                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                          August 25, 2015
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
KEVIN DEWAYNE WINCHESTER,

      Petitioner - Appellant,

v.                                                         No. 15-7031
                                              (D.C. No. 6:14-CV-00260-RAW-KEW)
ROBERT PATTON, Director of the                             (E.D. Okla.)
Oklahoma Department of Corrections,

      Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
                 _________________________________

      State prisoner Kevin Dewayne Winchester, proceeding pro se,1 moved for

habeas relief in federal district court under 28 U.S.C. § 2241 to challenge the

monetary restitution imposed on him in a prison disciplinary proceeding. He alleged


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
         We therefore construe his arguments liberally. Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam); see also United States v. Pinson, 584 F.3d 972, 975 (10th
Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments liberally; this rule of
liberal construction stops, however, at the point at which we begin to serve as his
advocate.”).
three claims: (1) insufficient evidence to support the disciplinary violation in

violation of due process, (2) collection of restitution without a proper order in

violation of due process and equal protection, and (3) state court judicial

discrimination in violation of due process and equal protection.

      The district court dismissed the first two claims for failure to exhaust

administrative remedies and the third claim as meritless. Mr. Winchester has filed a

brief combining a request for a certificate of appealability (COA) and for relief on

the merits.

      A proper § 2241 petition “attacks the execution of a sentence,” Haugh v.

Booker, 210 F.3d 1147, 1148 (10th Cir. 2000); see Brace v. United States, 634 F.3d

1167, 1169 (10th Cir. 2011). It “attacks the fact or duration of a prisoner’s

confinement and seeks the remedy of immediate release or a shortened period of

confinement.” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997).

In contrast, “a prisoner who challenges the conditions of his confinement must do so

through a civil rights action.” Palma–Salazar v. Davis, 677 F.3d 1031, 1035 (10th

Cir. 2012) (citation omitted).

      Mr. Winchester’s claims are not cognizable under § 2241. None concerns the

fact or duration of his confinement or the execution of his sentence. The disciplinary

restitution was not imposed as part of his sentence for his underlying offense. As the

district court said, “his claim cannot be presented in a § 2241 action” because he “did

not lose any earned credits.” ROA at 150. The district court further noted that Mr.

Winchester “presented no authority to support his allegation that his restitution claim

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can be presented in a § 2241 petition.” Id. at 201. He has not done so here. And he

has not shown how the disciplinary proceeding affected his sentence in any way.

      Although Mr. Winchester improperly characterized his claims as sounding

under § 2241, “[f]ederal courts sometimes will ignore the legal label that a pro se

litigant attaches to a motion and recharacterize the motion in order to place it within

a different legal category. They may do so . . . to create a better correspondence

between the substance of a pro se motion’s claim and its underlying legal basis.”

Castro v. United States, 540 U.S. 375, 381-82 (2003) (citations omitted).

      When properly characterized as a civil rights action, it does not require a COA.

See 28 U.S.C. § 2253(c)(1)(A) (COA required to appeal a “final order in a habeas

corpus proceeding in which the detention complained of arises out of process issued

by a State court” (emphasis added)). But even viewing Mr. Winchester’s action as a

42 U.S.C. § 1983 claim, we must affirm dismissal.

      A prisoner challenging disciplinary proceedings under § 1983 must exhaust his

administrative remedies. See 42 U.S.C. § 1997e(a) (“No action shall be brought with

respect to prison conditions under section 1983 of this title, or any other Federal law,

by a prisoner confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.”); Booth v. Churner, 532 U.S.

731, 736 (2001).

        Mr. Winchester devotes most of his brief to describing and criticizing the

disciplinary proceedings, especially how restitution was determined and collected,

and to attempting to show he followed required procedures. We have carefully

                                           -3-
reviewed Mr. Winchester’s brief, the district court order, and the material portions of

the record on appeal, and agree with the district court that Mr. Winchester failed to

exhaust his available administrative remedies to bring his first two claims.

      As to Mr. Winchester’s third claim—that the state district court discriminated

against him—he does not present an argument in his brief as to how the federal

district court may have erred in dismissing this claim. We therefore do not address it

here. Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011) (When “[t]he

argument section of [the] opening brief does not challenge the [district] court’s

reasoning on [a] point[, w]e ... do not address the matter.”)

      Based on the foregoing, we conclude that (1) Mr. Winchester mischaracterized

his claims regarding disciplinary restitution as cognizable under § 2241; (2) viewed

as § 1983 claims, they should be dismissed because he has not exhausted his

administrative remedies; and (3) we do not reach his judicial discrimination claim

because it is not adequately briefed on appeal.

      Although we uphold the district court’s determination that Mr. Winchester on

his first two claims “failed to exhaust, we vacate and remand [those claims] for the

court below to either modify its opinion to specify that the dismissal is without

prejudice, or make a determination on the merits within its permissible scope to do so

under 42 U.S.C. § 1997e(c)(2).” Fitzgerald v. Corrs. Corp. of Am., 403 F.3d 1134,

1140 (10th Cir. 2005); see Gallagher v. Shelton, 587 F.3d 1063 (10th Cir. 2009). We




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affirm dismissal of the third claim.

                                        ENTERED FOR THE COURT



                                        Scott M. Matheson, Jr.
                                        Circuit Judge




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