                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                       September 23, 2005
                            FOR THE TENTH CIRCUIT
                                                                          Clerk of Court


    CORTEZ DARNELL WALTERS,

                Plaintiff - Appellant,
                                                          No. 04-7127
    v.                                              (D.C. No. CV-03-342-P)
                                                          (E.D. Okla.)
    STEVEN BECK, Head Facility
    Warden; RUSSELL GOLDEN, Case
    Manager; ROYCE MELTON, Captain
    over Segregation Unit; MELINDA
    GUILFOYLE, Department of
    Corrections Administrator,

                Defendants - Appellees.




                             ORDER AND JUDGMENT           *




Before HENRY, ANDERSON , and TYMKOVICH , 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      This order and judgment is not binding precedent, except under the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.
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.

      Plaintiff Cortez Darnell Walters, a prisoner proceeding pro se, appeals the

district court’s grant of summary judgment in favor of defendants on his claims

brought pursuant to 42 U.S.C. § 1983. He asserts that he was kept in

administrative segregation past the date he should have been released from

segregation, in violation of his constitutional rights and prison policy. We affirm.

                                    Background

      During the pertinent time period, Mr. Walters was in the custody of the

Oklahoma Department of Corrections at the Mack Alford Correctional Center. He

complains about the length of time he was required to serve in the Special

Housing Unit (SHU) as discipline. On June 14, 2002, he committed two

misconduct violations and was sentenced to thirty days in the SHU on each

charge. 1 On June 27, 2002, he committed one menacing violation and one

disobedience violation and was again sentenced to thirty days in the SHU on each

charge. Prison officials determined that his release date from the SHU was

October 14, 2002, running the disciplinary sentences consecutively. Mr. Walters,

on the other hand, asserted that the various thirty-day sentences ran concurrently



1
      Mr. Walters also was docked various earned credits for each disciplinary
conviction. Those disciplinary actions are not before us in this appeal.

                                         -2-
and, therefore, he was to have been released from the SHU on August 9, 2002.

He contended that keeping him in the SHU past August 9 without additional due

process protections, which he did not receive, violated his constitutional rights

and prison policies.   2
                           He was released from the SHU into the general population

on September 26, 2002.

       The district court carefully reviewed the challenged disciplinary actions and

sentences, and concluded that Mr. Walters’ release from SHU on September 26,

2002, was within the range of his disciplinary sentence that expired on

October 14, 2002. Accordingly, the district court granted defendants’ motion for

summary judgment.

       Mr. Walters appeals, challenging the district court’s ruling on his claim that

he was wrongfully kept in administrative segregation past August 9, 2002.

Defendants do not dispute the district court’s finding that Mr. Walters exhausted

administrative remedies on the claims outlined above. Mr. Walters has abandoned

on appeal his remaining claims, which were dismissed without prejudice for

failure to exhaust administrative remedies.




2
      Mr. Walters does not allege that he was denied due process in the
proceedings resulting in his placement in the SHU.

                                            -3-
                                     Pending motion

       We first address Mr. Walters’ pending motion. He has filed a pleading

entitled “sworn affidavit,” which we construe as a motion to strike appellees’

brief. He maintains that the brief on appeal is akin to a prohibited successive

motion for summary judgment because it contains arguments and authorities not

presented to the district court. An appellee “may defend the judgment won below

on any ground supported by the record . . . .”     Tinkler v. United States ex rel.

F.A.A. , 982 F.2d 1456, 1461 n.4 (10th Cir. 1992) (quotation omitted). The motion

is denied.

                                          Merits

       We review de novo the district court’s grant of summary judgment. Sealock

v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). Summary judgment is

appropriate if there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986); Fed. R. Civ. P. 56(c). Mr. Walters is representing himself on appeal,

so his pleadings will be construed liberally. See Haines v. Kerner, 404 U.S. 519,

520 (1972).

       “To state a claim under § 1983, Plaintiff[] must allege that [he was]

deprived of a right ‘secured by the Constitution and laws’ of the United States

and that this deprivation was committed under color of state law.”        Yanaki v.


                                            -4-
Iomed, Inc. , 415 F.3d 1204, 1207 (10th Cir. 2005) (citing    Am. Mfrs. Mut. Ins. Co.

v. Sullivan , 526 U.S. 40, 49-50 (1999)).

      The undisputed facts show that Mr. Walters was disciplined for various

violations, for which he was sentenced to the SHU for thirty days each. The

dispute is over whether the sentences were to run concurrently or consecutively.

See Aplt. Br. Part B, at 18a. The record establishes that defendants consistently

applied them to run consecutively.    See, e.g. , R. doc. 31, Attach. G, at 4.

Mr. Walters has cited no authority and proffered no justification for his position

that the sentences were to run concurrently. In essence, he asserts a constitutional

right not to serve additional time in the SHU for additional violations. This does

not state a constitutional claim cognizable under § 1983. Accordingly, the district

court properly granted summary judgment to defendants.

      The district court granted Mr. Walters’ motion to proceed on appeal

without prepayment of costs and fees. He is reminded that he is obligated to

continue making partial payments until the entire fee has been paid.




                                            -5-
      Mr. Walters’ motion to strike defendants’ appellate brief is denied. The

judgment of the district court is AFFIRMED. The mandate shall issue forthwith.



                                                  Entered for the Court



                                                  Stephen H. Anderson
                                                  Circuit Judge




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