IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 99-60233 Summary Calendar _____________________

ROBERT E. TUBWELL,

Plaintiff-Appellant,

versus

RAYMOND ROBERTS, Superintendent, Mississippi State Penitentiary; JOHN WESTLY BECK, Area III Warden, Mississippi State Penitentiary; CAROL ARNOLD, Superintendent’s Secretary/Clerk, Mississippi State Penitentiary; KENARD WEST, K-9 Unit Sergeant, Mississippi State Penitentiary; ANTHONY PORTER, K-9 Unit Lieutenant, Mississippi State Penitentiary; STANLEY FLAGG, Case Manager Supervisor, Mississippi State Penitentiary; RONNIE FLEMING, Unit Administrator, Mississippi State Penitentiary; OLA RIMPSON, Assistant Unit Administrator, Mississippi State Penitentiary; LINDA JONES, Disciplinary Committee Member; PAM ROBINSON, Disciplinary Committee Member; WILLIE FULLER,Disciplinary Committee Member; ETHEL CARLIZE, Disciplinary Committee Chairperson,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:96-CV-47-S-A _________________________________________________________________

January 13, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Robert E. Tubwell, Mississippi state prisoner #31930, filed a

civil rights complaint against various prison officials and

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. employees alleging that he was penalized as a result of an unfair

disciplinary proceeding that was not conducted with the requisite

procedural safeguards. He further alleged that as a result of the

disciplinary proceedings, he lost his class “A” classification,

which resulted in the loss of his housing assignment and writ

writing position and also affected the success of his future parole

applications.

Tubwell alleged that the change in classification also

deprived him of attending religious services along with his wife

and spiritual speakers. Tubwell alleged that the disciplinary

actions were filed in retaliation for his filing a grievance

against certain officers and because of his writ writing

activities.

Tubwell argues that the district court erred in granting the

defendants’ motion for summary judgment because it was not timely

filed in accordance with the magistrate judge’s scheduling order.

The district court’s order that Tubwell is referring to was an

order that limited the time for the defendants to file a motion for

summary judgment and/or to dismiss based on the defense of

qualified immunity. The motion that was ultimately filed by the

defendants was not based on the defense of qualified immunity and

was timely under the magistrate judge’s scheduling order. This

claim has no merit.

Tubwell also argues that the district court should not have

granted the defendants’ motion because he was not allowed to obtain

2 sufficient discovery, and the magistrate judge did not give him

sufficient time to file a response to the defendants’ motion. The

record reflects that Tubwell was in possession of the relevant

documents necessary to respond to the motion and that he had more

than sufficient time to respond, and did in fact respond, to the

defendants’ motion. This claim also has no merit.

Tubwell argues that the district court erred in granting the

defendants’ motion for a summary judgment because there are many

outstanding genuine issues of material fact remaining with respect

to his claims.

Although the magistrate judge granted the defendants’ motion

for summary judgment, the magistrate judge concluded that Tubwell

had not stated a claim of constitutional significance. Therefore,

the correct standard of review is that required for a Fed. R. Civ.

P. 12(b)(6) ruling.

A district court’s ruling on a Rule 12(b)(6) motion is subject

to de novo review. See Barrientos v. Reliance Standard Life Ins.

Co.,

(5th Cir. 1990). The motion may be

granted only if it appears that no relief could be granted under

any set of facts that could be proved consistent with the

allegations.

Tubwell argues that he was entitled to the procedural

safeguards announced in Wolff v. McDonnell,

(1974) in

the light of the penalties resulting from the disciplinary

3 hearings. He also argues that the evidence presented at the

hearing did not support the finding of guilt.

Tubwell has no liberty interest in his classification, work,

or housing assignment, and, thus, cannot complain about any lack of

procedural due process in connection with the loss of those

privileges. See Moody v. Baker,

(5th Cir.

1988); Meachum v. Fano,

(1976); Jackson v. Cain,

(5th Cir. 1989).

The record also reflects that the decision of the disciplinary

committee was not arbitrary and capricious because it was supported

by evidence presented at the hearing. See Stewart v. Thigpen,

, 1005-06 (5th Cir. 1982).

Insofar as the disciplinary violation may have influenced the

decision of the parole board to deny Tubwell parole, he cannot

complain because a Mississippi prisoner does not have a liberty

interest in parole release. See Irving v. Thigpen,

(5th Cir. 1984); Scales v. Mississippi State Parole Bd.,

(5th Cir. 1987); Harden v. State,

(Miss. 1989).

Tubwell has not alleged facts that show that he has not been

afforded a reasonable opportunity to exercise his religious

freedom. His allegations merely reflect that he is not entitled to

attend the services that may be attended by speakers and family

members. Tubwell has not alleged a viable First Amendment claim.

See Pedraza v. Meyer,

(5th Cir. 1990).

4 Tubwell has also failed to allege a constitutional retaliation

claim because he has failed to allege a chronology of events from

which retaliation may be plausibly inferred. See Woods v. Smith,

(5th Cir. 1995).

Tubwell argues for the first time on appeal that the

disciplinary committee and the classification committee consisted

of the same individuals and that his punishment was approved in one

proceeding without any break. He argues for the first time in his

supplemental brief that because he was exonerated of the charge

underlying the disciplinary charge in the state court, double

jeopardy should have precluded his conviction. Tubwell also argues

for the first time in his supplemental brief that because the

district attorney nolle prosequied the charge against him, he has

shown that the state court has invalidated the finding of his guilt

in accordance with Heck v. Humphrey,

(1994),

and, thus, he is entitled to seek damages. Id. at 15.

The court will not consider an issue that a party fails to

raise in the district court in the absence of extraordinary

circumstances. See Leverette v. Louisville Ladder Co.,

(5th Cir. 1999). Therefore, these claims are not subject

to review.

The dismissal of Tubwell’s complaint for failure to state a

claim upon which relief may be granted is

A F F I R M E D.

5