                                            No. 04-5745
                                      File Name: 05a0478n.06
                                         Filed: June 7, 2005

                                UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT

DEXTER MCMILLAN,                                     )
                                                     )
         Plaintiff-Appellant,                        )
                                                     )
v.                                                   )
                                                     )
CLIFFORD FIELDING; JOHN CRUNK;                       )       On Appeal from the United States
VICKY ETHINGTON; KEVIN MYERS; JIM                    )       District Court for the Middle
ROSE; LINDA ROCHELL; DEBRA                           )       District of Tennessee
CASTEEL; DON HOWARD; GREG                            )
ABRAMS; LONZO DUNCAN; BRANDON                        )
MALONEY; JEFFREY SPICE; HEATHER                      )
ELZEY,                                               )
                                                     )
         Defendants-Appellees.                       )




         Before: MARTIN and ROGERS, Circuit Judges; FORESTER, Chief District Judge.*



         Dexter McMillan, a Tennessee prisoner who has been released from prison proceeding pro
se, appeals the district court order dismissing his civil rights action filed under 42 U.S.C. § 1983
under 12(b)6. The case has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of
the Sixth Circuit. The panel unanimously agrees that oral argument is not needed. Fed. R. App. P.
34(a).
         At the time this action allegedly arose, McMillan was a prisoner confined at the South
Central Correctional Facility in Clifton, Tennessee. He filed this civil rights action against Warden
Kevin Myers, Sgt. Jeffrey Spice, and Corrections Officer Heather Elzey, along with other prison
officials, alleging violations of his due process rights under the Fourteenth Amendment in


         *
        The Honorable Karl S. Forester, United States Chief District Judge for the Eastern District
of Kentucky, sitting by designation.
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connection with a prison disciplinary action. He seeks declaratory relief and monetary damages.
         McMillan alleges that Officer Elzey took a check from his legal mail and had it put into his
trust fund account against his wishes, then falsely cited McMillan for interfering with an officer’s
duties. McMillan notes that Sgt. Spice served on a disciplinary panel that found him guilty of the
violation, and he claims that Spice found him guilty in retaliation for a previous lawsuit he filed
against Spice. Finally, McMillan alleges that Warden Kevin Myers affirmed the false charges. As
a result of this disciplinary action, McMillan claims he was held in lockdown for ten days, deprived
of package privileges for nine months, fined $4.00, and denied parole because of the false charges.
The defendants moved to dismiss for failure to state a claim. The magistrate judge found that
McMillan failed to state a claim and recommended granting the defendants’ motion in his Report
and Recommendation. Over McMillan’s objections, the district court adopted the magistrate judge’s
Report and Recommendation, adding that 42 U.S.C. § 1983 is not a remedy for addressing the taking
of property if a post-deprivation remedy is available. This appeal followed.
         McMillan identifies four issues in this appeal: 1) that his rights were violated when his
check was cashed without his permission; 2) that his due process rights were violated when Officer
Elzey leveled false charges against him; 3) that Sgt. Spice found him guilty in an act of retaliation;
and 4) that he should have been appointed counsel.
         We conclude that the district court properly dismissed McMillan’s claims. Whether a district
court properly dismissed a suit pursuant to Rule 12(b)(6) for failure to state a claim is a question of
law subject to de novo review. See Arrow v. Fed. Reserve Bank, 358 F.3d 392, 393 (6th Cir. 2004).
In reviewing the dismissal of a complaint for failure to state a claim, this court accepts all
well-pleaded factual allegations as true. Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 405 (6th Cir.
1998).
         We believe the district court properly dismissed McMillan’s complaint for failure to state
a claim. The district court noted that 42 U.S.C. § 1983 is not a remedy for addressing the taking of
property if a post-deprivation remedy is available. Parratt v. Taylor, 451 U.S. 527, 543-44 (1981),
overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). This is true even if the
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deprivation is intentional. Hudson v. Palmer, 468 U.S. 517, 533 (1984). As the district court noted,
the state of Tennessee does provide an adequate post-deprivation remedy for takings of property.
Brooks v. Dutton, 751 F.2d 197, 199 (6th Cir. 1985). McMillan did not allege that he attempted any
post-deprivation remedies or that they were inadequate. Thus, McMillan did not state a due process
claim with regard to his property.
       McMillan’s complaint with regard to the false charges fails to state a Fourteenth Amendment
claim. A Fourteenth Amendment procedural due process claim depends upon the existence of a
constitutionally cognizable liberty or property interest with which the state has interfered. Kentucky
Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989); Pusey v. City of Youngstown, 11 F.3d 652,
656 (6th Cir. 1993). A prison disciplinary proceeding does not give rise to a protected liberty
interest unless the restrictions imposed constitute an “atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).
Ten days in lock up, the loss of package privileges, and a $4.00 fine do not constitute an atypical and
significant hardship in the context of prison life. Even if McMillan had a liberty interest in
remaining free from lock up, loss of package privileges, and a fine, his due process right was
fulfilled by his disciplinary hearing. See Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986).
       To the extent that the duration of McMillan’s sentence was affected by the disciplinary
action, he may not challenge it with a § 1983 action. See Heck v. Humphrey, 512 U.S. 477, 486-87
(1994). In Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court extended Heck to bar
§ 1983 actions that do not directly challenge confinement, but instead challenge procedures which
necessarily imply unlawful confinement. Id. at 646. A prisoner found guilty in a prison disciplinary
hearing cannot use § 1983 to collaterally attack the hearing’s validity or the conduct underlying the
disciplinary conviction. Huey v. Stine, 230 F.3d 226, 230-31 (6th Cir. 2000), overruled in part by
Muhammad v. Close, 540 U.S. 749, 754-55 (2004) (Heck does not apply if the prisoner’s lawsuit
does not threaten any consequence for the plaintiff’s conviction or the duration of his sentence).
McMillan does not explain the connection between his disciplinary conviction and his parole, but
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to the extent that his parole was affected, McMillan may not invoke § 1983 to challenge the
disciplinary conviction until the conviction is overturned.
        McMillan does not state a retaliation claim. McMillan contends that Sgt. Spice retaliated
against him by finding him guilty of the false charges because McMillan had filed a previous lawsuit
against Spice. The district court held that McMillan’s assumptions regarding the defendant’s
motivation were purely conclusory. Bare allegations of malice do not suffice to establish a
constitutional claim. Crawford-El v. Britton, 523 U.S. 574, 588 (1998). McMillan’s allegations that
Spice was motivated to retaliate against him in a disciplinary hearing because of a previous lawsuit,
without more, are too attenuated to support a retaliation claim.
        Concerning McMillan’s last issue, the general rule is that the appointment of counsel in a
civil case is within the discretion of the court. See Glover v. Johnson, 75 F.3d 264, 268 (6th Cir.
1996); Lavado v. Keohane, 992 F.2d 601, 604-05 (6th Cir. 1993); Childs v. Pellegrin, 822 F.2d
1382, 1384 (6th Cir. 1987). The district court did not abuse its discretion by declining to appoint
counsel to represent McMillan in the proceedings below since McMillan’s civil rights action fails
to state a claim upon which relief may be granted. See Glover, 75 F.3d at 268; Childs, 822 F.2d at
1384.
        Even when all of McMillan’s factual allegations are accepted as true, he can show no set of
facts in support of his claims which would entitle him to relief. See Lewis, 135 F.3d at 405.
        Judgment affirmed.
