                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         MAR 17 2003

                                   TENTH CIRCUIT                    PATRICK FISHER
                                                                             Clerk


 HENRY LEE GRIFFIN, JR.,

          Plaintiff - Appellant,

 v.
                                                         No. 02-1185
 ENDRE SAMU, JULIE JOFFE, LISA G.                    (D.C. No. 02-Z-494)
 ADELMAN, SUSAN BUTLER, TERRI                           (D. Colorado)
 MILHEIM, and DONNA HALL,
 individually and in their official
 capacities,

          Defendants - Appellees.



                          ORDER AND JUDGMENT *


Before SEYMOUR, LUCERO and HARTZ, Circuit Judges.



      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of the is appeal. See Fed. R. App. P. 34(a)(2);10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Henry Lee Griffin, proceeding pro se, filed a 42 U.S.C. § 1983 action

alleging constitutional violations arising out of a prison disciplinary proceeding.

He sought, among other things, damages and an expungement of the conviction

from his record. The district court dismissed without prejudice his damage claims

as barred by Edwards v. Balisok, 520 U.S. 641 (1997), dismissed his due process

claims as frivolous, and denied his petition to proceed in forma pauperis (IFP).

Liberally construing his complaint pursuant to Haines v. Kerner, 404 U.S. 519,

520-21 (1972), the court also determined that Mr. Griffin’s request to expunge his

disciplinary conviction was appropriately styled as a habeas petition and

dismissed it for failure to exhaust state remedies. We grant leave to proceed IFP

but affirm the district court in its disposition of Mr. Griffin’s § 1983 claims and

deny a certificate of appealability (COA) regarding the habeas claim. 1

      After bringing a civil suit challenging a Colorado statute and alleging that

his prison was infecting the inmate population, Mr. Griffin sent five or six letters

to the general public describing his case and requesting money for filing fees. As

a result of the letters, Mr. Griffin was found guilty in a prison disciplinary

hearing of attempted robbery and extortion, was placed in administrative


      1
        This court previously granted COA regarding whether Mr. Griffin’s
expungement claim should be filed pursuant to § 1983 or as a habeas petition
pursuant to 28 U.S.C. § 2241 or § 2254. We need not decide this question
because, as discussed below, Mr. Griffin’s failure to exhaust state remedies bars
his ability to bring either a civil rights or a habeas action.

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segregation for thirty days, and lost forty-five days of good time credits. He

brought this action alleging prison officials violated his First, Sixth and

Fourteenth Amendment rights in the course of the disciplinary action.

      Mr. Griffin seeks damages under § 1983 for alleged constitutional

violations arising from his disciplinary proceeding. In Edwards, the Supreme

Court applied its ruling in Heck v. Humphrey, 512 U.S. 477 (1994), and held that

a prisoner may not bring a § 1983 claim challenging a disciplinary hearing by

seeking damages or declaratory relief when his claim would “necessarily imply

the invalidity of the punishment imposed” unless he first demonstrates that his

disciplinary conviction or sentence was previously invalidated. Edwards, 520

U.S. at 648. Mr. Griffin challenges the sufficiency of the evidence to support his

disciplinary conviction, a claim that necessarily implies the invalidity of that

conviction. The district court correctly held this claim barred under Edwards by

Mr. Griffin’s failure to show that the conviction has been invalidated.

      We also agree with the district court’s conclusion that to the extent Mr.

Griffin is alleging his liberty interests were violated by his placement in

administrative segregation, his claim is frivolous under Sandin v. Conner, 515

U.S. 472 (1995). In Sandin, the Supreme Court held that discipline in the form of

segregated confinement does “not present the type of atypical, significant

deprivation in which a State might conceivably create a liberty interest.” Id. at


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486. See also Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir. 1996).

      Mr. Griffin raises a First Amendment claim, asserting the disciplinary

action was in retaliation for his initiation of the civil suit and his solicitation of

the general public. Prison officials may not discipline an inmate for exercising

his constitutional rights. Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990)

(retaliation against prisoner for exercise of right of access to courts violates First

Amendment and due process). Under the Prison Litigation Reform Act, 42 U.S.C.

