                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JAN 3 2003
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 C. ELI-JAH HAKEEM
 MUHAMMAD, also known as
 Christopher Hijrah Mitchell,
                                                        No. 02-1235
          Plaintiff - Appellant,                    (D.C. No. 01-Z-2498)
 v.                                                       (D. Colo.)

 S. FINLEY; R. MARTINEZ; B.
 BUNCH,

          Defendants - Appellees.


                             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 se, 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 under

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
28 U.S.C. § 1291 and we affirm.

      Mr. Muhammad, an inmate at the United States Penitentiary-Administrative

Maximum Facility (“ADX”) at Florence, Colorado, filed the instant action against

various ADX officials (“Defendants”) alleging several violations of his Fourth

and Fifth Amendment rights. In his complaint, which seeks compensatory and

punitive damages, injunctive relief, and an expunction of his disciplinary

conviction, Mr. Muhammad makes essentially two claims. First, he claims that

his Fourth Amendment rights were violated when prison officials, without his

knowledge or consent, and in disregard of applicable prison regulations, searched

his personal property that was transferred to ADX from another correctional

facility. Second, Mr. Muhammad claims that he was falsely accused of

possessing a metal shank glued in the sole of a pair of shoes. He further alleges

that the disciplinary hearing that ensued was biased and unfair, and that he was

therefore denied due process under the Fifth Amendment. Mr. Muhammad

alleges that as a result of the constitutionally deficient hearing, he received

disciplinary segregation, 30 days of commissary restrictions, and a loss of 82 days

of good-time credits.

      The district court dismissed Mr. Muhammad’s first claim 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 Hudson v. Palmer, 468 U.S.


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517, 525-26 (1984), he had no reasonable expectation of privacy. The court

further held that the search of Mr. Muhammad’s property did not violate his right

to due process because: (1) an inmate has no due process right to be present when

his or her property is searched, Block v. Rutherford, 468 U.S. 576, 590-91 (1984);

(2) merely negligent deprivations of property by federal 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 as alleging that Defendants

intentionally misidentified his property, such does not constitute a violation of the

Due Process Clause if a meaningful post-deprivation remedy for the loss is

available. 1 Hudson, 468 U.S. at 533.

      As to Mr. Muhammad’s second claim, the district court held that under

Preiser v. Rodriguez, 411 U.S. 475, 485-487 (1973), a claim seeking restoration

of good-time credits cannot be brought as a civil rights action, but must instead be

brought as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Second,

the district court dismissed without prejudice Mr. Muhammad’s claim for

damages arising out of the allegedly unconstitutional disciplinary hearing, holding

that the claim was procedurally barred under Edwards v. Balisok, 520 U.S. 641,

648 (1997), which held that a prisoner’s claim for damages that necessarily


      1
            The district court further held that the Federal Tort Claims Act
(“FTCA”) provides an adequate post-deprivation remedy if Defendants, acting
beyond the scope of their authority, intentionally deprived him of his property.

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implies the invalidity of the prisoner’s disciplinary conviction is not actionable in

a suit brought under 42 U.S.C. § 1983 unless the underlying conviction has been

invalidated.

      Third, the district court held that Mr. Muhammad’s claims that his

placement in disciplinary segregation and the imposition of certain commissary

restrictions denied him of due process lacked merit because Mr. Muhammad could

not satisfy the threshold showing that he was deprived 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 interest. For similar reasons, the

district court held that the imposition of commissary restrictions did not implicate

a liberty interest for due process purposes.

      On appeal to this court, Mr. Muhammad renews the claims presented in his

complaint arguing that his disciplinary hearing and the search of his personal

effects violated his rights under the Fourth and Fifth Amendments. In addition,

Mr. Muhammad challenges the district court’s dismissal of his claims on the

grounds that: (1) his Fourth and Fifth Amendment claims should not have been

dismissed as legally frivolous; (2) he demonstrated “personal involvement of the

Defendants in alleged constitutional deprivations concerning disciplinary actions


                                          -4-
and hearings,” Aplt. Br. at 18-A, and that the district court therefore erred in

holding that he could not obtain a restoration of good-time credits in a Bivens

action; (3) the court erred in dismissing his due process claim that a memorandum

containing false allegations was used at his disciplinary 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 segregation and commissary restrictions.

See Sandin, 515 U.S. at 486; see also Talley v. Hesse, 91 F.3d 1411, 1413 (10th

Cir. 1996) (applying Sandin in affirming district court’s grant of summary

judgment against prisoner for lack of a liberty interest 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 restoration of good-time credits.

See also Brown v. Smith, 828 F.2d 1493, 1495 (10th Cir. 1987). Mr.

Muhammad’s argument that Defendants’ personal involvement in the alleged

deprivations somehow entitles him to maintain a Bivens action for such relief is


                                         -5-
therefore without merit. We likewise fail to see how the district court erred in

holding that Mr. Muhammad’s claims, to the extent they can be construed as

alleging an unauthorized, intentional deprivation of 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 order and the record on

appeal, we conclude that the many issues raised by Mr. Muhammad were correctly

analyzed. Accordingly, we AFFIRM for substantially the same reasons given by

the district court, GRANT Mr. Muhammad’s Motion for Leave to Proceed

Without Prepayment of Costs or Fees, and DENY all other pending motions. We

remind Mr. Muhammad that he is obligated to continue making partial payments

until the entire fee has been paid.

                                       Entered for the Court



                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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