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. (“UNI- *43 COR”), 1 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 UNI-COR 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,
Johnson contends that his due process rights were violated when Rowley terminated his UNICOR employment. In order to succeed on this claim, Johnson first must establish that he had a constitutionally protected property interest in his UNICOR job assignment.
See Weinstein v. Albright,
Although this Court has held that a prisoner in a New York State correctional facility “has no protected liberty interest in a particular job assignment,”
Frazier v. Coughlin,
B. First Amendment Claim
The district court dismissed Johnson’s claim that he was terminated because of Rowley’s personal animus towards Muslims on the ground that Johnson had failed to exhaust his administrative remedies regarding that claim. We review
de novo
a district court’s ruling on whether a plaintiff has exhausted administrative remedies under the Prison Litigation Reform Act of 1995 (“PLRA”).
See Ortiz v. McBride,
The PLRA provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s “exhaustion requirement applies to all inmate suits about prison life.”
Porter v. Nussle,
In order to exhaust a claim, “prisoners must ‘complete the administrative review process in accordance with the applicable procedural rules.’ ”
Id.
at 218,
Here, it is undisputed that Johnson did not raise his First Amendment claim until he filed his appeal with the Regional Director, at the third step of the grievance process. He argues, however, that this does not bar his claim because (1) Rowley waived exhaustion as a defense, and (2) there was good cause for his failure to exhaust — he had not discovered Rowley’s personal animus towards Muslims prior to when he filed his appeal with the Regional Director. Neither of these arguments has merit.
As an initial matter, failure to exhaust is an affirmative defense in a lawsuit governed by the PLRA.
See Jones,
We have considered all of Johnson’s arguments on appeal and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.
Notes
. UNICOR "is the trade name for Federal Prison Industries, Inc., a government corporation that provides work and training opportunities for federal inmates.”
United States
v.
Thompson,
. Furthermore, we agree with the district court that Johnson's argument that he had a protected property interest because he and Rowley had an implied contract that Johnson could use UNICOR equipment for personal use is unavailing, as none of the facts alleged by Johnson establish the existence of any such agreement.
