                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          FEB 26 1999

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 WALLACE R. WHITE, JR.,

          Plaintiff-Appellant,

 v.                                                    No. 98-6361
                                                  (D.C. No. CV-97-1263)
 DAVID M. BRALEY; HARRY                                (W.D. Okla.)
 KEPHART; GARY HART; HENRY
 HUTCHERSON; WANDA GRAY,

          Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, 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 cause 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       This order and judgment is not binding precedent, except under the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, or 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.
      Wallace R. White brought this action pursuant to 42 U.S.C. § 1983,

alleging prison officials violated his due process rights by removing him from

pre-parole conditional supervision (PPCS) without a hearing, which was not held

until four months later. He requested monetary damages. The district court

dismissed Mr. White’s section 1983 claim insofar as it was based on the state’s

four-month delay in providing a proper removal hearing. It held that Mr. White’s

claim was deficient because 1) he had not argued that any prejudice stemmed

from the delay, and 2) he failed to allege that a named defendant was personally

responsible for the delay. The district court also held Mr. White’s allegations that

his hearing was procedurally defective or that the hearing officer reached the

wrong result were in effect a collateral attack on his removal from PPCS and his

continuing confinement and therefore required exhaustion in state court. It

dismissed those claims without prejudice. We affirm.

      In August 1991, Mr. White began serving a 25-year sentence for the

unlawful possession of marijuana with the intent to distribute after a former

conviction of a felony. In April 1996, the Department of Corrections (DOC)

released Mr. White into the PPCS program. Almost a year later, on April 15,

1997, Mr. White tested positive for marijuana usage during a meeting with his

parole officer. Corrections officials then took Mr. White into custody and

searched him, finding a knife. The DOC filed two misconduct reports. It


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removed Mr. White from the PPCS program by administrative action and re-

incarcerated him.

      Approximately two months later, the DOC implemented new procedures

governing the removal of inmates from the PPCS program in response to the

Supreme Court’s decision in Young v. Harper, 520 U.S. 143 (1997). In Harper,

the Court ruled a participant in Oklahoma’s PPCS program was entitled to the

procedural safeguards set forth in Morrisey v. Brewer, 408 U.S. 471 (1972),

before removal from the program. The DOC notified Mr. White he was entitled

to such a hearing on August 6, 1997, and held the hearing eight days later. Mr.

White was found guilty of using drugs and possessing a weapon in violation of

PPCS program rules. These findings were affirmed on rehearing. 1

      Mr. White’s section 1983 complaint is infirm because he failed to allege

that the four-month delay was actually prejudicial to him. We have held that

“delay [of a parole revocation hearing], per se, does not constitute a violation of

due process . . . where the parolee has finally been afforded the revocation

hearing and the facts have been fairly adjudicated.” McNeal v. United States, 553

F.2d 66, 68 (10th Cir. 1977). Rather, “the delay, taking into consideration all the

circumstances, must also be prejudicial.” Id. Mr. White has not alleged that the


      1
         Mr. White successfully appealed the misconduct report based on the drug
testing, and it was expunged from his record. That, however, did not affect the
DOC’s findings during Mr. White’s post-Harper hearing.

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delay interfered with his ability to call witnesses or present evidence, or explained

with any specificity how he was otherwise prejudiced. “Even if the delay was

unjustified, that fact alone is of no help to petitioner if finally a fair hearing was

held which satisfied the requirements of the Constitution.” Id. at 69.

      Mr. White correctly cites Carey v. Piphus, 435 U.S. 247 (1978), for the

proposition that a plaintiff who brings a successful section 1983 action based on a

due process violation is entitled to nominal damages even if there is no proof of

actual injury. See id. at 266-67. In Piphus, however, the district court found that

the plaintiff’s procedural due process rights had been violated and the question on

appeal was one of damages. See id. at 247, 265. Here, the issue is whether Mr.

White suffered an unconstitutional deprivation of his procedural due process

rights due to the delay. As noted above, this court has ruled that a prisoner in Mr.

White’s position has not had his due process rights violated unless he has shown

prejudice resulting from the delay. Because Mr. White has not alleged such

prejudice, he has not articulated a cause of action under section 1983. The issue

of damages is therefore irrelevant.

      Mr. White also failed to allege that a named defendant was personally

responsible for delaying his PPCS removal hearing. “[P]ersonal participation is

an essential allegation to a § 1983 claim.” Mitchell v. Maynard, 80 F.3d 1433,

1441 (10th Cir. 1996) (quoting Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th


                                           -4-
Cir. 1976)). Although Mr. White now alleges personal participation of DOC

officials, we do not consider allegations raised for the first time on appeal. See

Sac & Fox Nation v. Hanson, 47 F.3d 1061, 1063 (10th Cir. 1995).

      To the extent Mr. White’s complaint is based on allegations that the hearing

itself was procedurally defective or that the DOC’s findings were incorrect, we do

not consider them here. Section 1983 is an inappropriate vehicle for bringing

such an action because such defects “if established, [would] necessarily imply the

invalidity of the deprivation” of Mr. White’s pre-parole status. Edwards v.

Balisok, 520 U.S. 641, 648 (1997); see also Heck v. Humphrey, 512 U.S. 477, 487

(1994). Habeas corpus is the proper vehicle for such contentions. See Preiser v.

Rodriguez, 411 U.S. 475, 491-94 (1973). To bring those claims, Mr. White must

first exhaust his remedies in state court.

See id.

      We AFFIRM the district court and dismiss with prejudice Mr. White’s

claim for money damages based on the delay of his PPCS removal hearing. We

dismiss without prejudice Mr. White’s claims that his hearing was procedurally

defective or that the hearing officer reached the wrong result.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Chief Judge


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