment.” Id. at 186.
On appeal on the merits, Johnson contends that the State of Oklahoma
granted prisoners a liberty interest in its system for earning good-time credits;
that he was denied due process in being terminated from his job; that his improper
termination cost him the opportunity to earn good-time credits; that the reasons
defendants gave for terminating his job were pretextual; and that defendants’
misconduct appeal process was meaningless.
1
Rule 58 and Fed. R. App. P. 4(a)(7) were amended effective December 1,
2002. Because the court’s order and notice of appeal were filed in 2000, we
apply the prior version of these rules. Our conclusion on the timeliness of the
appeal would be the same under the amended version of these rules.
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We agree with the district court that Johnson did not have a liberty interest
in his prison job. See Penrod v. Zavaras , 94 F.3d 1399, 1407 (10th Cir. 1996).
Defendants’ termination of his job, regardless of reason, and the alleged
inadequacy of the appeal process therefore do not raise any due process concerns.
We also disagree with his contention that he had any liberty interest in the
opportunity to earn good-time credits. See Antonelli v. Sheahan , 81 F.3d 1422,
1431 (7th Cir. 1996); Luken v. Scott , 71 F.3d 192, 193-94 (5th Cir. 1995).
Denying a prisoner such opportunity does not present “the type of atypical,
significant deprivation in which a State might conceivably create a liberty
interest.” Sandin v. Conner , 515 U.S. 472, 486 (1995). Moreover, we have
specifically rejected the claim that Oklahoma has granted prisoners a liberty
interest in its system for earning good-time credits. Twyman v. Crisp , 584 F.2d
352, 356-57 (10th Cir. 1978). (We note that the 1976 version of the relevant
statute, Okla. Stat. tit. 57, § 138, interpreted in Twyman is substantially similar
to the 1999 version in effect when the actions at issue in this case occurred.)
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The judgment of the district court on the merits (Appeal No. 00-7053) is
AFFIRMED. Appeal No. 02-7056 is DISMISSED as moot. All outstanding
motions are DENIED. Johnson is reminded of his obligation to continue making
partial payments until the entire balance of his appellate filing fee for appeal No.
00-7053 is paid. Johnson does not have to pay a filing fee for appeal No. 02-
7056.
ENTERED FOR THE COURT
PER CURIAM
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