*This order and judgment is not binding precedent, except under the doctrines of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. 

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

### NOV 17 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
SHELBY L. TRUITT, Plaintiff-Appellant,

v. DOLORES RAMSEY, Defendant-Appellee. No. 97-6227 (D.C. No. CIV-96-1864) (W.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON, HENRY, and BRISCOE, 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); 10th Cir. R. 34.1.9. There fore, the case is ordered submitted without oral argument. Plaintiff Shelby Truitt, an Oklahoma state prisonerappearing pro se, appeals the district court’s order granting summary judgment in favor of defendant Dolores Ramsey in this § 1983 civil right s action. We dismiss the-2-

appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). On June 5, 1980, Truitt began serving seven concurr ent sixty-year sentences for robbery with firearms after a felony conviction. On August 30, 1983, he received a misconduct report charging him with participating in a plan to take a correctional officer hostage. As a result o f a disciplinary hearing, he was found guilty and punished with the loss of 365 days of earned credit. On review, a hearing examiner recommended reversal of the deci sion and expungement of the incident because of failure to comply with procedur es regarding consideration of confidential witness testimony, but the disciplinary review board rejected the recommendation, stating: “Errors were corrected an d policy was followed--delay was not excessive.” Truitt wrote to the director o f the Oklahoma Department of Corrections on July 8, 1996, asking for reconsideration and the letter was forwarded to Ramsey for response. Ramsey wrote to Truitt on August 5, 1996, stating: “The decision of the Review Committee on 10-21-83 is final. The disciplinary procedures in effect on that date were followed.” Truitt filed this § 1983 civil rights action on Nov ember 4, 1996, claiming Ramsey (the sole defendant) violated his constituti onal rights by failing to “conduct at least a minimal investigation to determ ine whether there was any merit” to his allegations. He sought declaratory r elief, expungement of the charge, and damages in the amount of $30,000. Afte r requiring the filing of a-3-

Martinez report and after both parties filed motions for su mmary judgment, the magistrate judge recommended that summary judgment be granted in favor of Ramsey. The district court adopted the magistrate’ s recommendation and granted summary judgment for Ramsey on May 28, 1997. We have reviewed the record on appeal and agree that Truitt has no cause of action against Ramsey. Although Truitt’s compla int makes the cursory allegation that Ramsey failed to properly investigate the disciplinary proceeding, we are not convinced Ramsey was under any constitut ional obligation to investigate Truitt’s allegations. More important, the heart of the complaint is that the procedures utilized during the disciplinary pro ceeding were improper. Because Ramsey clearly had no personal involvement in that proceeding, she is simply the wrong defendant. See Moore v. Pemberton , 110 F.3d 22, 23 (7th Cir. 1997) (“[T]he right defendants in a § 1983 suit are the persons whose wrongful acts harmed the plaintiff.”). Because Ramsey was the only named defendant in this action, we conclude Truitt’s appeal is legally frivolous and properly d ismissed under 28 U.S.C. § 1915(e)(2)(B)(i). For the same reasons, we conclud e this appeal will be counted as a “prior occasion” under 28 U.S.C. § 1915(g). In passing, we emphasize that Truitt has no cogniza ble § 1983 claim against any member of the 1983 disciplinary committ ee (or anyone else personally-4-

involved in the 1983 disciplinary proceedings) and, thus, cannot simply refile this action against a different defendant. The underlyi ng basis for Truitt’s claim is his assertion that the disciplinary committee failed to comply with disciplinary policy OP-060401, which required determination of the reli ability of the confidential informant prior to consideration of his testimony. If established, the procedural defect alleged by Truitt would “necessarily imply t he invalidity of the deprivation of his [earned] credits.” Edwards v. Balisok , 117 S. Ct. 1584, 1588 (1997); see Taylor v. Wallace , 931 F.2d 698, 702 (10th Cir. 1991) (findings of p rison disciplinary committee could not be upheld absent i ndication that disciplinary committee made independent finding regarding reliab ility of testimony of confidential informants); Brown v. Smith , 828 F.2d 1493, 1495 (10th Cir. 1987) (statement elicited from confidential informant sho uld not have been given any weight by disciplinary committee absent determinati on of informant’s reliability). In turn, restoration of the earned credits would ne cessarily entitle Truitt to an earlier release (albeit one that would not occur fo r some time due to the length of his sentences). Accordingly, Truitt does not have any cognizable § 1983 claim based on the alleged procedural defectin the disciplinary proceedings absent a successful habeas petition dec laring those proceedings unconstitutional. Edwards , 117 S. Ct. at 1589; Clarke v. Stalder , 121 F.3d 222, 226-27 (5th Cir. 1997); Stone-Bey v. Barnes , 120 F.3d 718, 721-23 (7th Cir.-5-

1997). The appeal is DISMISSED pursuant to 28 U.S.C. § 191 5(e)(2)(B)(i) as frivolous. This appeal will also be counted as a “ prior occasion” under 28 U.S.C. § 1915(g). The mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge