* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 3 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

C. ELI-JAH HAKEEM MUHAMMAD, also known as Christopher Hijrah Mitchell, Plaintiff - Appellant, v. S. FINLEY; R. MARTINEZ; B. BUNCH, Defendants - Appellees. No. 02-1235 (D.C. No. 01-Z-2498) (D. Colo.)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and MURPHY , Circuit Judges. **

Plaintiff-Appellant C. Eli-jah Hakeem Muhammad, a.k .a. Christopher Hijrah Mitchell, a federal prisoner appearing pro s e, appeals the dismissal of his civil rights complaint filed pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics , 403 U.S. 388 (1971). Our jurisdiction arises und er- 2 -

28 U.S.C. § 1291 and we affirm. Mr. Muhammad, an inmate at the United States Penite ntiary-Administrative Maximum Facility (“ADX”) at Florence, Colorado, fil ed the instant action against various ADX officials (“Defendants”) alleging sever al violations of his Fourth and Fifth Amendment rights. In his complaint, whic h seeks compensatory and punitive damages, injunctive relief, and an expunct ion of his disciplinary conviction, Mr. Muhammad makes essentially two clai ms. First, he claims that his Fourth Amendment rights were violated when pris on officials, without his knowledge or consent, and in disregard of applicabl e prison regulations, searched his personal property that was transferred to ADX f rom another correctional facility. Second, Mr. Muhammad claims that he was falsely accused of possessing a metal shank glued in the sole of a pai r of shoes. He further alleges that the disciplinary hearing that ensued was biase d and unfair, and that he was therefore denied due process under the Fifth Amendm ent. Mr. Muhammad alleges that as a result of the constitutionally de ficient hearing, he received disciplinary segregation, 30 days of commissary res trictions, and a loss of 82 days of good-time credits. The district court dismissed Mr. Muhammad’s first c laim as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), holding that he could not prevail under the Fourth Amendment because under Hu dson v. Palmer , 468 U.S.1 The district court further held that the Federal To rt Claims Act

(“FTCA”) provides an adequate post-deprivation reme dy if Defendants, acting beyond the scope of their authority, intentionally deprived him of his property. - 3 - 517, 525-26 (1984), he had no reasonable expectatio n of privacy. The court further held that the search of Mr. Muhammad’s prop erty did not violate his right to due process because: (1) an inmate has no due pr ocess right to be present when his or her property is searched, Block v. Rutherfor d , 468 U.S. 576, 590-91 (1984); (2) merely negligent deprivations of property by fe deral employees do not violate the Due Process Clause, Daniels v. Williams , 474 U.S. 327 (1986); and (3) to the extent that Mr. Muhammad’s claim can be construed a s alleging that Defendants intentionally misidentified his property, such does not constitute a violation of the Due Process Clause if a meaningful post-deprivationremedy for the loss is available. 1 Hudson , 468 U.S. at 533. As to Mr. Muhammad’s second claim, the district cou rt held that under Preiser v. Rodriguez , 411 U.S. 475, 485-487 (1973), a claim seeking res toration of good-time credits cannot be brought as a civil r ights action, but must instead be brought as a petition for a writ of habeas corpus u nder 28 U.S.C. § 2241. Second, the district court dismissed without prejudice Mr. Muhammad’s claim for damages arising out of the allegedly unconstitution al disciplinary hearing, holding that the claim was procedurally barred under Edward s v. Balisok , 520 U.S. 641, 648 (1997), which held that a prisoner’s claim for damages that necessarily- 4 -

implies the invalidity of the prisoner’s disciplina ry conviction is not actionable in a suit brought under 42 U.S.C. § 1983 unless the un derlying conviction has been invalidated. Third, the district court held that Mr. Muhammad’s claims that his placement in disciplinary segregation and the impos ition of certain commissary restrictions denied him of due process lacked meritbecause Mr. Muhammad could not satisfy the threshold showing that he was depri ved of a life, liberty, or property interest. Specifically, the district court held that he lacked a liberty interest in not being placed in segregation because , under Sandin v. Conner , 515 U.S. 472, 486 (1995), such discipline, absent an “atypical, significant deprivation,” does not give rise to a liberty inter est. For similar reasons, the district court held that the imposition of commissa ry restrictions did not implicate a liberty interest for due process purposes. On appeal to this court, Mr. Muhammad renews the cl aims presented in his complaint arguing that his disciplinary hearing andthe search of his personal effects violated his rights under the Fourth and Fi fth Amendments. In addition, Mr. Muhammad challenges the district court’s dismis sal of his claims on the grounds that: (1) his Fourth and Fifth Amendment cl aims should not have been dismissed as legally frivolous; (2) he demonstrated“personal involvement of the Defendants in alleged constitutional deprivations c oncerning disciplinary actions- 5 -

and hearings,” Aplt. Br. at 18-A, and that the dist rict court therefore erred in holding that he could not obtain a restoration of g ood-time credits in a Bivens action; (3) the court erred in dismissing his due p rocess claim that a memorandum containing false allegations was used at his discip linary hearing; and (4) he should not be required to bring an action under the FTCA to redress any unauthorized, intentional deprivation of his property by Defendants. As to claims one and three above, we agree with the district court that the claims dismissed pursuant to 28 U.S.C. § 1915(e)(2) (B)(i) were frivolous. Moreover, we agree with the district court that Mr. Muhammad lacked a liberty interest in being free from disciplinary segregatio n and commissary restrictions.
See Sandin , 515 U.S. at 486; see also Talley v. Hesse , 91 F.3d 1411, 1413 (10th Cir. 1996) (applying Sandinin affirming district court’s grant of summary judgment against prisoner for lack of a liberty int erest where disciplinary hearing resulted in his assignment to segregated confinement). We find claims two and four similarly without merit . We agree with the district court that pursuant to Preiser , 411 U.S. at 487, 489-90, a § 2241 habeas action constitutes the sole means of obtaining a re storation of good-time credits. See also Brown v. Smith , 828 F.2d 1493, 1495 (10th Cir. 1987). Mr. Muhammad’s argument that Defendants’ personal invol vement in the alleged deprivations somehow entitles him to maintain a Biv ens action for such relief is- 6 -

therefore without merit. We likewise fail to see h ow the district court erred in holding that Mr. Muhammad’s claims, to the extent t hey can be construed as alleging an unauthorized, intentional deprivation o f his property, were not actionable under the Due Process Clause due to the availability of a tort action under the FTCA. See Hudson , 468 U.S. at 533. After carefully reviewing the district court’s orde r and the record on appeal, we conclude that the many issues raised by Mr. Muhammad were correctly analyzed. Accordingly, we AFFIRM for substantiallythe same reasons given by the district court, GRANT Mr. Muhammad’s Motion forLeave to Proceed Without Prepayment of Costs or Fees, and DENY all o ther pending motions. We remind Mr. Muhammad that he is obligated to continu e making partial payments until the entire fee has been paid. Entered for the Court

Paul J. Kelly, Jr. Circuit Judge