FILED

United States Court of Appeals

Tenth Circuit

January 29, 2013

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAMEA S. TENISON,

Plaintiff - Appellant, No. 12-7037

v. (E.D. Okla.)

MIKE MORGAN, Correctional

Officer; DEBBIE MORTON; PAUL

BRANSCUM, Correctional Officer,

Defendants - Appellees.

(D.C. No. 6:11-CV-00202-JHP-SPS)

ORDER AND JUDGMENT*

Before HARTZ, ANDERSON, and MURPHY, 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, appellant’s request for oral argument is denied and the case is

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This order and judgment is not binding precedent except under the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.
Proceeding pro se, Oklahoma state prisoner Damea S. Tenison appeals the

district court’s dismissal of the civil rights complaint he brought pursuant to 42

U.S.C. § 1983. Defendant, Debbie Morton, moved to dismiss all of Tenison’s

due process and retaliation claims. After considering Morton’s arguments and

Tenison’s response, the court dismissed Tenison’s complaint as frivolous because

it failed to state a claim. See 28 U.S.C § 1915(e). The court also denied

Tenison’s motion to amend his complaint to add additional defendants. Tenison

then brought this appeal. 

In August 2009, Tenison and another inmate were involved in an incident

that resulted in both men receiving medical treatment at a local emergency room. 

Tenison received a misconduct report and was subsequently found guilty of a

battery misconduct charge. Tenison appealed the conviction and Defendant

Moore ordered a rehearing on the charge. The rehearing was conducted on

December 18, 2009, and Tenison was again found guilty of the charge. The

discipline imposed included restitution for the cost of medical services. 

In his complaint, Tenison alleged his due process rights were violated in

the second disciplinary proceeding.1

 The district court concluded Tenison failed

1

In his response to Defendant Moore’s motion to dismiss, Tenison

complained that the imposition of the restitution sanction means he will be unable

to purchase personal hygiene products from the prison canteen and, thus,

Defendant’s actions have resulted in a violation of his Eighth Amendment rights. 

See Penrod v. Zavaras, 94 F.3d 1399, 1405-06 (10th Cir. 1996) (recognizing,

(continued...)

-2-
to state a due process claim because the record showed he was (1) provided with

advance notice of the charges, (2) furnished an opportunity to present a defense,

and (3) given a written statement of the reasons for the disciplinary decision. See

Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974). Additionally, the disciplinary

sanctions were supported by some evidence. See Superintendent, Mass.

Correctional Inst. v. Hill, 472 U.S. 445, 454 (1985).

Tenison also asserted a claim Defendants retaliated against him by

imposing a harsh restitution sanction because he refused to lie about the basis of

the altercation between himself and the other inmate that gave rise to the

misconduct conviction. The district court concluded Tenison’s allegations of

retaliation were wholly conclusory and not supported by allegations of specific

facts, rendering them insufficient to state a valid claim. 

Although Tenison asserts on appeal that he was not provided with required

notice that restitution could be imposed as a sanction or that the amount would be

substantial, his assertion is belied by the record. The Disciplinary Hearing Report

1

(...continued)

under some circumstances, an inmate may be able to show an Eighth Amendment

violation relating to the denial of hygienic items). The district court did not

directly resolve this claim, but Tenison again alludes to it in his appellate brief. 

Tenison’s claim is not ripe because it is based only on speculation. He has not

alleged that he has, in fact, been unable to obtain personal hygiene products and

has thereby suffered an injury. See Chavez ex rel M.C. v. N.M. Pub. Educ. Dep’t,

621 F.3d 1275, 1281 (10th Cir. 2010) (“A case [is fit for judicial resolution] if it

does not involve uncertain or contingent events that may not occur at all (or may

not occur as anticipated).”). 

-3-
documenting the hearing held on August 26, 2009, clearly shows that restitution

was imposed as one of the sanctions. Tenison’s signature appears at the bottom

of the document next to the statement: “I have received a copy of the

disposition.” By the time the second hearing was held, therefore, Tenison had

actual notice restitution was a possible sanction that could be imposed at the

rehearing and he was aware of the amount.2

 

Tenison also challenges the district court’s refusal to permit him to amend

his complaint. Tenison attempted to amend his complaint three times.3

 He

asserts he was entitled to amend as a matter of course because the amendments

were filed within the time periods set out in Fed. R. Civ. P. 15(a)(1). We need

not determine whether the district court erred by not permitting him to amend his

2

Because we conclude Tenison cannot state a procedural due process claim

because he received adequate notice of the restitution sanction, it is not necessary

to resolve the more difficult question of whether he has a property interest in his

Oklahoma prison trust fund account. See Clark v. Wilson, 625 F.3d 686, 691

(10th Cir. 2010) (recognizing that Sandin v. Conner, 515 U.S. 472 (1995),

abrogated Tenth Circuit law “holding that prisoners have a protected property

interest in the funds in their prison trust accounts”). 

3

The first proposed amendment was denied for failure to comply with the

district court’s local rules. The second proposed amendment was denied because

Tenison sought to add Corrections Corporation of America (“CCA”) as a

defendant but did not make any allegations against CCA in the amended

complaint. The third proposed amendment sought to add two CCA supervisors as

defendants. It was denied by the district court because Tenison did not allege any

deliberate intentional acts by the supervisors. See Serna v. Colo. Dep’t of

Corrections, 455 F.3d 1146, 1151 (10th Cir. 2006) (“Supervisors are only liable

under § 1983 for their own culpable involvement in the violation of a person’s

constitutional rights.”). 

-4-
complaint because, even assuming error, Tenison has failed to show any effect on

his substantial rights. See Fed. R. Civ. P. 61. Although he argues the

amendments would have allowed him to correct the names of the defendants and

prove that the requirements set out in Wolff were not satisfied, any such

amendments would be futile because the complaint, even if amended as proposed,

would still fail to state a claim. 

Upon review of Tenison’s appellate brief and de novo review of the entire

record on appeal, this court affirms the district court’s dismissal of Tenison’s

complaint for substantially those reasons set forth in the district court’s order

dated April 25, 2012. Tenison 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

-5-