                                                                                F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                JUN 26 2003
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 CORTEZ DARNELL WALTERS,

           Plaintiff-Appellant,
 v.                                                           No. 03-6022
 MELINDA GUILFOYLE; ERICK                              (D.C. No. CIV-01-1690-R)
 FRANKLIN; TERRY TUGLE;                                    (W.D. Oklahoma)
 BUFFERY GUTHRIE; PATRICIA
 YATES; PITTS, Lieutenant; TAYLOR,
 Sergeant, each in their individual and
 official capacities,

           Defendants-Appellees.


                                  ORDER AND JUDGMENT*


Before KELLY, BRISCOE and LUCERO, Circuit Judges.



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

unanimously that oral argument would not materially assist 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        This order is not binding precedent, except under the doctrines of law of the case,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.
       Plaintiff Cortez Walters, an Oklahoma state prisoner appearing pro se, appeals the

district court’s disposition of his 42 U.S.C. § 1983 complaint. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.

       Walters’ § 1983 claims stem from a prison disciplinary matter. On November 24,

2000, he received a misconduct/offense report for individual disruptive behavior.

According to Tim Beene, the reporting officer, he failed to follow directions, ran away,

and had to be apprehended. Walters requested and was granted a disciplinary hearing.

The hearing officer, Merlyn Taylor, found him guilty of the misconduct and punished him

with 15 days of disciplinary segregation, loss of visitation for 45 days, and loss of 365

earned credits. Eric Franklin, the warden, reviewed and affirmed the hearing officer’s

decision. Melinda Guilfoyle, the officer who reviewed Walters’ administrative appeal,

concurred in the decision. In addition to these officers, Walters’ § 1983 complaint named

as defendants Buffery Guthrie, the officer responsible for investigating the misconduct

report; Patricia Yates, the officer assigned to serve as staff representative for Walters;

Virgil Pitts, the shift supervisor; and Terry Tugle, the acting warden.

       Walters alleged a variety of Eighth Amendment violations and due process

violations: Pitts’ failure to dismiss the incident report despite his alleged knowledge of

Walters’ innocence; Guthrie’s refusal to allow Walters to call witnesses in his defense at

the disciplinary hearing; Yates’ failure to fulfill her responsibilities as staff representative;

Taylor’s refusal to allow Walters to call witnesses on his behalf at the disciplinary


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hearing; Franklin’s, Guilfoyle’s and Tugle’s refusal to overturn the disciplinary

conviction; Guthrie’s failure to obtain testimony from an inmate and certain officers; and

Taylor’s failure to provide Walters a meaningful written statement and explanation of the

finding of guilt. Defendants moved to dismiss the complaint for failure to state a claim

or, alternatively, for summary judgment. The magistrate judge recommended dismissal,

stating:

              The Plaintiff has failed to state a claim based on the Eighth
       Amendment and the defect is incurable. This claim should be dismissed
       with prejudice.
              In addition, Mr. Walters has failed to state a valid claim based on the
       alleged ineffectiveness of his staff representative. This claim should be
       dismissed with prejudice. With respect to the alleged inability to call live
       witnesses, Mr. Walters has not had his disciplinary conviction invalidated
       through habeas or expungement proceedings. Consequently, his request for
       monetary damages is premature, requiring dismissal without prejudice.
       Finally, Defendant Taylor is entitled to summary judgment on the claim
       concerning his written explanation for the disciplinary conviction.

ROA, Doc. 37 at 17. The district court adopted the magistrate judge’s recommendation,

stating:

       [T]he Plaintiff’s Eighth Amendment allegations do not state a cognizable
       claim, and are subject to dismissal with prejudice. The Plaintiff has not
       alleged facts sufficient to show that the Defendants wantonly or
       unnecessarily inflicted pain or imposed grossly disproportionate punishment
       in connection with his disciplinary proceeding. See Rhodes v. Chapman,
       452 U.S. 337, 346 (1981). Procedural improprieties in connection with his
       disciplinary proceeding are not sufficient to support an Eighth Amendment
       claim. Brown v. Smith, 828 F.2d 1493 (10th Cir. 1987). The Court further
       agrees with the Magistrate Judge’s conclusion that the defect with regard to
       this claim is incurable, and thus, the Plaintiff’s Eighth Amendment claim
       will be dismissed with prejudice.
               The Plaintiff’s procedural due process claim involving the inability

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       to call live witnesses at his disciplinary hearing is likewise flawed. See
       Edwards v. Balisok, 520 U.S. 641, 646-47 (1997). The Plaintiff can only
       obtain damages based on a claim of this nature if he first obtains a writ of
       habeas corpus or expungement of his conviction. Id. Until then, these
       claims are premature and must be dismissed, as explained by the Magistrate
       Judge.
               The Plaintiff’s claim that the staff representative appointed to
       represent him in the disciplinary proceeding [failed to fulfill his
       responsibilities] is subject to dismissal without prejudice. The Tenth
       Circuit has held that an inmate has no valid claim for ineffective assistance
       in disciplinary proceedings, because inmates ordinarily have no due process
       right to assistance in such a proceeding. Williams v. Rice, 166 F.3d 350,
       1998 WL 863982 (10th Cir. 1998).
               Finally, the Court finds that the Magistrate Judge has correctly
       concluded that Defendant Taylor is entitled to summary judgment on the
       Plaintiff’s claim concerning [] Taylor’s written explanation for the
       disciplinary findings.

Id., Doc. 45 at 1-2.

       After carefully examining the record on appeal, we agree with the district court’s

analysis and disposition of Walters’ claims. See generally Patton v. Denver Post Corp.,

326 F.3d 1148, 1151 (10th Cir. 2003) (“We review the district court’s grant of summary

judgment de novo, applying the same standard as the district court.”); Hartman v.

Kickapoo Tribe Gaming Comm’n, 319 F.3d 1230, 1234 (10th Cir. 2003) (“We review a

dismissal for failure to state a claim . . . de novo.”).

       We AFFIRM for substantially the same reasons set forth in the magistrate’s report

and recommendation and the district court’s order. Walters’ motion to proceed without

prepayment of the appellate filing fee is GRANTED, but Walters is reminded to continue

making partial payments until the appellate filing fee is paid in full. Walters’


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“Application for Settlement,” in which he proclaims his willingness to settle with the

defendants for a sum certain, is DENIED. Walters’ filing on April 25, 2003, which is

construed as a motion to file a supplemental brief is DENIED.1

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge




       1
         The supplemental brief addresses claims not presented and parties not named in
this matter. We will not address issues not raised before the district court. See Tele-
Communications, Inc. v. Commissioner, 104 F.3d 1229, 1233 (10th Cir. 1997).

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