Soule, Luke v. Potts, M. et al

Filing 14

Transmission of Notice of Appeal,Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re 12 Notice of Appeal. (Attachments: # 1 Order, # 2 Judgment, # 3 Docket Sheet) (nln),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

LUKE J. SOULE,

v.

Plaintiff,

M. POTTS, F. MACKINNON, L.C. WARD,
SARA M. REVELL, and THOMAS R. KANE,

OPINION & ORDER
16-cv-100-jdp

Defendants.
Pro se plaintiff Luke J. Soule is a prisoner in the custody of the Federal Bureau of
Prisons (BOP), currently housed at the Oxford Federal Correctional Institution (FCI-Oxford).
Plaintiff alleges that BOP personnel wrongfully reassigned him from a Grade 1 work
assignment to a Grade 4 work assignment, without due process. The court determined that
plaintiff qualifies for in forma pauperis status, and plaintiff paid the initial partial filing fee set
by the court. Dkt. 4.
The next step is for me to screen plaintiff’s complaint and dismiss any portion that is
legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for
money damages from a defendant who by law cannot be sued for money damages. 28 U.S.C.
§§ 1915, 1915A. When screening a pro se litigant’s complaint, the court construes the
allegations liberally and in the plaintiff’s favor. McGowan v. Hulick, 612 F.3d 636, 640 (7th
Cir. 2010). For reasons discussed below, I will dismiss plaintiff’s complaint for failure to state
a claim upon which relief can be granted.

ALLEGATIONS OF FACT
I draw the following facts from plaintiff’s complaint. Dkt. 1.
Plaintiff used to work in FCI-Oxford’s vegetable prep room. On September 2, 2015,
his supervisor (not named as a defendant) told him that he was being reassigned to the
dining room. Defendants M. Potts, FCI-Oxford’s assistant food administrator, and
F. Mackinnon, FCI-Oxford’s food administrator, made the reassignment. When plaintiff
asked defendant Potts why he had reassigned him, he said it was because a correctional
officer found onions in the dining room (i.e., someone had stolen the onions). Plaintiff tried
to explain that he had nothing to do with the onions, and defendant Potts responded that he
did not know which of the six vegetable prep room workers were responsible for the theft so
he had decided to reassign all of them. Plaintiff asked if he was going to be able to keep his
Grade 1 pay, but defendant Potts informed him that he would not; he would be demoted to
Grade 4 pay.
Plaintiff filed an administrative complaint. Defendant L.C. Ward, FCI-Oxford’s
warden, denied plaintiff’s requested relief. Plaintiff appealed the decision, and defendant Sara
M. Revell, BOP regional director, affirmed the warden’s response. She explained to plaintiff
that institution staff have the discretion to make inmate job assignments and that he is not
entitled to any specific job assignment.
Plaintiff claims that the reassignment amounts to a disciplinary action, imposed based
on an assumption and without due process. He also claims that the decision violated BOP
policy 5251.06, which provides that an inmate’s performance pay, once earned, becomes
vested.

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ANALYSIS
Plaintiff brings a Fifth Amendment procedural due process claim against defendants,
pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). 1 “In Bivens the Supreme Court recognized an implied cause of action for damages
against federal officers to redress a constitutional violation[.]” Engel v. Buchan, 710 F.3d 698,
703 (7th Cir. 2013). Assuming, for purposes of screening, that plaintiff has a cause of action
under Bivens, his allegations nevertheless do not identify a constitutional violation.
“Procedural due process imposes constraints on governmental decisions which deprive
individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of
the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). To
state a procedural due process claim, plaintiff must allege that defendants deprived him of
some protected liberty or property interest. Cognizable liberty or property interests may arise
from the Constitution, state statutes, or “duly promulgated prison regulations.” Garza v.
Miller, 688 F.2d 480, 485-86 (7th Cir. 1982) (citation omitted).
The Constitution itself does not afford plaintiff a protected liberty or property interest
in keeping his Grade 1 work assignment. DeWalt v. Carter, 224 F.3d 607, 613 (7th Cir.
2000) (“[N]either Illinois law nor the Due Process Clause itself affords prisoners a liberty or
property interest in their jobs.”); Bulger v. U.S. Bureau of Prisons, 65 F.3d 48, 50 (5th Cir.
1995) (“Courts of appeals consistently have held that an inmate’s expectation of keeping a
specific prison job, or any job, does not implicate a protected property interest.” (citing

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Plaintiff cannot proceed under 42 U.S.C. § 1983 because defendants are federal, not state,
actors. 42 U.S.C. § 1983; London v. RBS Citizens, N.A., 600 F.3d 742, 746 (7th Cir. 2010)
(stating that Ҥ 1983 actions may only be maintained against defendants who act under color
of state law”).

