                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         OCT 15 2004
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 ROBERT R. ZIEGLER,

               Plaintiff-Appellant,                     No. 04-6166
          v.                                         (W.D. Oklahoma)
 BILL WHITNEY, in his individual                 (D.C. No. CIV. 03-677-C)
 and official capacity as owner or
 manager of Unit Parts; UNIT PARTS
 COMPANY; JOHN DOE, unknown
 owners and/or managers of Unit Parts
 Company; RENEE WATKINS, in her
 individual and official capacity as
 Warden; L. VANDEVER, in his
 individual and official capacity as
 Grievance Officer; CORRECTIONS
 CORPORATION OF AMERICA; and
 JOHN DOE, unknown defendants,

               Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges. **


      *
        This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3.

      **
        After examining the briefs and appellate record, this panel has
determined unanimously to decide this case on the briefs without oral argument.
                                                                     (continued...)
       Robert R. Ziegler, a state prisoner proceeding pro se, filed this 42 U.S.C. §

1983 action against Corrections Corporation of American (CCA) and two CCA

employees. CCA operated the private prison in which Mr. Ziegler was

incarcerated. Mr. Ziegler also sued Unit Parts Company, and Bill Whitney, the

owner of Unit Parts.

       Mr. Ziegler alleges that he performed work for a company called Hy-Tec

and that, in violation of his due process rights, he failed to receive the prevailing

wage for this work. Mr. Ziegler’s complaint also asserts that the CCA officials

violated a state statute, Okla. Stat. tit. 57 § 549, by using his net rather than gross

wages in determining how much money to deposit in his inmate savings account.

Finally, the complaint asserts violations of his due process right of access to the

courts, his Eighth Amendment right to be free from cruel and unusual punishment,

and his First Amendment rights.

       As the magistrate judge observed, “if [Mr. Ziegler] performed labor on

behalf of Unit Parts, that fact is not discernible from the present record.” Rec.

doc. 31 at 9, n.3 (Report and Recommendation, filed March 31, 2004). His claim




        (...continued)
       **

See F ED . R. A PP . P. 34(f); 10 TH C IR . R. 34.1 (G).

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against those defendants appears to be based on their having laid off private

citizens in order to hire inmates at lower wages.

      Following the recommendation of the magistrate judge, the district court

dismissed Mr. Ziegler’s federal claims pursuant to F ED . R. C IV . P. 12(b)(6). The

court counted the dismissal as a strike under 28 U.S.C. § 1915(g). The court

declined to exercise supplemental jurisdiction over Mr. Ziegler’s state law claim

and dismissed that claim without prejudice.

      On appeal, Mr. Ziegler challenges only the dismissal of his wage-related

claims. In particular, based on a CCA policy and an agreement between CCA and

Hy-Tec, he argues that he has a constitutionally-protected liberty interest in being

paid the prevailing wage. Mr. Ziegler also argues that the defendants violated

Okla. Stat. tit. 57 § 549 in determining the amount to be deposited in his inmate

savings account.

      Upon de novo review, see Indus. Constructors Corp. v. United States

Bureau of Reclamation, 15 F.3d 963, 967 (10th Cir. 1994), we note that in

dismissing Mr. Ziegler’s due process claim, the magistrate judge relied in part

upon the language of the contract between CCA and Hy-Tec. The magistrate

judge concluded that, as an inmate, Mr. Ziegler was “as best, . . . an incidental

beneficiary to the parties’ contract but not an intended beneficiary.” Rec. doc.

31,at 6. In our view, it is not necessary or appropriate to examine the language of



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the contract or draw any factual inferences from it in order to resolve Mr.

Ziegler’s claims on a F ED . R. 12( B )(6) motion. See Sutton v. Utah State Sch. for

the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (noting that “we accept

“”all well-pleaded factual allegations in the . . .complaint as true and view[]

[them] in the light most favorable to the nonmoving party.’). Nevertheless, in

light of the standard for determining whether prisoners possess property or liberty

interests protected by the Due Process Clause, we agree with the magistrate

judge’s conclusion—that Mr. Ziegler has failed to allege a violation of his due

process rights.

      “[W]e . . . review property and liberty interest claims arising from prison

conditions by asking whether the prison condition complained of presents ‘the

type of atypical, significant deprivation in which a State might conceivably create

a liberty [or property] interest.’” Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th.

Cir. 1999) (quoting Sandin v. Conner, 515 U.S. 472, 486 (1995)). Payment below

the prevailing wage is not such an atypical, significant deprivation. See

Washlefske v. Winston, 234 F.3d 179, 184 (4th Cir. 2000) (stating that

“[a]lthough private citizens ordinarily have a constitutionally-protected property

interest in the wages earned from their labor under employment contracts, inmates

do not”) (citations omitted); see also Cumbey v. State, 699 P.2d 1094, 1097

(Okla. 1985) (stating that “‘[i]t is well-established that a state may legitimately



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restrict an inmate’s privilege to earn a wage while incarcerated” and that

“whatever right [a prisoner] ha[s] to compensation is solely by the grace of the

state”); Accordingly, regardless of the provisions of the contract between CCA

and Hy-Tec, Mr. Ziegler has failed to allege a due process claim based upon the

payment of less that the prevailing wage for work he performed as an inmate.

      The district court also acted within its discretion in dismissing Mr.

Ziegler’s state law claim without prejudice. See United States v. Botefuhr, 309

F.3d 1263, 1273 (10th Cir. 2002) (stating that if the parties have not spent a

substantial amount of time litigating the state law claims, the “district court

should normally dismiss supplemental state law claims after all federal claims are

dismissed . . . before trial”). Finally, as to Unit Parts and Mr. Whitney, we agree

that Mr. Ziegler has failed to identify any basis on which to hold them liable.

      Accordingly, the district court’s decision is AFFIRMED. Because we have

affirmed the district court’s dismissal of Mr. Ziegler’s complaint, the district

court’s dismissal and our affirmance now counts as a single strike under 28

U.S.C. § 1915(g). See Jennings v. Natrona County Det. Ctr. Med. Facility, 175

F.3d 775, 780 (10th Cir. 1999).

                                Entered for the Court,



                                  Robert H. Henry
                                  Circuit Judge

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