United States District Court, D. Colorado
ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS
ROBERT E. BLACKBURN, District Judge.
The matter before me is Defendant Klein's Motion for Judgment on the Pleadings [#86] filed March 30, 2015. The plaintiff did not file a response. I grant the motion.
I have jurisdiction over the parties and subject matter of this litigation. My jurisdiction arises under 28 U.S.C. § 1331 (federal question).
II. STANDARD OF REVIEW
The defendant seeks entry of judgment in his favor under FED. R. CIV. P. 12(c). A motion for judgment on the pleadings is evaluated under the same standard as a motion to dismiss for failure to state a claim under FED. R. CIV. P. 12(b)(6). Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n. 2 (10th Cir. 2002).
When ruling on a motion to dismiss under FED. R. CIV. P. 12(b)(6), I must determine whether the allegations of the complaint are sufficient to state a claim within the meaning of FED. R. CIV. P. 8(a). I must accept all well-pleaded allegations of the complaint as true. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 997 (10th Cir. 2002). "However, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." I review the complaint to determine whether it "contains enough facts to state a claim to relief that is plausible on its face.'" Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Id. (emphases in original). Nevertheless, the standard remains a liberal one, and "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Dias v. City and County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quoting Twombly, 550 U.S. at 556) (internal quotation marks omitted).
When this case was filed, the plaintiff, Kevin Williams, was an inmate at the United States Penitentiary in Florence, Colorado. On January 29, 2015, Mr. Williams was released to a residential re-entry program. The defendant, Captain Klein, is a member of the correctional staff at the penitentiary where Mr. Williams was incarcerated.
The claims remaining in this case include: (1) a Fifth Amendment due process claim; and (2) a First Amendment retaliation claim. Mr. Williams seeks an award of damages and injunctive relief on his due process claim and injunctive relief only on his First Amendment retaliation claim. In a previous order [#67], I dismissed any claim for damages tied to the First Amendment claim.
Given the release of Mr. Williams from the United States Penitentiary in Florence, Colorado, Mr. Klein contends any claim for injunctive relief now is moot. I agree. An injunction restraining Mr. Klein from engaging in the type of misconduct alleged by Mr. Williams would provide no appreciable relief to Mr. Williams because Mr. Williams no longer has any contact with Mr. Klein in a prison setting. "(W)hen a prisoner is released from prison, there is no longer a substantial controversy between the former inmate and prison officials of sufficient immediacy and reality to warrant the issuance of either injunctive or declaratory relief." Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997) ( citing Inmates v. Owens, 561 F.2d 560, 562 (4th Cir.1977)). All claims for injunctive relief asserted by Mr. Williams must be dismissed.
Turning to the damages aspect of the Fifth Amendment due process claim, Mr. Klein contends this claim must be dismissed because Mr. Williams has not alleged facts showing that he suffered an actionable deprivation of liberty or property imposed by Mr. Klein. In addition, Mr. Klein asserts that such a Fifth Amendment due process claim is not cognizable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The allegations against Mr. Klein are contained primarily on page 12 of the Amended Prisoner Complaint [#21]. Mr. Williams alleges that Mr. Klein placed Mr. Williams in the special housing unit (SHU) for no reason other than to try to scare Mr. Williams in an effort to get Mr. Williams to stop filing administrative grievances. Mr. Williams alleges also that Mr. Klein threatened the UNICOR job of Mr. Williams.
"To invoke the protections of procedural due process, a plaintiff must establish the existence of a recognized property or liberty interest." Setliff v. Memorial Hosp. of Sheridan County, 850 F.2d 1384, 1394 (10th Cir. 1988) (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972)). In part, the due process claim of Mr. Williams is based on his placement in the SHU. Prison inmates do not have a protected liberty interest in their prison classification or assignment unless a particular classification or assignment "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). Only prison classifications or assignments which impose severely restrictive conditions for long periods of time potentially implicate a protected liberty interest. Wilkinson v. Austin, 545 U.S. 209, 224 (2005). Mr. Williams does not allege that he was exposed to such a classification or assignment by Mr. Klein. Therefore, the allegations of Mr. Williams do not state a due process claim to the extent that claim is based on his placement in the SHU.
In some circumstances, a job can constitute a constitutionally protected property or liberty interest. However, "(t)he Constitution does not create a property or liberty interest in prison employment." Ingram v. Papalia, 804 F.2d 595, 596 (10th Cir. 1986). In certain specific conditions, applicable regulations or other law can create a protected liberty or property interest. See, e.g., Sandin v. Conner, 515 U.S. 472, 483-486 (1995). With very few exceptions, prison inmates have no protected liberty or property interest in their job. See, e.g., Johnson v. Rowley, 569 F.3d 40, 44 (2nd Cir. 2009) (federal prisoner has no protected property interest in UNICOR job assignment). Nothing in the complaint of Mr. Williams indicates that he had a liberty or property interest in his prison job. Further, there is no allegation that Mr. Klein deprived Mr. Williams of his prison job. With no allegations to support the contention that Mr. Williams had a protected ...