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should not be published.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40275

Summary Calendar

_____________________

RICHARD C. GRAYSON,

Plaintiff-Appellant,

versus

FEDERAL PRISON INDUSTRIES FACTORY,

UNICOR SECTION - FCI THREE RIVERS, TEXAS, ET AL.,

Defendants-Appellees.

____________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(C-92-CV-325)

_____________________________________________________

(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. 
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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
2 Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

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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 ParibasLondon, 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
- 4 -

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.