Charles A. Trobaugh v. Kathleen Hawk, (8th Cir. 2001)

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United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 00-3916

Charles A. Trobaugh, Appellant, v. Kathleen Hawk, Director, Federal Bureau of Prisons; M. J. Pischke, Case Manager; J. Schmidt, Case Manager; Steve O'Conner; Kevin Voight; Jerry Parr; Fred Frey; Amy Hamilton, Appellees.

Submitted: September 7, 2001

Filed: September 21, 2001

Before WOLLMAN, Chief Judge, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.

PER CURIAM.

Federal prisoner Charles A. Trobaugh appeals the district courtÂ’s1 adverse grant of summary judgment in his action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). After de novo review, see Cooper v. Olin Corp., 246 F.3d 1083, 1087 (8th Cir. 2001), we affirm.

We conclude that Trobaugh§ 3621(e)(2)(B) are not ripe for judicial review. The one-year sentence reduction is provisional; Trobaugh has not yet been denied the reduction; and the final review of the reduction will not occur until ninety days before his July 2002 provisional release date. See Smith v. Arkansas Dep§ 3621(e)Â’s language is permissive and does not guarantee eligible inmates early release), and the Bureau of Prisons regulations enacted after Trobaugh completed drug treatment were not applied retroactively, see id. at 1045 (amendments to regulation that merely clarify preexisting law are not subject to constitutional limits on retroactivity).

We also conclude that Trobaugh failed to show that appellees retaliated against him for contacting a United States senator, for filing the instant action, and for filing prison grievances. Cf. Ponchik v. Bogan, 929 F.2d 419, 420 (8th Cir. 1991) (prisoner must establish transfer would not have occurred "but for" exercise of constitutional right; rejecting retaliatory-transfer claim even where filing of lawsuits against officials was clearly factor in transfer, because prisoner did not prove transfer would not have

Appeal from the United States

District Court for the

District of Minnesota.

[UNPUBLISHED]

been made "but for" litigation). In addition, we conclude that even if appellees destroyed the document pertaining to TrobaughÂ’s sentence reduction, such destruction did not violate TrobaughÂ’s substantive due process rights. See Breithaupt v. Abram, 352 U.S. 432, 435 (1957) (conduct that "shocks the conscience" and thus denies substantive due process is brutal and offensive).

The judgment is affirmed. We deny TrobaughÂ’s motion on appeal for an injunction, as well as his other pending motions.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

[1] The Honorable Donovan W. Frank, United States District Judge for the District of Minnesota, adopting the report and recommendations of the Honorable John M. Mason, United States Magistrate Judge for the District of Minnesota.

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