No. 99-50789
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50789
Summary Calendar
ROBERT CARLETON MITCHELL,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA; BUREAU OF PRISONS;
SLADE, Warden; SERRANO, Dr.; LICON, Ms.;
VILLANUEVA, Mr.; FERNANDEZ, Mr.,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-97-CV-450-H
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March 6, 2000
Before REAVLEY, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Former federal prisoner Robert Carleton Mitchell appeals
from the grant of summary judgment for the defendants in his
civil action. For the reasons that follow, we affirm the
judgment of the district court.
Relevant to the district court’s disposition of any possible
claims under the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 2671-2680, Mitchell contends that exhaustion of prison
administrative remedies would be futile. He provides no specific
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-50789
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allegations indicating that exhaustion would be futile; his
unsupported assertion that exhaustion would be futile is
insufficient to demonstrate that the district court erred by
disposing of any FTCA claims on exhaustion grounds.
Regarding his claims brought pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), Mitchell contends that Warden J.E. Slade and Dr. Jose
Serrano were deliberately indifferent to his serious medical
needs because he was not provided with a special diabetic diet;
because oral surgery to treat damage to his teeth was delayed;
because his chronic back condition was not treated; because
treatment of his prostate cancer was delayed; because he was
never treated for dizziness; and because nothing was done in
response to an abnormal electrocardiogram (EKG) reading. The
evidence indicated that the defendants were not deliberately
indifferent to Mitchell’s serious medical needs. Estelle v.
Gamble, 429 U.S. 97, 106 (1976).
Mitchell contends that Marti Licon and Pifas Villanueva
delayed his release on parole by refusing to submit his second
release plan when first asked; submitting his second release plan
to the wrong probation office; failing to move quickly enough on
the relevant paperwork; and forcing him to spend time working up
a third release plan. A prisoner has no constitutional right to
release on parole. Greenholtz v. Inmates of the Nebraska Penal
and Correctional Complex, 442 U.S. 1, 7 (1979). Statutory and
regulatory language, however, may create a liberty interest in
release. See id. at 12. Officials involved in the parole
No. 99-50789
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process may delay a tentative release date pending preparation of
a suitable release plan. Anton v. Getty, 78 F.3d 393, 397 (8th
Cir. 1996); 28 C.F.R. §§ 2.12(d), 2.28(e), 2.23. The evidence in
the record demonstrated no constitutional violation.
Mitchell contends that Warden Slade, Villanueva, and Juan
Fernandez sabotaged his finances and deprived him of the ability
to purchase needed health items, and that they were culpable for
breach of contract, by attempting to change the terms of his
Inmate Financial Responsibility Program (IFRP) plan and forcing
him into IFRP refusal status, resulting in him receiving
maintenance pay of $1 per month. “When a prison regulation
impinges on inmates’ constitutional rights, the regulation is
valid if it is reasonably related to legitimate penological
interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). The IFRP
serves the legitimate penological interest of rehabilitation, and
has been upheld against constitutional attack. McGhee v. Clark,
166 F.3d 884, 886 (7th Cir. 1999). The regulations relevant to
IFRP plans allow prison officials to place prisoners who decline
to comply with their IFRP plans to be placed on maintenance pay
and otherwise sanctioned. 28 C.F.R. § 545.11(d). The
regulations also allow prison officials to accelerate payments
and to count funds from outside the prison as available
resources. McGhee, 166 F.3d at 887; § 545.11(b). The evidence
in the record demonstrated that prison officials complied with
the relevant regulations; there was no constitutional violation
regarding Mitchell’s IFRP plan.
No. 99-50789
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Finally, Mitchell contends that Fernandez stole funds from
his account, precluding him from purchasing needed health items.
Mitchell believes it inconceivable that a prison official could
confiscate a prisoner’s funds by mistake. Construing his brief
liberally, Price v. Digital Equip. Corp., 846 F.2d 1026, 1028
(5th Cir. 1988), Mitchell contends that Fernandez deprived him of
due process by confiscating his funds.
A negligent deprivation of property does not give rise to a
violation of the Due Process Clause of the Fourteenth Amendment.
Daniels v. Williams, 474 U.S. 327, 330-31 (1986). Nor does such
a deprivation give rise to a violation of the Fifth Amendment’s
Due Process Clause, the basis for a federal prisoner’s due
process claim in a Bivens action. See Sterling v. United States,
85 F.3d 1225, 1227 (7th Cir. 1996); O’Neal v. Eu, 866 F.2d 314,
314 (9th Cir. 1988). The record indicated that the deprivation
in Mitchell’s case was negligent; the district court did not err
by granting summary judgment on Mitchell’s claim.
AFFIRMED.
Mitchell v. USA
Combined Opinion