                         IN THE COURT OF APPEALS
7/29/97


                                   OF THE


                            STATE OF MISSISSIPPI




                             NO. 95-CA-01086 COA




PHILLIP STOKES

APPELLANT


v.


STEWART MURPHY, EDWARD HARGETT,

TYRUS SHIVERS, AND LYNETTE CRISS

APPELLEES




            THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND


                 MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B



TRIAL JUDGE: HON. SHIRLEY C. BYERS

COURT FROM WHICH APPEALED: CIRCUIT COURT OF SUNFLOWER COUNTY

ATTORNEY FOR APPELLANT:
PRO SE

ATTORNEY FOR APPELLEES:

JAMES M. NORRIS

NATURE OF THE CASE: CIVIL--ACTION BROUGHT BY PRISON INMATE AGAINST
PRISON PERSONNEL TO BE REINSTATED TO HIS EMPLOYMENT POSITION AS A
CANTEEN OPERATOR

TRIAL COURT DISPOSITION: ACTION DISMISSED BY TRIAL COURT

MOTION FOR REHEARING FILED:8/6/97

CERTIORARI FILED: 10/20/97

MANDATE ISSUED: 2/23/98


BEFORE BRIDGES, C.J., COLEMAN AND PAYNE, JJ.

COLEMAN, J., FOR THE COURT:

Phillip Stokes appeals from an order of the Circuit Court of Sunflower County which dismissed his
complaint filed against Edward M. Hargett, then Superintendent of the Mississippi State Penitentiary
at Parchman (Parchman), J. Stewart Murphy, then Commissioner of Corrections, Tyrus Shivers, the
Penitentiary Unit Administrator, and Lynette Criss, then the Penitentiary Case Manager. Stokes
claimed that one or more of these four defendants, as members of the administration at Parchman,
had dismissed him from his job as a prison canteen operator in Unit 15-A. Stokes claimed that he had
a liberty interest in his employment as a canteen operator in Unit 15-A. Perhaps as an effort to
buttress his liberty interest in his work assignment as canteen operator, Stokes claimed that his loss of
his assignment as canteen operator adversely affected his opportunity to obtain parole. Pursuant to
Sandin v. Conner, 115 S. Ct. 2293 (1995) and Orellana v. Kyle, 65 F.3rd 29 (5th Cir. 1995), we find
that Stokes had no liberty interest in his work classification as a canteen operator. Thus, this Court
affirms the circuit court's dismissal of Stokes' complaint.

                                                I. Facts

On March 22, 1993, the Mississippi Department of Corrections Classification Committee
(classification committee), acting through Christopher Epps, the classification director, approved
Stokes for the job of Unit 15-A canteen operator. Sometime later, the classification committee
reviewed Stokes' work assignment, after which it re-assigned him to unit support. Stokes' re-
assignment to unit support terminated his work assignment as canteen operator.

                                             II. Litigation

Stokes' complaint filed in the case sub judice is the second complaint which he filed in the Circuit
Court of Sunflower County about the loss of his job assignment as canteen operator. The sparse
record in the case sub judice contains an order adopting findings and recommendations of magistrate
rendered on July 19, 1994, and entered in Cause No. 93-3952(D)(S) by the circuit judge in which he
approved and adopted the findings and recommendations of the magistrate for the Fourth Circuit
Court District and ordered that Cause No. 93-3952(D)(S) be dismissed "without prejudice." Stokes
then filed the complaint which is the source of this litigation in Cause No. 95-0138 of the Circuit
Court of Sunflower County on April 14, 1995. The defendants answered Stokes' complaint and
asserted the affirmative defenses that Stokes' complaint failed to state a claim and that the defendants
were immune.

On September 18, 1995, the circuit judge conducted a hearing in this case.(1) Several matters became
the subjects of this hearing, including Stokes' unsuccessful attempt to appeal in forma pauperis to the
Mississippi Supreme Court from the July 19, 1994 order of the Sunflower County Circuit Court. The
Mississippi Supreme Court denied Stokes' appeal in forma pauperis. After the hearing had
concluded, the circuit judge entered an order which dismissed Stokes' claim "without prejudice." In
this order, the circuit judge found that "[i]nmates have no right to a particular job, and prison officials
have discretion in assigning prisoners to their work assignments." Stokes has appealed from this
order.

                             III. Review and resolution of Stokes' issues

Stokes argues two issues in his appeal. We recite them as he composed them in his brief:

I. The Circuit Court Judge erred in dismissing the plaintiff['s] complaint upon a motion to dismiss
incorporated into the answer of the defendants[] and renewed ore tenus at the hearing.


II. Whether the Circuit Court singled Appellant Stokes out of the State Systematic Safeguard of his
constitutionally guaranteed rights by dismissing his complaint.


