USA v. Burns

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-3916
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Charles A. Trobaugh, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Kathleen Hawk, Director, Federal * [UNPUBLISHED]
Bureau of Prisons; M. J. Pischke, *
Case Manager; J. Schmidt, Case *
Manager; Steve O'Conner; Kevin *
Voight; Jerry Parr; Fred Frey; Amy *
Hamilton, *
*
Appellees. *
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Submitted: September 7, 2001
Filed: September 21, 2001
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Before WOLLMAN, Chief Judge, MORRIS SHEPPARD ARNOLD, and BYE,
Circuit Judges.
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PER CURIAM.

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1The 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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Federal prisoner Charles A. Trobaugh appeals the district court’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’s claims relating to his sentence reduction under 18
U.S.C. § 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’t of Correction, 103 F.3d 637, 643-44 (8th
Cir. 1996) (prisoners must satisfy standing requirements, and court will not intervene
unless constitutional violation has occurred or threat of such violation is real and
immediate). Even if we were to conclude that his claims are ripe, we would find them
meritless. Section 3621(e) creates no protected liberty interest in receiving a sentence
reduction, see Zacher v. Tippy, 202 F.3d 1039, 1041 (8th Cir. 2000) (§ 3621(e)’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

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been made “but for” litigation). In addition, we conclude that even if appellees
destroyed the document pertaining to Trobaugh’s sentence reduction, such destruction
did not violate Trobaugh’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 Trobaugh’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.

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