* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 26 1999 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WALLACE R. WHITE, JR., Plaintiff-Appellant,

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



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BALDOCKand HENRY , Circuit Judges.
After examining the briefs and appellate record, th is 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). T he cause is therefore ordered submitted without oral argument.-2-

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 ahearing, which was not held until four months later. He requested monetary dam ages. 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 hear ing. It held that Mr. White’s claim was deficient because 1) he had not argued th at any prejudice stemmed from the delay, and 2) he failed to allege that a n amed 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 exhau stion in state court. It dismissed those claims without prejudice. We affir m. In August 1991, Mr. White began serving a 25-year s entence for the unlawful possession of marijuana with the intent to distribute after a former conviction of a felony. In April 1996, the Departm ent of Corrections (DOC) released Mr. White into the PPCS program. Almost ayear 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 mi sconduct reports. It1 Mr. White successfully appealed the misconduct re port 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- Harperhearing. -3- removed Mr. White from the PPCS program by administrative action and reincarcerated him. Approximately two months later, the DOC implementednew procedures governing the removal of inmates from the PPCS prog ram 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 pr ogram 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 h earing eight days later. Mr. White was found guilty of using drugs and possessin g a weapon in violation of PPCS program rules. These findings were affirmed o n rehearing. 1 Mr. White’s section 1983 complaint is infirm becaus e 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, do es not constitute a violation of due process . . . where the parolee has finally bee n 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-4-

delay interfered with his ability to call witnesses or present evidence, or explained with any specificity how he was otherwise prejudice d. “Even if the delay was unjustified, that fact alone is of no help to petit ioner if finally a fair hearing was held which satisfied the requirements of the Consti tution.” Id. at 69. Mr. White correctly cites Carey v. Piphus , 435 U.S. 247 (1978), for the proposition that a plaintiff who brings a successfu l section 1983 action based on a due process violation is entitled to nominal damage s 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 b een 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 h is 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. Wh ite 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 defend ant 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-5-

Cir. 1976)). Although Mr. White now alleges person al participation of DOC officials, we do not consider allegations raised fo r 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 all egations 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 inappro priate vehicle for bringing such an action because such defects “if established , [would] necessarily imply the invalidity of the deprivation” of Mr. White’s pre-p arole 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 su ch contentions. See Preiser v. Rodriguez , 411 U.S. 475, 491-94 (1973). To bring those clai ms, 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 P PCS removal hearing. We dismiss without prejudice Mr. White’s claims that h is hearing was procedurally defective or that the hearing officer reached the w rong result.
ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge