JOHNSON v. Berry, Unit Manager, Davis Correctional Facility; Terri Underwood, Grievance Coordinator, Defendants. (2021)

ORDER AND JUDGMENT *

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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.

Proceeding pro se, Oklahoma state prisoner Daniel Johnson appeals the district court's dismissal of the Fourteenth Amendment due process claim he brought against defendant Marty Garrison pursuant to 42 U.S.C. § 1983. Although Johnson's complaint contained numerous allegations against multiple defendants, the only remaining claim is the due process claim “against defendant Garrison based on grievance No. 2016-1001-00106-G.” Johnson v. Garrison, 805 F. App'x 589, 595 (10th Cir. 2020). In this grievance, Johnson asserted Garrison failed to thoroughly and impartially investigate allegations he made about violations of the Prison Rape Elimination Act (“PREA”).

To the extent Johnson's due process claim is premised on processes afforded him under the PREA, the district court correctly concluded Johnson has failed to show the PREA provides an inmate with a private right of action, enforceable under § 1983, to challenge that process. Alternatively, Johnson's § 1983 claim could be construed as an assertion his right to due process was violated by the mishandling of his prison grievance against Garrison. Again, however, Johnson has failed to show that he has a protected liberty interest in the grievance procedures at the facility in which he was housed. See Henderson v. Fisher, 767 F. App'x 670, 675 (10th Cir. 2019) (unpublished disposition cited for persuasive value).

Because Johnson has failed to state a claim upon which relief may be granted, the district court's judgment dismissing Johnson's due process claim centered on defendant Garrison's handling of his PREA complaint is affirmed.

Michael R. Murphy, Circuit Judge