Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. Civil No. 88-0217.
Mansmann, Hutchinson and Van Dusen, Circuit Judges.
VAN DUSEN, Senior Circuit Judge.
Plaintiffs-appellants, Raymond Edward James and Daniel Carlton Freeland, inmates at the United States Penitentiary at Lewisburg, Pennsylvania, bring this suit which challenges the constitutionality of the Federal Bureau of Prisons' Inmate Financial Responsibility Program and argues that it was not enacted in accordance with the provisions of the Administrative Procedures Act, 5 U.S.C. § 500 et seq. Plaintiffs also argue on appeal that the district court erred by not ordering that they be provided with a copy of unpublished district court opinions that were cited in the magistrate's Report and Recommendation and later cited by the district court in its opinion.
Plaintiffs are both employed at the United States Penitentiary at Lewisburg, Pennsylvania, in Federal Prison Industries (UNICOR) job assignments. A Federal Prison Industries job assignment is an assignment within the prison's industrial location. 28 C.F.R. § 545.50 (1988). It is considered by many inmates to be more desirable than other types of work assignments, for example, institution work assignments, which are assignments that contribute to the day-to-day operation of the prison. 28 C.F.R. § 545.21(b) (1988). In 1987, the federal prison system adopted the Inmate Financial Responsibility Program, now codified at 28 C.F.R. §§ 545.10 and 545.11 (1988). This program provides for inmates to work with prison staff to develop a financial responsibility plan, with the goal of paying their court-ordered obligations.*fn1 The program provides that inmates who fail to demonstrate financial responsibility may not secure a UNICOR work assignment or receive performance pay above the maintenance pay level. The program also provides that "[a]n inmate already in a UNICOR work assignment or receiving performance pay who fails to make adequate progress on the financial plan will be considered for removal from UNICOR, or reduction to the maintenance pay level of performance pay." 28 C.F.R. § 545.11(c) (1988).
Plaintiffs contend that they were thereafter faced with a choice of signing an authorization which gave prison officials the authority to take fifty percent of their income and fifty percent of the moneys in their prison trust fund accounts attributable to their previous prison earnings, and apply it towards their financial obligations, or of losing their Federal Prison Industries job assignments. Plaintiffs signed the authorizations and brought suit in the United States District Court for the Middle District of Pennsylvania in forma pauperis, alleging that their due process rights were violated and that the Inmate Financial Responsibility Program was adopted in violation of the Administrative Procedures Act. The case was referred to a magistrate, who issued a report recommending dismissal of plaintiff's lawsuit pursuant to 28 U.S.C. § 1915(d) as frivolous. The report cited two unpublished district court decisions of the Middle District of Pennsylvania dismissing similar suits. Plaintiffs then moved for an extension of time to file objections until ten days after such time as they were provided copies of the two unpublished opinions cited in the magistrate's report. The district court granted plaintiffs a ten-day extension of time to file objections, but ruled that they would have to obtain the unpublished opinions themselves. Plaintiffs subsequently filed objections to the magistrate's report. The district court dismissed plaintiffs' complaint in an opinion filed May 26, 1988, which used as authority in part the two unpublished decisions cited in the magistrate's report. Plaintiffs now appeal.
Plaintiffs first argue that their Fifth Amendment right to due process of law was violated because they were forced to sign authorizations giving prison authorities the right to withhold fifty percent of their prison wages and apply it toward their obligations under threat of losing their Federal Prison Industries job assignments. To the degree that the federal prisons' Inmate Financial Responsibility Program required this, they assert it is unconstitutional.
In order for plaintiffs to state a cognizable claim that they were deprived of wages without due process of law, they must have either a liberty or a property interest in their Federal Prison Industries job assignments. A liberty interest in a prison condition can arise in two ways. It can arise from the Due Process Clause itself or from laws regulating the treatment of prisoners which use language of a mandatory character, such as the words "shall," "will" or "must," to restrict the freedom of prison authorities to make such decisions. Hewitt v. Helms, 459 U.S. 460, 466 & 469-72, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983).
The Supreme Court has held that "'as long as the conditions or degree of confinement to which . . . [a] prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight.'" Id. at 468 (quoting Montanye v. Haymes, 427 U.S. 236, 242, 49 L. Ed. 2d 466, 96 S. Ct. 2543 (1976)). 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. See generally Note, The Prisoner's Paradox: Forced Labor and Uncompensated Injuries, 10 New Eng. J. on Crim. & Civ. Confinement 123, 128-29 (1984); Banks v. Norton, 346 F. Supp. 917, 921 (D. Conn. 1972). Accordingly, we hold that plaintiffs have no liberty interest in their Federal Prison Industries job assignments arising directly from the Due Process Clause itself.
We turn then to see if a federal statute gives plaintiffs a liberty interest in their Federal Prison Industries job assignments through the use of the mandatory language found in Hewitt. We have found no statute that does so, nor have plaintiffs brought one to our attention. We also note that another circuit has found that federal statutes do not give prisoners a liberty interest in their employment. See Garza v. Miller, 688 F.2d 480, 484-86 (7th Cir. 1982), cert. denied, 459 U.S. 1150, 74 L. Ed. 2d 1000, 103 S. Ct. 796 (1983). ...