                                                                             F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                              NOV 10 2003
                             FOR THE TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

    DAVID ROBIN WHITMORE,

                Plaintiff-Appellant,

    v.                                                      No. 01-7071
                                                      (D.C. No. CIV-98-196-P)
    STEPHEN W. KAISER,                                      (E.D. Okla.)

                Defendant-Appellee.


                              ORDER AND JUDGMENT            *




Before KELLY , McKAY , and O’BRIEN , 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.

         Plaintiff, David Whitmore, an Oklahoma state prisoner appearing      pro se ,

appeals a district court order denying his motion to strike a purported settlement



*
      This order and judgment is not binding precedent, except under the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.
agreement and proceed to trial. Plaintiff alleged that the warden at Davis

Correctional Facility, defendant Stephen W. Kaiser, failed to comply with the

terms of a settlement agreement reached between the parties in plaintiff’s

42 U.S.C. § 1983 civil rights action against defendant. The district court ruled

that the defendant had substantially complied with the settlement agreement.

We affirm.

      In plaintiff’s § 1983 complaint, he alleged he was falsely accused by prison

officials of participation in a prison riot and, as punishment, lost 730 days of

earned credit, was fined $200, and was transferred to a maximum security prison.

Plaintiff claimed defendant violated his constitutional rights when, during the

prison disciplinary hearings, defendant ignored evidence that plaintiff was not

involved in the riot.

      Following discovery, the district court dismissed the complaint by reason of

settlement on September 29, 2000. On October 17, 2002, plaintiff filed a motion

to strike or set aside the settlement agreement, challenging the defendant’s

compliance with the settlement agreement.         See Floyd v. Ortiz , 300 F.3d 1223,

1226-27 & n.3 (10th Cir. 2002) (holding that trial court retains jurisdiction to

enforce a settlement agreement where the order of dismissal shows an intent to

retain jurisdiction or incorporates the settlement agreement). Plaintiff alleged

that he agreed to plead guilty to a lesser charge, and that defendant agreed to


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restore his lost credit hours, refund his $200 fine, and transfer him to a private

prison facility operated by the Corrections Corporation of America (CCA).

Numerous motions and responsive pleadings followed. Ultimately, plaintiff

agreed that the riot offense charges had been resolved and that his lost credit

hours had been restored, but he still argued he was entitled to restitution of the

$200 fine and a transfer to a CCA facility. Defendant did not address plaintiff’s

restitution claim, but he presented evidence of a letter to plaintiff’s current

warden requesting plaintiff’s reclassification to a medium security facility and

expressing no objections to transferring plaintiff to a CCA facility. Defendant

asserted he had satisfied all of his obligations under the settlement agreement.

The district court denied plaintiff’s motion to strike the settlement, stating that

defendant had substantially complied with the terms of the settlement agreement.

      On appeal, plaintiff contends he never signed a settlement agreement and

that the district court erred in ruling defendant had complied with the parties’

agreement. “We review the district court’s interpretation of the settlement

agreement de novo,”    Scrivner v. Sonat Exploration Co    ., 242 F.3d 1288, 1291

(10th Cir. 2001), and “[w]e review a district court’s decision regarding the

enforcement of a settlement agreement for an abuse of discretion.”     Feerer v.

Amoco Prod. Co. , 242 F.3d 1259, 1262 (10th Cir. 2001). Upon consideration




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of the plaintiff’s brief, the district court record, and the terms of the settlement

agreement, we find no error.

      Plaintiff’s factual contentions regarding the settlement agreement are not

supported by the record. Although the original record on appeal did not include

a copy of a settlement agreement, the district court supplemented the record on

appeal at this court’s request by providing a copy of the parties’ settlement

agreement and release. Contrary to plaintiff’s assertion, the settlement agreement

is signed by both parties. It provides that, in exchange for dismissal of the § 1983

complaint, the more serious charges against plaintiff relating to the riot will be

withdrawn in exchange for his agreement to plead guilty to lessor charges;

plaintiff’s lost credit days will be restored; and the defendant will recommend

plaintiff’s transfer to a medium security prison and will not oppose his transfer to

a CCA facility. Contrary to plaintiff’s assertion, the settlement agreement does

not include any agreement by defendant to provide restitution of the $200 fine.

We agree with the district court that defendant’s letter to plaintiff’s current

warden requesting plaintiff be reclassified as soon as possible for eligibility to

a medium security prison, if he is otherwise eligible, and stating that defendant

has no objection to a transfer of plaintiff to a CCA facility satisfied defendant’s

remaining obligations under the settlement agreement.




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We AFFIRM. The mandate shall issue forthwith.


                                        Entered for the Court



                                        Terrence L. O’Brien
                                        Circuit Judge




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