                                                                   FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit

                   UNITED STATES COURT OF APPEALS           January 10, 2012

                                                          Elisabeth A. Shumaker
                               TENTH CIRCUIT                  Clerk of Court



DAVID ROBIN WHITMORE,

     Plaintiff - Appellant,                       No. 10-6279
                                          (D.C. No. 5:10-CV-00413-M)
v.                                               (W.D. Okla.)

RONALD HILL, Unit Mgr/Disciplinary
Hearing Officer; PEGGY HAUNG,
Disciplinary Hearing Officer;
LIEUTENANT JONES, Shift Supervisor;
MARK BOWEN, Deputy Warden; and
DAVID MILLER, Warden,

     Defendants - Appellees.



DAVID ROBIN WHITMORE,

     Plaintiff - Appellant,                       No. 10-6280
                                          (D.C. No. 5:10-CV-00412-M)
v.                                               (W.D. Okla.)

PEGGY HAUNG; MS. PLUME; RALPH
FORD; LIEUTENANT JONES; MARK
BOWEN; DAVID MILLER; and
SERGEANT ELLINGTON,

     Defendants - Appellees.
    DAVID ROBIN WHITMORE,

          Plaintiff - Appellant,                               No. 11-6035
                                                       (D.C. No. 5:10-CV-00448-M)
    v.                                                        (W.D. Okla.)
    RALPH FORD; DAVID MILLER; and
    RONALD HILL,

          Defendants - Appellees.


                                   ORDER AND JUDGMENT*


Before LUCERO, EBEL and GORSUCH, Circuit Judges.


         In each of these three appeals, Plaintiff-Appellant David Whitmore, an inmate in

the Oklahoma Department of Corrections (“ODOC”), challenges the dismissal of his 42

U.S.C. § 1983 claims alleging that he was denied due process in three separate prison

disciplinary proceedings. Having jurisdiction under 28 U.S.C. § 1291, we AFFIRM the

district court’s denial of relief in each case.1

I. Standard of review

         The district court granted Defendants summary judgment in each of these cases.

       *After examining the briefs and appellate records, this panel has determined
unanimously that oral argument would not materially assist the determination of these
appeals. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). These cases are
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 GRANT Whitmore’s motion to consolidate these appeals.
                                                   2
Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). We review a summary judgment decision de novo, viewing the evidence in

the light most favorable to the non-moving party, here Whitmore. See Klen v. City of

Loveland, 661 F.3d 498, 507-08 (10th Cir. 2011). Further, because Whitmore is

proceeding pro se, we liberally construe his pleadings. See Haines v. Kerner, 404 U.S.

519, 520 (1972) (per curiam).

II. General due process principles governing Whitmore claims

       “[A] State shall not ‘deprive any person of life, liberty, or property without due

process of law.’ U.S. Const. amend. XIV, § 1.” Moore v. Bd. of County Comm’rs, 507

F.3d 1257, 1259 (10th Cir. 2007). 42 U.S.C. “[§] 1983 creates a federal cause of action

for ‘the deprivation of any rights, privileges, or immunities secured by the Constitution

and law.’” Id.

       An inmate pursuing § 1983 relief for the deprivation of due process must first

establish that he was deprived of an interest protected by due process. See id. If the

inmate can establish that, he must further show that the process afforded him was

deficient. See id. In the context of prison disciplinary proceedings, an inmate is not

entitled to the full panoply of procedural protections afforded a defendant in a criminal

prosecution. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Due process, instead,

requires that the inmate facing disciplinary charges 1) be given advance written notice of

the charges, 2) an opportunity, when consistent with institutional safety and correctional
                                             3
goals, to call witnesses and present documentary evidence in his defense, and 3) a written

statement from the factfinder of the evidence he relied upon and the reason for the

disciplinary action. See Superintendent v. Hill, 472 U.S. 445, 454 (1985). There must

also be “some evidence in the record” to support a disciplinary conviction. Id.

       An inmate may not pursue a § 1983 damages claim alleging due process violations

occurring during a prison disciplinary proceeding if granting relief would imply the

invalidity of the resulting disciplinary conviction, unless that conviction has been

invalidated. See Edwards v. Balisok, 520 U.S. 641, 643, 648 (1997). In these cases, each

of the disciplinary convictions at issue has been invalidated.

III. Whitmore’s disciplinary proceedings

       In these three cases, Whitmore alleged that ODOC officials deprived him of

procedural due process during the course of three separate disciplinary proceedings. In

appeal No. 10-6279, Whitmore challenges his conviction for being present in an

unauthorized area, asserting that prison officials did not allow him to present witnesses in

his defense. In appeal No. 10-6280, Whitmore challenges a disciplinary conviction for

failing to obey an order, asserting that he was denied the opportunity to present witnesses,

one of his witnesses lied, the hearing officer was biased, and Whitmore’s conviction was

affirmed by a biased reviewer. And in appeal No. 11-6035, Whitmore challenges

another disciplinary conviction for disobeying orders, alleging that he did not receive

notice of the charge before his hearing.


