Luke Soule v. M. Potts, et al
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Diane P. Wood, Chief Judge; Richard A. Posner, Circuit Judge and Michael S. Kanne, Circuit Judge. [6818120-1]  [16-3072]
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 2, 2017 *
Decided February 10, 2017
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
LUKE J. SOULE,
Appeal from the United States District
Court for the Western District of Wisconsin.
M. POTTS, et al.,
James D. Peterson,
Luke Soule, a federal inmate, appeals the dismissal of his suit 1 asserting that
prison officials downgraded his prison job without due process.
The defendants were not served with process in the district court and are not
participating in this appeal. We have agreed to decide this case without oral argument
because the issues have been authoritatively decided. FED. R. APP. P. 34(a)(2)(B).
1 Although Soule filed his complaint on a form entitled “Complaint Under The
Civil Rights Act, 42 U.S.C. § 1983,” the district court understood him to have brought
this action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971), because the defendants are federal actors.
Soule was removed from his job in the vegetable-preparation room at the Oxford
Federal Correctional Institution and reassigned to a lower pay grade position in the
dining room. As set forth in his complaint, Soule received this reassignment because
someone had been suspected of theft: in the dining room, prison officials had found
onions that they believed someone had stolen from the vegetable-preparation room. He
filed an administrative complaint, which was denied, and the denial was upheld in his
subsequent appeals. He then filed suit asserting that the officials violated his right to
due process by (1) disciplining him based on the false assumption that he was
responsible for the theft and (2) not following their own policy, which, he alleges,
created a right to his pay grade, see 28 C.F.R. § 545.26(h) (“An inmate’s performance
pay, once earned, becomes vested.”).
At screening, see 28 U.S.C. § 1915A, the district court dismissed the complaint for
failure to state a claim because the Constitution did not provide Soule a protected
liberty or property interest in keeping his prison work assignment. To the extent Soule
traced a protected interest to a particular BOP Program Statement or federal regulation,
the court added, nothing in those provisions stated that an inmate had a vested interest
in a particular pay grade or work assignment.
On appeal Soule challenges the dismissal of his complaint based on BOP policy
and case law, without any consideration of facts that he believes would exculpate him
of any involvement in the theft of the onions. But the district court correctly concluded
that Soule lacks a liberty or property interest in his prison job and thus may not bring a
due process challenge to his prison-job reassignment. See Wilkinson v. Austin, 545 U.S.
209, 221 (2005). The Constitution does not give prisoners any substantive entitlements to
prison employment. See DeWalt v. Carter, 224 F.3d 607, 613 (7th Cir. 2000); Wallace v.
Robinson, 940 F.2d 243, 247 (7th Cir. 1991) (en banc); Serra v. Lappin, 600 F.3d 1191, 1196
(9th Cir. 2010); Bulger v. United States Bureau of Prisons, 65 F.3d 48, 49 (5th Cir. 1995).
And any asserted liberty interest based on the Bureau’s regulations is foreclosed
because Soule’s job reassignment does not impose “atypical and significant hardship”
on him relative to the “ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472,
484 (1995); Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996). Soule cannot rely
on § 545.26(h) as the source of a property interest because that regulation states only
that inmates have a vested right in pay that has been earned; it does not create a
legitimate claim of entitlement to “hold one job rather than another.” Wallace, 940 F.2d
at 246, 249; Johnson v. Rowley, 569 F.3d 40, 44 (2d Cir. 2009).
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