This Court finds that Stokes second issue is a "non-issue." First of all, he cites the First, Seventh, and
Fourteenth Amendments, but no cases to explicate their relevance to this issue. Instead, he complains
in his argument on this issue about what he perceives to have been preferential treatment of three
other inmates at Parchman by the Sunflower County Circuit Court, one of whom, Tolbert, also lost
his job classification as a canteen operator in Unit 15-A. In Tolbert's case, the magistrate
"recommended" that Tolbert be given a full review by a classification committee, which should
consider reassigning Tolbert as a canteen operator in Unit 15 or any other unit should such other
position become available. The magistrate did not order that anything be done in Tolbert's case. Even
had the magistrate ordered any form of relief for Tolbert, his case would not necessarily determine
our resolution of the case sub judice. Thus, we decline to consider this issue further.

In his first issue, Stokes argues that the allegations in his complaint stated a claim that was sufficient
to survive dismissal. The Appellees counter, inter alia, that Sandin v. Conner, 515 U.S. 472 (1995),
and Orellana v. Kyle, 65 F.3rd 29 (5th Cir. 1995), support the circuit court's dismissal of Stokes'
complaint. We begin our review of this issue by noting that Sections 47-5-99 through 47-5-104 of
the Mississippi Code of 1972 create the classification committees of Mississippi's correctional system
and specify their powers and duties. Section 47-5-103 provides:

The committees shall be responsible for assigning a classification to each offender within forty (40)
days after the offender's commitment to the custody of the department. The classification shall
determine the offender's work duties, living quarters, educational, vocational or other rehabilitation
programs, and privileges to be accorded the offender while in custody of the department. The
committees, in assigning classifications, shall consider the offender's age, offense and surrounding
circumstances, the complete record of the offender's criminal history including records of law
enforcement agencies or of a youth court regarding that offender's juvenile criminal history, family
background, education, practical or employment experience, interests and abilities as evidenced by
mental and psychological examination and knowledge obtained by the committee in personal interview
with the offender. The committees shall use the above criteria to assign each offender a classification
which will serve and enhance the best interests and general welfare of the offender. The committees
shall provide the State Parole Board with a copy of the classification assigned to each offender in the
custody of the department who is eligible for parole.


No classification may be changed by any individual or individuals, and may be altered by the action of
a committee and entry of the action on the minutes. The classification board, consisting of the
commissioner, or designee, deputy commissioner of institutions and the director of offender services
may change an action of the committee if the board makes a determination that the action of the
committee was not supported by sufficient factual information. . . . The classification of each offender
may be reviewed by a classification committee at least once each year.


The committees shall establish substantive and procedural rules and regulations governing the
assignment and alteration of inmate classifications, and shall make such rules and regulations available
to any offender upon request.


Miss. Code Ann. § 47-5-103 (Rev. 1993).

Section 47-5-104 then provides: "Duties of the classification committee shall also include the hearing
of evidence and the making of decisions in all cases whereby an offender is subject to be demoted or
having earned time taken from him." Miss. Code Ann. § 47-5-103 (Rev. 1993). This Court quotes at
length from these two sections to demonstrate that the legislature has established neither
requirements nor standards in accordance with which the classification committees must classify
offenders. Instead, the legislature has vested the classification committees with discretion in their
exercise of their duties to classify the offenders' "work duties . . . while in custody of the
department."

In Sandin v. Conner, 115 S. Ct. 2293 (1995), Demont Conner, a prisoner in the state of Hawaii,
brought a civil rights action against prison officials to challenge their imposition of disciplinary
segregation for his misconduct. Writing for the majority of the Supreme Court, Chief Justice
Rehnquist opined:

The time has come to return to the due process principles we believe were correctly established and
applied in Wolff [v. McDonnell, 418 U.S. 539] and Meachum [v. Fano, 427 U.S. 215]. Following
Wolff, we recognize that States may under certain circumstances create liberty interests which are
protected by the Due Process Clause. See also Board of Pardons v. Allen, 482 U.S. 369 . . . (1987).
But these interests will be generally limited to freedom from restraint which, while not exceeding the
sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its
own force, see, e.g., Vitek, 445 U.S., at 493, 100 S.Ct., at 1263-1264 (transfer to mental hospital),
and Washington, 494 U.S., at 221-222, 110 S.Ct., at 1036-1037 (involuntary administration of
psychotropic drugs), nonetheless imposes atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.


Id. at 2300. While the majority opinion allowed that "prisoners do not shed all constitutional rights at
the prison gate," "[l]awful incarceration brings about the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the considerations underlying our penal system." Id. at
2301 (citations omitted). The majority opinion then concluded:

We hold, therefore, that neither the Hawaii prison regulation in question, nor the Due Process Clause
itself, afforded Conner a protected liberty interest that would entitle him to the procedural protections
set forth in Wolff.


