                                                            F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                           October 18, 2005
                         FOR THE TENTH CIRCUIT
                                                             Clerk of Court

JIMMY PHILLIPS,

            Plaintiff-Appellant,

                                        Nos. 04-6358 & 04-6382
 v.                                     (D.C. No. CV-03-295-M)
                                              (W.D. Okla.)
REGINALD HINES,
individually and in his official
capacity; SUSAN MILAN,
individually and in her official
capacity as Health Services
Administrator; BARBARA WILSON,
individually and in her
official capacity as Unit Manager;
FELIX KELLY, individually
and in his official capacity as Unit
Manager; TONITA TAYLOR,
individually and in her official
capacity as Administrative
Officer; JIM RABON, Director’s
Sentencing Authority Designee; RON
WARD, Director; CECELIA
STEPHENS, individually and in her
official capacity as Food Supervisor,

            Defendants-Appellees;

and

OKLAHOMA DEPARTMENT OF
CORRECTIONS,

            Defendant.
                            ORDER AND JUDGMENT            *




Before EBEL , HARTZ , and McCONNELL , Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff-appellant Jimmy Phillips is a prisoner of the State of Oklahoma

proceeding pro se. He brought this suit under 42 U.S.C. § 1983, asserting various

violations of his civil rights. He appeals from the district court’s decisions

granting defendants’ motion to dismiss or for summary judgment on all of his

claims (No. 04-6358), and from the district court’s denial of his motion to

proceed on appeal in forma pauperis (IFP) (No. 04-6382).

       Plaintiff asserted six claims for relief: (1) defendants violated his rights

under the Eighth Amendment by assigning him to a kitchen job, which aggravated

his chronic medical conditions, when defendants knew that he was medically



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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restricted from doing kitchen work; (2) defendants conducted plaintiff’s February

2003 adjustment review in violation of Oklahoma Department of Corrections

(DOC) policy and the United States Constitution; (3) defendants violated his right

to due process of law by revoking 169 earned credits and causing him to be

incarcerated past his release date; (4) defendants improperly convicted him in a

disciplinary proceeding, without evidence, of the offense of bartering;

(5) defendants violated his right to equal protection with respect to the bartering

conviction, in that other inmates who had committed a similar offense were

treated differently; and (6) defendants violated his rights under the First and

Fourteenth Amendments by denying his request to correspond with another inmate

(his cousin) without a written statement of reasons.

      Defendants Hines, Milan, Wilson, Kelly, Taylor, and Stephens filed a

motion to dismiss or for summary judgment.     1
                                                   R., Doc. 31. The magistrate judge

thoroughly reviewed plaintiff’s claims and issued a recommendation setting out

the reasons why he believed that they should be rejected. He recommended that

plaintiff’s claims against these six defendants in their official capacity be

dismissed as barred by Eleventh Amendment immunity.          Id. , Doc. 69, at 4. He

further recommended that these defendants were entitled to summary judgment on



1
      The Oklahoma Department of Corrections was never served and did not
appear below.

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the subjective element of Count I because plaintiff failed to produce “evidence

showing that Defendants knew that kitchen work posed a substantial risk of harm

or that Defendants disregarded that risk.”       Id. at 12. The magistrate judge stated

that plaintiff had no constitutional right either to be classified so that he could

earn good time credits or to compel defendants to follow DOC policy, so Count II

should be dismissed for failure to state a claim.      Id. at 5-6. The magistrate judge

recommended that the six defendants who were parties to the motion to dismiss or

for summary judgment were entitled to summary judgment on Count III because

plaintiff failed to allege that they were personally responsible for the revocation

of the credits.   Id. at 14. The magistrate judge recommended that Counts IV and

V necessarily implied the invalidity of plaintiff’s disciplinary conviction and

therefore should be dismissed without prejudice because plaintiff failed to show

that his conviction had been reversed, expunged, or declared invalid.        Id.

at 15-16. The magistrate judge recommended that these six defendants were

entitled to summary judgment on Count VI because plaintiff failed to show a

protected liberty interest in corresponding with another inmate.        Id. at 17-18. The

district court adopted the magistrate judge’s recommendation in full in the

amended order filed on April 8, 2004.        Id. , Doc. 86.

       The magistrate judge considered separately the motion by defendants Ward

and Rabon for summary judgment and plaintiff’s motion for partial summary


                                              -4-
judgment on his claims related to the alleged improper revocation of earned

credits. Id. , Docs. 108, 110. The magistrate judge recommended that defendants

Ward and Rabon be granted summary judgment based on qualified immunity,                id. ,

Doc. 119, at 9, and that plaintiff’s motion be denied,     id. at 17. The magistrate

judge stated that even though it was undisputed that plaintiff’s earned credits

were revoked in a procedurally flawed process, the credits were later restored and

plaintiff was therefore not “deprived . . . of any liberty interest protected by the

due process clause.”       Id. at 10, 13-14. Further, the postponement of his parole

hearing due to the loss of earned credits did not support a due process claim,         id.

at 14, and plaintiff had no liberty interest in erroneously awarded credits,     id.

at 15-16. The district court adopted the magistrate judge’s recommendation.            Id. ,

Doc. 129.

       We have reviewed the parties’ materials in light of the record on appeal and

the applicable law.    2
                           Plaintiff’s arguments challenge the magistrate judge’s

conclusions, but do not challenge the magistrate judge’s reasoning in any



2
      We caution plaintiff that the practice of incorporating materials by
reference is disfavored in this court and could result in the waiver of his
arguments. See Gaines-Tabb v. ICI Explosives, USA, Inc.      , 160 F.3d 613, 623-24
(10th Cir. 1998). Plaintiff adopted by reference the statement of the case in the
magistrate judge’s Report and Recommendation–“so as to not burden this
Honorable Court with academic reading perusal.” Aplt. Br. at 1. Plaintiff should
have fully set out his statement of the case in his opening brief.


                                              -5-
meaningful way. His arguments are in fact frivolous. This court must dismiss an

in forma pauperis appeal if it determines that the appeal is frivolous. 28 U.S.C.

§ 1915(e)(2)(B)(i); see also Stafford v. United States , 208 F.3d 1177, 1179 n.4

(10th Cir. 2000) (citing 28 U.S.C. § 1915(e)(2)(B)). An appeal is frivolous if “it

lacks an arguable basis in either law or fact.”    Thompson v. Gibson , 289 F.3d

1218, 1222 (10th Cir. 2002). We hold that this appeal is frivolous, and it is

therefore dismissed. Plaintiff’s motion to proceed IFP on appeal in No. 04-6358

is denied, see Coppedge v. United States , 369 U.S. 438, 446 (1962), and the

district court’s order denying IFP that plaintiff appeals in No. 04-6382 is

affirmed. Plaintiff’s motion to correct and/or clarify our December 16, 2004

order regarding fee assessments is denied.

       The appeal designated No. 04-6358 is DISMISSED. This dismissal counts

as a strike under 28 U.S.C. § 1915(g). The district court order appealed in

No. 04-6382 is AFFIRMED. Plaintiff is reminded that he remains obligated to

make partial payments to this court until the entire appellate filing fee is paid in

accordance with 28 U.S.C. § 1915(b). The mandate shall issue forthwith.



                                                       Entered for the Court



                                                       Michael W. McConnell
                                                       Circuit Judge

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