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cases)); James v. Quinlan, 866 F.2d 627, 629 (3d Cir. 1989) (“Incarceration without being
assigned a job is within the sentence imposed upon plaintiffs and there is no indication that
it is here otherwise violative of the Constitution. Accordingly, we hold that plaintiffs have no
liberty interest in their Federal Prison Industries job assignments arising directly from the
Due Process Clause itself.” (internal citations omitted)). And so plaintiff must hope that BOP
regulations endow inmates with a cognizable liberty or property interest in keeping particular
work assignments.
The Seventh Circuit has held that when prison officials are afforded a fair amount of
discretion when making work assignments, an inmate does not have a protected liberty or
property interest in the assignment. “Only statutes or rules attaching consequences to
particular circumstances give prisoners liberty or property interests.” Wallace v. Robinson, 940
F.2d 243, 246 (7th Cir. 1991). A prison regulation must afford an inmate a legitimate claim
of entitlement before it creates a constitutional liberty or property interest. Id. When prison
personnel may move a prisoner from one job to another for just about any reason, “[a]ny
prisoner’s interest in the job-of-preference is ‘meager, transitory, [and] uncertain.’” Id. at 247.
“A prisoner whose job assignment may be changed for any reason lacks such a substantive
interest, even if the state has promised elaborate procedures before using a particular reason
(misconduct) as the basis of action.” Id. at 248.
Plaintiff cites BOP Program Statement 5251.06, Inmate Work and Performance Pay,
as the source of his protected interest. The program statement, which incorporates the
applicable federal regulations, provides that “to the extent practicable,” all physically and
mentally able inmates will participate in an institution’s work program. 28 C.F.R.
§ 545.20(a). And, “to the extent practicable,” an institution’s warden “may recognize an

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inmate’s work performance or productive participation in specified correctional programs by
granting performance pay.” Id. § 545.20(b). An institution’s Inmate Work and Performance
Pay Committee sets the number of pay grades in each work detail, performance standards,
and other aspects of the program. Id. § 545.22(b). When making work assignments, staff
consider “the inmate’s capacity to learn, interests, requests, needs, and eligibility, and the
availability of the assignment(s).” Id. § 545.23(d). And staff consider the institution’s security
and operational needs. Id. All provisions governing performance pay (i.e., pay grades above
Grade 4) indicate that an inmate may receive performance pay in certain situations. Id.
§ 545.25. The regulations also provide that “[a]n inmate’s performance pay, once earned,
becomes vested.” Id. § 545.26(h). This provision does not mean that an inmate has a vested
interest in a particular pay rate or position. This does not mean that an inmate may never
receive new work assignments with lower pay grades. Although staff may not discriminate
against an inmate on the basis of race, religion, sex, national origin, disability, or political
belief, nothing in the program statement or the regulations indicate that an inmate may be
entitled to a certain work assignment or a particular pay grade.
Plaintiff has failed to identify a protected liberty or property interest in a work
assignment that receives Grade 1 pay. Because “Congress has given federal prison officials full
discretion to control these conditions of confinement, . . . petitioner has no legitimate
statutory or constitutional entitlement to invoke due process[,]” Garza, 688 F.2d at 486, and
any expectation that plaintiff might have had of keeping his Grade 1 work assignment does
not amount to a protected liberty or property interest. Plaintiff has not stated a Fifth
Amendment procedural due process claim.

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ORDER
IT IS ORDERED that:
1. Plaintiff Luke J. Soule’s case is DISMISSED for failure to state a claim upon
which relief can be granted.
2. The clerk of court is directed to close this case and assess plaintiff a strike under
28 U.S.C. § 1915(g).
Entered July 13, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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