*This order and judgment is not binding precedent, except under the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

FEB 4 2005

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GRAYLING CHURN,

Plaintiff-Appellant,

v.

RON WARD, individually, and as

Director of Department of Corrections,

Defendant-Appellee.

No. 04-6132

(Western District of Oklahoma)

(D.C. No. CV-03-449-M)

ORDER AND JUDGMENT*

Before EBEL, MURPHY, and McCONNELL, Circuit Judges. 

After examining the briefs and the appellate record, this court 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). 

Accordingly, the case is ordered submitted without oral argument.
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Proceeding pro se, Grayling Churn appeals the district court’s dismissal of

the civil rights complaint he brought pursuant to 42 U.S.C. § 1983. Churn, an

Oklahoma state prisoner, complains that Defendant deprived him of his personal

property without due process of law. Churn asserts that he purchased a color

television set with his own funds and that officials at the Oklahoma State

Penitentiary permitted him to keep the television in his cell. When Churn was

transferred to the Oklahoma State Reformatory, he was told that because of a drop

in his earned credit level, he was no longer permitted to keep the television in his

cell. The television is currently being stored in the property room at the

Oklahoma State Reformatory.

Defendant moved to dismiss Churn’s complaint. The district court granted

the motion, concluding that the complaint failed to state a claim for which relief

may be granted. Specifically, the court first ruled that Churn had no

constitutionally protect interest in possessing a television in his cell. Hatten v.

White, 275 F.3d 1208, 1210 (10th Cir. 2002) (“While an inmate’s ownership of

property is a protected property interest that may not be infringed without due

process, there is a difference between the right to own property and the right to

possess property while in prison.”). The district court concluded that Churn’s due

process claim also failed because the confiscation of his television did not
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impose an “atypical and significant hardship” on him. Cosco v. Uphoff , 195 F.3d

1221, 1223-24 (10th Cir. 1999). 

We have reviewed the record, the appellate briefs, and the applicable law

and conclude that the dismissal of Churn’s § 1983 complaint was proper. 

Accordingly, the district court’s order dismissing Churn’s complaint is affirmed

for substantially the reasons stated in the magistrate judge’s report and

recommendation dated February 27, 2004 and in the district court order dated

April 5, 2004. Churn’s motion to proceed in forma pauperis is granted. Churn

is reminded that he remains obligated to continue making partial payments until

his appellate filing fee is paid in full. See 28 U.S.C. § 1915(b). 

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge