Krueger v. Woods

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-41010
Summary Calendar
HAROLD FREDERICK KRUEGER,
Petitioner-Appellant,
VERSUS
W.F. WOODS,
Respondent-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(CR-C-95-494)
March 28, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Appellant, a federal prisoner, sued pro se under 28 U.S.C. §
2241 alleging that legal materials, including a pro se motion under
28 U.S.C. § 2255, were wilfully confiscated from him and
negligently misplaced thereby obstructing his access to the courts
and rendering his continued incarceration unconstitutional. The
district court dismissed. We affirm.
1
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
Appellant’s legal materials were wilfully confiscated in
connection with his transfer from one institution to another.
Marshals took the legal papers from him and they were thereafter
inadvertently misplaced.
We construe the dismissal as one pursuant to 28 U.S.C. §
1915(d) because Defendants were not served with the complaint prior
to dismissal.
Appellant’s complaint does not challenge the legality of his
conviction or the validity of his sentence and he is, therefore,
not entitled to relief under § 2255. See United States v. Gabor,
905 F.2d 76, 77-78 (5th Cir. 1990). Claims which attack the manner
in which a sentence is executed are proper under § 2441. United
States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992). But relief under
this section is available only if custody is in violation of the
constitution or laws of the United States. Appellant has not shown
that he is in custody in violation of the constitution or laws of
the United States and, therefore, denial of relief under § 2241 was
appropriate.
The district court did not address Appellant’s claim that he
was denied access to the courts. Since he is a federal prisoner,
and the defendants are federal, not state actors, such claim could
be brought pursuant to Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971). The flaw in
Appellant’s denial of access argument, however, is that, while
confiscation of the materials was willing, it was the inadvertent
2
loss of those materials which deprived him of access to the courts.
To constitute a constitutional deprivation the impairment of access
must be deliberate. Jackson v. Procunier, 789 F.2d 307, 310-11
(5th Cir. 1986). Accordingly, Appellant has failed to state a
claim for denial of access to the courts.
AFFIRMED.
3