Id. at 2302.

The United States Court of Appeals for the Fifth Circuit has interpreted Sandlin to mean that it is
difficult to see "any . . . deprivations in the prison context, short of those that clearly impinge on the
duration of confinement, [which] will henceforth qualify for constitutional 'liberty' status." Orellana
v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995) (emphasis added). Indeed, even before Sandin, the Fifth
Circuit had been much more explicit, holding that under Mississippi law, "the classification of inmates
is the responsibility of the [Mississippi] Department of Corrections and an inmate has no right to a
particular classification." Tubwell v. Griffith, 742 F.2d 250, 253 (5th Cir. 1984).

Stokes seeks to force his work assignment as canteen operator within Sandin's definition of a
"legitimate liberty interest" by contending that his continued employment as a canteen operator would
have insured that he would have been granted parole sooner.(2) Thus, Stokes attempts to transform
the termination of this employment into a deprivation that "clearly impinge[s] on the duration of
confinement." Orellana, 65 F.3d at 31-32. Such an attempt, however, must fail. First of all, the
United States Supreme Court addressed this issue in Sandin when the majority opined:

Nor does Conner's situation present a case where the State's action will inevitably affect the duration
of his sentence. Nothing in Hawaii's code requires the parole board to deny parole in the face of a
misconduct record or to grant parole in its absence . . . even though misconduct is by regulation a
relevant consideration. The decision to release a prisoner rests on a myriad of considerations. . . . The
chance that a finding of misconduct will alter the balance is simply too attenuated to invoke the
procedural guarantees of the Due Process Clause. The Court rejected a similar claim in Meachum, 427
U.S., at 229, n. 8, 96 S.Ct., at 2540 (declining to afford relief on the basis that petitioner's transfer
record might affect his future confinement and possibility of parole).
Sandin, 115 S. Ct. at 2302. Both the Mississippi Supreme Court in Harden v. State, 547 So. 2d
1150, 1152 (Miss. 1989), and the Fifth Circuit in Scales v. Mississippi State Parole Board, 831 F.2d
565, 566 (5th Cir. 1987), have concluded that Section 47-3-3 of the Mississippi Code of 1972,(3) the
section of the code which delineates the authority and procedures of the parole board, vests absolute
discretion in the parole board to determine when and if a prisoner eligible for parole will be so
released and that this absolute discretion means that a prisoner is afforded no constitutionally
protected liberty interest in a parole determination. In the face of such precedent, Stokes' contention
that his continued employment as a canteen operator would have resulted in his early release on
parole and that the loss of this employment resulted in the prevention of his early release clearly fails
to provide a valid ground upon which to premise a claim for deprivation of due process.

This Court concludes from its review of the foregoing authorities that Stokes' job as a canteen
operator did not qualify as a legitimate liberty interest which entitled him to any sort of procedural
due process. This Court interprets the circuit court's finding in its order of dismissal that "[i]nmates
have no right to a particular job, and prison officials have discretion in assigning prisoners to their
work assignments" as tantamount to its declaration that Stokes had no liberty interest in his work
assignment as canteen operator at Unit 15-A. Thus, we conclude that the circuit court did not err
when it dismissed without prejudice Stokes' complaint, and we affirm its order of dismissal.

THE ORDER OF DISMISSAL OF THE SUNFLOWER COUNTY CIRCUIT COURT IS
AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.


BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., DIAZ, HERRING, KING, PAYNE, AND
SOUTHWICK, JJ., CONCUR. HINKEBEIN, J., NOT PARTICIPATING.

1. The office of the magistrate for the Fourth Circuit Court District to which the circuit judge
referred in the order which he rendered on July 19, 1994, was created by Section 9-7-18 of the
Mississippi Code of 1972, which became effective from and after July 1, 1989. Section 9-7-18 was
repealed from and after January 1, 1995; but Section 9-7-17 of the Mississippi Code of 1972 was
simultaneously amended from and after September 6, 1994, the date the United States Attorney
General interposed no objection to its amendment, to provide that four circuit judges should be
elected for the Fourth Circuit Court District. Thus, a fourth circuit judge replaced the magistrate for
the Fourth Circuit Court District.

2. The record indicates that Stokes became eligible for consideration for parole on May 11, 1996.

3. Section 47-3-3 of the Mississippi Code states in pertinent part:


(1) Every prisoner who has been or may hereafter be convicted of any offense against the State of
Mississippi, and is confined in the execution of judgment of such conviction in the Mississippi State
Penitentiary . . . may be released on parole as hereinafter provided . . . .

Miss. Code Ann. § 47-7-3 (Rev. 1993) (emphasis added).
