UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-40275
Summary Calendar
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RICHARD C. GRAYSON,
Plaintiff-Appellant,
versus
FEDERAL PRISON INDUSTRIES FACTORY,
UNICOR SECTION - FCI THREE RIVERS, TEXAS, ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
(C-92-CV-325)
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(October 12, 1995)
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:1
Proceeding pro se and in forma pauperis, Richard C. Grayson,
a prisoner at the Federal Correctional Institute in Three Rivers,
Texas, appeals the summary judgment granted the Federal Prison
Industries Factory and several prison officials. Concluding that
Grayson's constitutional rights were not violated, and that he has
no claims against prison officials for negligence, discrimination,
or conspiracy, we AFFIRM.
1
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
I.
Grayson's original complaint against the Federal Prison
Industries Factory and prison officials appeared to claim
negligence, but did not present facts supporting his action. Upon
the magistrate judge requiring a more definite statement, Grayson
responded that he wished to appeal an adverse ruling in a grievance
procedure and stated the underlying facts supporting his complaint.
According to Grayson's response, he was denied a job
assignment in the Federal Prison Industries program (UNICOR) by the
defendant federal prison officials. Grayson alleged that he
requested employment in UNICOR upon his arrival at the prison;
however, the defendants operated the waiting list negligently and
advised him incorrectly about his status on the list, delaying his
job placement in the program. Grayson maintained that the
defendants conspired to keep his name off the UNICOR waiting list
and to cover up their negligence.
Following Grayson's response, the defendants moved to dismiss,
and alternatively, for summary judgment. The district court
adopted the magistrate judge's recommendation and granted summary
judgment, concluding that Grayson failed to show that the
defendants violated his constitutional rights.
II.
The district court liberally construed Grayson's complaint as
filed pursuant to 42 U.S.C. § 1983. E.g., Haines v. Kerner, 404
U.S. 519, 520 (1972); Price v. Digital Equip. Corp., 846 F.2d 1026,
1028 (5th Cir. 1988) (pro se litigant's pleadings and briefs are
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entitled to liberal construction). However, the court erred in
applying § 1983, because Grayson sued only federal officers and did
not allege that they acted under color of state law, as required by
§ 1983. In issue are the Federal Tort Claims Act and/or Bivens.2
See Hessbrook v. Lennon, 777 F.2d 999, 1001-02 (5th Cir. 1985),
abrogated on other grounds by McCarthy v. Madigan, 504 U.S. 140
(1992). FTCA and Bivens claims are not mutually exclusive. Id. at
1001.
We review a summary judgement de novo. As is well
established, this court is "not bound in [its] review of a grant of
a motion for summary judgment to the grounds articulated by the
district court, for [it] may affirm the judgment on other
appropriate grounds." Coral Petroleum, Inc. v. Banque Paribas-
London, 797 F.2d 1351, 1355 n.3 (5th Cir. 1986). Therefore, we may
review the summary judgment to determine if it is appropriate for
an FTCA or Bivens claim.
Grayson claims that the prison officials were negligent in
their handling of the waiting list, that they discriminated against
him by removing his name from the list, and that they conspired to
lie about his placement on it. Even liberally construing his
allegations, Grayson presents neither a Bivens nor an FTCA claim.
A.
Analysis of a Bivens claim focuses first on whether Grayson
held a liberty interest secured by a constitutional right that was
violated by the defendants. See Enplanar, Inc. v. Marsh, 11 F.3d
2
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
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1284, 1295-96 (5th Cir.) cert. denied ___ U.S. ___, 115 S. Ct. 312
(1994). As hereinafter discussed, in that Grayson had no liberty
interest that was violated, a Bivens action cannot stand.
Prisoner classification and eligibility for rehabilitation
programs in federal prisons are not directly subject to "due
process" protection. Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976).
An inmate’s expectation of keeping a particular prison job does not
amount to a “property” or “liberty” interest protected under the
due process clause. Bryan v. Werner, 516 F.2d 233, 240 (5th Cir.
1975). Prisoners have no constitutionally protected liberty or
property interest per se in their prison job assignments. Jackson
v. Cain, 864 F.2d 1235, 1250 (5th Cir. 1989). "A prisoner does not
have a legitimate claim of entitlement to continuing UNICOR
employment." Bulger v. U.S. Bureau of Prisons, ___ F.3d ___, ___,
(5th Cir. 1995) (No. 94-41226). Likewise, an inmate’s expectation
of getting a particular prison job does not amount to a “property”
or “liberty” interest entitled to protection under the due process
clause.
Therefore, any error in placing Grayson on the waiting list
for a UNICOR job does not rise to the level of a due process
violation. Moreover, Grayson was not harmed by any errors in
placement on the list, because he was offered a job in June 1992,
at the same time as other prisoners who were placed on the waiting
list when Grayson originally applied. And, upon being hired,
Grayson requested not to be placed in UNICOR until after his
appeal.
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The defendants carried their summary-judgment burden by
pointing out that Grayson was merely challenging his eligibility
for a UNICOR job and by stating that, because he failed "to allege
facts constituting a violation of a right secured under the United
States Constitution," Grayson was not entitled to relief. The
defendants having satisfied their burden, Grayson was required to
identify specific evidence in the record demonstrating the
existence of a material fact issue for trial, without resting upon
mere allegations. E.g., Anderson v. Liberty Lobby, 477 U.S. at
256-57. He failed to do so. He produced documentation relating to
work detail assignments and his administrative appeal, but did not
present facts material to whether he held an established liberty or
property interest in a UNICOR job assignment. In his pleadings,
Grayson did not even allege a specific constitutional violation or
that he held a liberty interest, stating only that he and other
inmates were "deprived of their rights, privileges, and/or
immunities secured by the United States Constitution. . . ."
B.
Nor can Grayson's claim stand under the FTCA, because he did
not seek to hold the United States liable; the United States is the
proper party-defendant for such an action. U.S.C. § 1346(b); see
Finley v. United States, 490 U.S. 545, 552 (1989) superseded by
statute on other grounds as stated in Federal Sav. and Loan Ins.
Corp. v. Mackie, 949 F.2d 818 (5th Cir. 1992).
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IV.
For the foregoing reasons, the judgment is
AFFIRMED.
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