§ 1997e(a), however, a prisoner must exhaust all available administrative

remedies “prior to filing an action with respect to prison conditions under §

1983.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). While Mr.

Griffin did challenge the validity of the disciplinary action through the prison

appeal system, even under the most expansive of readings these appeals did not

allege his conviction and punishment were in retaliation for exercising his First

Amendment rights. The appeals primarily asserted the lack of substantial

evidence to establish his guilt. Mr. Griffin is barred from raising his First

Amendment claim until he exhausts available administrative remedies.

      Finally, the district court addressed Mr. Griffin’s request to expunge his

disciplinary conviction from his record. Because an expungement would result in

a reinstatement of his good time credits, the court styled this portion of the suit as

a habeas corpus action. See Preiser v. Rodriguez, 411 U.S. 475, 490 (1973)


                                           -4-
(habeas corpus proper remedy for prisoner seeking relief resulting in

reinstatement of good time credits); Brown v. Smith, 828 F.2d 1493, 1495 (10th

Cir. 1987) (per curiam) (same). The district court dismissed this claim without

prejudice because Mr. Griffin had failed to exhaust state remedies.

      Defendants contend Mr. Griffin cannot bring a habeas action because

Colorado good time credits do not apply to a prisoner’s eventual discharge date,

but only to his parole eligibility date. See, e.g., Rather v. Suthers, 973 P.2d 1264,

1265 (Colo. 1999); Meyers v. Price, 842 P.2d 229, 232 (Colo. 1992). They argue

the loss or reinstatement of good time credits would not necessarily impact the

length of Mr. Griffin’s confinement, thereby precluding a habeas claim. See

Preiser, 411 U.S. at 487 (habeas corpus appropriate remedy to seek shortened

sentence, or obtain future release). 2 We need not decide whether defendants’

argument is correct because even assuming the district court properly construed

Mr. Griffin’s expungement claim as a habeas corpus action, we decline to grant

Mr. Griffin a COA in order to proceed with the appeal of this issue. See 28

U.S.C. § 2253(c)(1)(A); Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000).

      When, as here,


      2
        In his reply brief, Mr. Griffin states he does not care about regaining his
good time credits and that “compensation could resolve that issue.” Aplt. Reply
Br. at 2. As discussed above, to the extent he is seeking damages under § 1983,
Mr. Griffin is required by Edwards to demonstrate the disciplinary conviction was
invalid. Edwards, 520 U.S. at 645-48. This he has failed to do.

                                          -5-
      a district court denies a habeas petition on procedural grounds
      without reaching the prisoner’s underlying constitutional
      claim, a COA should issue when the prisoner shows, at least,
      that jurists of reason would find it debatable whether the
      petition states a valid claim of the denial of a constitutional
      right and that jurists of reason would find it debatable whether
      the district court was correct in its procedural ruling.

Slack v. McDaniel, 529 U.S. 473, 484 (2000). However,

      [w]here a plain procedural bar is present and the district court is
      correct to invoke it to dispose of the case, a reasonable jurist could
      not conclude either that the district court erred in dismissing the
      petition or that the petitioner should be allowed to proceed further.
      In such a circumstance, no appeal [is] warranted.

Id. Mr. Griffin has failed to allege he exhausted his state court remedies, see

Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992) (state prisoner bringing

federal habeas corpus action bears burden of proving exhaustion), and any present

attempt on his part to do so would be time barred. 3 His claim is therefore

procedurally defaulted, see Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991),

and the district court correctly dismissed it. Accordingly, we deny his request for

a COA and dismiss the appeal of this claim.




      3
        Pursuant to Colo. R. Civ. P. 106(b), Mr. Griffin had thirty days from the
prison officer’s final decision regarding his disciplinary conviction to challenge
the action in state court. Mr. Griffin’s disciplinary conviction was deemed final
on February 22, 2002.

                                         -6-
     In sum, we AFFIRM the district court’s disposition of Mr. Griffin’s § 1983

claims, and we DENY a COA for his habeas action and DISMISS that claim.

                                   ENTERED FOR THE COURT


                                   Stephanie K. Seymour
                                   Circuit Judge




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