* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### OCT 9 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TOMMY LEE CLEATON,

Petitioner - Appellant,

v. H. N. SCOTT and DREW EDMONDSON,

Respondents - Appellees. No. 02-6144 (D.C. No. 01-CV-815-C) (W.D. Oklahoma)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and the appellate record , this panel has determined unanimously that oral argument would notmaterially 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 ora l argument. This is a pro se § 2241 state prisoner appeal. In 1993, Appellant was1 We note that the magistrate judge’s Report and Rec ommendation

indicated that Appellant claimed a loss of 528 days a year. However, Appellant’s brief indicates that the loss was 314 days a year. -2- convicted of attempted robbery by fear and sentence d to twenty years’ imprisonment. His direct and post-conviction appea ls were unsuccessful. While incarcerated, Appellant was transferred to a differ ent prison facility. Even though he claimed that he was “medically unassigned” at hi s previous facility, Appellant was assigned to “work at the Prisoner’s Public Work s Program, [perform] Community Service, and [work in the prison] kitchen .” Aplt. Br. at 15. Appellant failed to report to his assigned job. Af ter a hearing, Appellant received a disciplinary misconduct which included fifteen days of segregation and thirty days of lost canteen privileges. Appellant also cl aimed that he was reassigned to a lower earned-credit level resulting in a loss of 314 days of earned credit a year. 1 Aplt. Br. at 3. In his habeas petition, Appellant claimed due proce ss and Eighth Amendment violations. The magistrate judge recomme nded that the petition be denied, reporting that Appellant received all of th e process constitutionally due in prison disciplinary proceedings. The magistrate ju dge also recommended that Appellant’s Eighth Amendment claim be denied since such a claim is proper in a § 1983 action but not in a habeas petition. After consideration of Appellant’s objections, the district court adopted the magistra te judge’s recommendation and-3-

denied the petition. Mr. Cleaton appeals to this c ourt. In order for this court to grant a certificate of appealability, Appellant must make “a substantial showing of the denial of a cons titutional right.” 28 U.S.C. § 2253(c)(2). To do so, Petitioner must demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) th e petition should have been resolved in a different manner or that the issues p resented were adequate to deserve encouragement to proceed further.” Slack v . McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). We have carefully reviewed Mr. Cleaton’s brief, the district court’s disposition, and the record on appeal. Nothing in the facts, the record on appeal, or Appellant’s brief raises an issue which meets ou r standards for the grant of a certificate of appealability. We agree that Appell ant received all of the process constitutionally due in prison disciplinary proceed ings and that Appellant’s Eighth Amendment is a § 1983 claim, not a habeas cl aim. Therefore, for substantially the same reasons as set forth by the district court in its Order of April 30, 2002, adopting the magistrate judge’s rec ommendation, we cannot say that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different m anner.” Id.-4-

We DENY Appellant’s request for a certificate of appealabi lity and
DISMISS the appeal.

Entered for the Court

Monroe G. McKay Circuit Judge