                                             4
       A. We assume Whitmore’s claims implicate a property interest protected by
       due process

       To recover on his due process claims, Whitmore must first establish that, as a

result of these challenged disciplinary proceedings, he was deprived of an interest

protected by due process. See Moore, 507 F.3d at 1259. None of the sanctions he

received as a result of these disciplinary proceedings, which included placement in

administrative segregation, reduction in classification and fines, implicates a liberty

interest. They did not “inevitably affect the duration of his sentence” nor “impose[]

atypical and significant hardship on the inmate in relation to the ordinary incidents of

prison life,” Sandin v. Conner, 515 U.S. 472, 484, 486-87 (1995). See Gee v. Pacheco,

627 F.3d 1178, 1193 (10th Cir. 2010) (noting inmate had no liberty interest in

discretionary classification decisions); Grossman v. Bruce, 447 F.3d 801, 806 (10th Cir.

2006) (noting placement in administrative segregation did not implicate liberty interest).

       But in each of these cases, ODOC officials did impose a fine of $10. We will

assume that a fine implicates Whitmore’s property interests protected by due process.

See Anderson v. Cunningham, 319 F. App’x 706, 710-11 (10th Cir. 2009) (unpublished)

(noting fine imposed in prison disciplinary proceeding implicates property interest

protected by due process, but finding that “fine” at issue in that case was actually bonus

for prison employment, which was not a protected property interest); Jones v. Cowley,

Nos. 91-6271, 91-6283, 1991 WL 252667, at *2 (10th Cir. Nov. 26, 1991) (unpublished)

(noting, in case involving inmate’s challenge to prison disciplinary conviction, that “there

                                              5
is no doubt that the $15 fine is a deprivation of a property interest” implicating due

process); cf. Burns v. PA Dep’t of Corr., 544 F.3d 279, 282-83, 291(3d Cir. 2008)

(holding “assessment” of inmate’s account in an unspecified amount, as punishment for

misconduct conviction, was a property interest protected by due process).

       We further reject Defendants’ argument that no property interest has been

implicated in these cases because prison officials have not yet deducted any of the three

fines at issue here from Whitmore’s prison account. There is no indication that prison

officials would not have deducted the fines, had they not been rescinded during the

administrative and judicial review process. Cf. Burns, 544 F.3d at 281-83, 291 (holding

fact that prison officials had never sought to quantify assessment against inmate, imposed

as a result of a misconduct conviction, and thus had never deducted that amount from his

prison account, did not preclude assessment from implicating inmate’s property interests

for purposes of due process).

       B. Whitmore received all the process he was due

       Procedurally, each of these cases presents almost identical facts: Each of

Whitmore’s disciplinary convictions was affirmed administratively by the warden and the

ODOC director, or their designees. Whitmore then sought judicial review in Oklahoma

state court. While those three lawsuits were pending, the ODOC director or his designee

overturned each of the disciplinary convictions Whitmore challenges here, rescinded the

fines, and ordered rehearing. Eventually prison officials dismissed each of the

disciplinary charges. The state court, then, dismissed each of Whitmore’s lawsuits as
                                              6
moot, and the Oklahoma Court of Criminal Appeals affirmed those dismissals.

       In each of these cases, the reversal of his disciplinary conviction, the refunding of

any fine he had already paid, and the elimination of any unpaid fine cured any due

process violation that may have occurred during the initial disciplinary hearing and thus

afforded Whitmore the process he was due. See Ragan v. Lynch, 113 F.3d 875, 876-77

(8th Cir. 1997) (addressing situation where state court overturned disciplinary

conviction); Harper v. Lee, 938 F.2d 104, 105-06 (8th Cir. 1991) (per curiam); see also

Horne v. Coughlin, 155 F.3d 26, 31 (2d Cir. 1998) (challenged first disciplinary hearing

“became a nullity” after it was overturned where “all the penalties” the inmate suffered

resulted from his second hearing). Horne reached this conclusion under circumstances

directly analogous to Whitmore’s case, where prison officials overturned the first

disciplinary conviction and ordered rehearing while the inmate’s state-court action

seeking judicial review was pending. See 155 F.3d at 27-28, 31. Therefore, the district

court properly granted Defendants summary judgment in these cases.

IV. Conclusion

       For the foregoing reasons, we AFFIRM the district court’s decision in each of

these cases. We DENY Whitmore’s motion “to supplement” appeal Nos. 10-6279 and

10-6280 with documents and information about another of Whitmore’s disciplinary

convictions not at issue here. We DENY Defendants’ request, in two of these appeals, to

impose a strike against Whitmore for pursuing frivolous appeals. See 28 U.S.C.

§ 1915(g). We do remind Whitmore that, although the district court granted him
                                              7
permission to pursue each of these appeals in forma pauperis, see 28 U.S.C. § 1915, he

remains obligated to make partial payments until the filing fees in these cases are paid in

full.

        The mandates in these appeals shall issue forthwith.



                                          ENTERED FOR THE COURT



                                          David M. Ebel
                                          Circuit Judge




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