* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Ruggero J. Aldisert, Senior Circuit Judge , United States Court of Appeals for the Third Circuit, sitting by design ation.

UNITED STATES COURT OF APPEALS Filed 8/20/96 FOR THE TENTH CIRCUIT

DAVID LAWRENCE WILSON,

Plaintiff-Appellant,

v. FEDERAL BUREAU OF PRISONS,

Defendant-Appellee. No. 95-1338 (D.C. No. 95-S-1844) (D. Colo.)

ORDER AND JUDGMENT *

Before TACHA, ALDISERT, ** and BALDOCK, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. SeeFed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971). -2- Plaintiff brought the present action protesting the loss of his visitation privileges as a sanction for his admitted possessio n of drug paraphernalia in his cell at the federal penitentiary in Florence, Color ado. The district court construed plaintiff’s complaint as attempting to state Bivens 1 claims and dismissed it under 28 U.S.C. § 1915(d) as legally frivolous. We revie w this dismissal for an abuse of discretion. Green v. Seymour , 59 F.3d 1073, 1077 (10th Cir. 1995). Upon arrival at the Florence penitentiary, plaintif f received a handbook containing a table of prohibited acts, categorized by level of severity, and the possible sanctions that could be imposed within eac h category. This information is also contained in 28 C.F.R. § 541.13, Table 3. Possession of drug paraphernalia, which is a prohibited act of the gre atest severity, can be punished with a variety of sanctions, including loss of priv ileges, id. After finding plaintiff guilty of the charged offense, the prison hearing o fficer imposed several sanctions, including loss of two privileges: visit ation (365 days) and use of the commissary (60 days). Plaintiff contended that the restriction on visitat ion violated his federal rights in two respects: (1) because visitation is included in the list of “rights and responsibilities” set forth in the handbook, seeid. § 541.12, it is a “right,” not a “privilege,” and, therefore, cannot be taken away a s sanction; and, alternatively,-3-

(2) if visitation can, in fact, be taken away as a sanction for possession of drug paraphernalia, the handbook does not give an inmate adequate predeprivation notice of this fact. Plaintiff sought restoration of his visitation rights and damages against the Federal Bureau of Prisons. We agree with the district court that plaintiff’s c laims are legally frivolous. First, as plaintiff now concedes, visitation is nota constitutional right, and, therefore, can be restricted. E.g. , Ramos v. Lamm , 639 F.2d 559, 580 n.26 (10th Cir. 1980), cert. denied , 450 U.S. 1041 (1981). Second, a reading of the e ntire table of prohibited acts and sanctions clearly show s that visitation is one of the privileges that can be lost as a sanction for prohi bited conduct. We also note that, to the extent plaintiff seeks a restoration of his visitation privileges, his claim is now moot, and to the extent plaintiff seeks damages , his claim is barred by the doctrine of sovereign immunity, seeUnited States v. Testan , 424 U.S. 392, 400 (1976)(“In a suit against the United States, there cannot be a right to money damages without a waiver of sovereign immunity . . . .”).-4-

The judgment of the United States District Court fo r the District of Colorado dismissing the action as frivolous is AFFI RMED.

Entered for the Court

Deanell Reece Tacha Circuit Judge