Johnson v. Rowley, Docket No. 07-2213-pr.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Per Curiam
• Citation: 569 F.3d 40
• Parties: Neil JOHNSON, Plaintiff-Appellant, v. M. ROWLEY, in his official and individual capacity, Defendant-Appellee.
• Docket Number: Docket No. 07-2213-pr.
• Decision Date: 11 June 2009

569 F.3d 40 Neil JOHNSON, Plaintiff-Appellant,
v.
M. ROWLEY, in his official and individual capacity, Defendant-Appellee. Docket No. 07-2213-pr. United States Court of Appeals, Second Circuit. Submitted: May 20, 2009. Decided: June 11, 2009.

[569 F.3d 42]

Neil Johnson, pro se, Otisville, N.Y., Plaintiff-Appellant.

Matthew L. Schwartz, Assistant United States Attorney (Elizabeth Wolstein, Assistant United States Attorney, on the brief), for Lev L. Dassin, Acting United States Attorney for the Southern District of New York, New York, N.Y., for Defendant-Appellee.

Before: MINER, KATZMANN, and RAGGI, Circuit Judges.

PER CURIAM:

This case calls upon us to determine principally whether an inmate in a federal correctional institution has a constitutionally protected property interest in his prison job assignment. Plaintiff-appellant Neil Johnson appeals from a judgment of the United States District Court for the Southern District of New York (Brieant, J.) entered on March 7, 2007, adopting the Report and Recommendation ("R & R") of Magistrate Judge Mark D. Fox insofar as it recommended dismissing the first, second, and fourth claims pleaded in the complaint. The district court dismissed the third claim pleaded in the complaint without prejudice.

Johnson was an inmate in the Federal Correctional Institution in Otisville, New York, and he was employed as a clerk by Federal Prison Industries, Inc. ("UNICOR"),¹

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under the supervision of defendant-appellee Michael Rowley, at the time that the incident giving rise to this action occurred. According to his complaint, one of Johnson's primary tasks as a clerk was to type; because his "skills were very rusty" when he first started in the UNICOR program, Johnson would practice typing daily. On January 9, 2004, Johnson worked overtime in the UNICOR office. After he completed his assigned task, Johnson practiced his skills by typing a letter to his wife using various fonts and pitches. He then printed the letter out and mailed it to his wife to show her how his skills had developed. Prison officials questioned Johnson about where and why he had typed the letter. When Johnson reported for work on January 12, 2004, Rowley terminated his employment, apparently because Johnson had engaged in the unauthorized personal use of UNICOR equipment by typing the letter to his wife.

Johnson filed the complaint in this action on April 12, 2005, raising four claims: (1) Rowley violated Johnson's due process rights when he terminated his employment because Rowley acted in violation of Bureau of Prisons ("BOP") policy; (2) Rowley violated Johnson's due process rights when he terminated his employment because Rowley and Johnson had an implied agreement and because Johnson's use of the equipment fell within an exception to the unauthorized-use rule; (3) Rowley violated Johnson's First Amendment rights because Johnson's termination was based on Rowley's personal animus towards members of the Islamic faith; and (4) Rowley violated the Religious Freedom Restoration Act of 1993 ("RFRA") when he terminated Johnson's employment. Johnson sought compensatory damages, declaratory and injunctive relief, and punitive damages.

Rowley moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(c). In his R & R, Magistrate Judge Fox dismissed Johnson's first due process claim after Johnson withdrew it. Regarding the second due process claim, Judge Fox assumed arguendo that Johnson had a property interest in his UNICOR employment but nonetheless dismissed the claim because the parties did not have an implied agreement. Further, he dismissed the RFRA claim because Johnson failed to exhaust his administrative remedies. Judge Fox, however, denied Rowley's motion with respect to Johnson's First Amendment claim. The district court adopted the R & R as its own decision insofar as it recommended dismissing Johnson's due process and RFRA claims. In addition, the district court dismissed Johnson's First Amendment claim on the ground that Johnson had failed to exhaust his administrative remedies. On appeal, Johnson challenges the district court's dismissal of (1) his due process claim that Rowley terminated his employment in violation of an implied agreement and (2) his First Amendment claim.

A. Due Process Claim

We review a district court's dismissal pursuant to Fed.R.Civ.P. 12(c) de novo, employing "the same ... standard applicable to dismissals pursuant to Fed. R.Civ.P. 12(b)(6)." Morris v. Schroder Capital Mgmt. Int'l, 445 F.3d 525, 529 (2d Cir.2006) (internal quotation marks omitted). Thus, we will accept all factual allegations in the complaint as true and draw all reasonable inferences in Johnson's favor. See ATSI Commc'ns, Inc. v. Shaar

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Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). To survive a Rule 12(c) motion, Johnson's "complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955...