UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

DAVID ROBIN WHITMORE, 

 Plaintiff - Appellant, 

v. 

RONALD HILL, Unit Mgr/Disciplinary 

Hearing Officer; PEGGY HAUNG, 

Disciplinary Hearing Officer; 

LIEUTENANT JONES, Shift Supervisor; 

MARK BOWEN, Deputy Warden; and 

DAVID MILLER, Warden, 

Defendants - Appellees. 

No. 10-6279 

(D.C. No. 5:10-CV-00413-M) 

(W.D. Okla.) 

DAVID ROBIN WHITMORE, 

 Plaintiff - Appellant, 

v. 

PEGGY HAUNG; MS. PLUME; RALPH 

FORD; LIEUTENANT JONES; MARK 

BOWEN; DAVID MILLER; and 

SERGEANT ELLINGTON, 

Defendants - Appellees. 

No. 10-6280 

(D.C. No. 5:10-CV-00412-M) 

(W.D. Okla.) 

 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 10, 2012

Elisabeth A. Shumaker 

Clerk of Court
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DAVID ROBIN WHITMORE, 

 Plaintiff - Appellant, 

v. 

RALPH FORD; DAVID MILLER; and 

RONALD HILL, 

Defendants - Appellees. 

No. 11-6035 

(D.C. No. 5:10-CV-00448-M) 

(W.D. Okla.) 

ORDER AND JUDGMENT*

Before LUCERO, EBEL and GORSUCH, Circuit Judges. 

 

 In each of these three appeals, Plaintiff-Appellant David Whitmore, an inmate in 

the Oklahoma Department of Corrections (“ODOC”), challenges the dismissal of his 42 

U.S.C. § 1983 claims alleging that he was denied due process in three separate prison 

disciplinary proceedings. Having jurisdiction under 28 U.S.C. § 1291, we AFFIRM the 

district court’s denial of relief in each case.1

 

I. Standard of review 

 The district court granted Defendants summary judgment in each of these cases. 

 

*After examining the briefs and appellate records, this panel has determined 

unanimously that oral argument would not materially assist the determination of these 

appeals. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). These cases are 

therefore 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. 

1

 We GRANT Whitmore’s motion to consolidate these appeals. 
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Summary judgment is appropriate “if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). We review a summary judgment decision de novo, viewing the evidence in 

the light most favorable to the non-moving party, here Whitmore. See Klen v. City of 

Loveland, 661 F.3d 498, 507-08 (10th Cir. 2011). Further, because Whitmore is 

proceeding pro se, we liberally construe his pleadings. See Haines v. Kerner, 404 U.S. 

519, 520 (1972) (per curiam). 

II. General due process principles governing Whitmore claims 

“[A] State shall not ‘deprive any person of life, liberty, or property without due 

process of law.’ U.S. Const. amend. XIV, § 1.” Moore v. Bd. of County Comm’rs, 507 

F.3d 1257, 1259 (10th Cir. 2007). 42 U.S.C. “[§] 1983 creates a federal cause of action 

for ‘the deprivation of any rights, privileges, or immunities secured by the Constitution 

and law.’” Id. 

An inmate pursuing § 1983 relief for the deprivation of due process must first 

establish that he was deprived of an interest protected by due process. See id. If the 

inmate can establish that, he must further show that the process afforded him was 

deficient. See id. In the context of prison disciplinary proceedings, an inmate is not 

entitled to the full panoply of procedural protections afforded a defendant in a criminal 

prosecution. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Due process, instead, 

requires that the inmate facing disciplinary charges 1) be given advance written notice of 

the charges, 2) an opportunity, when consistent with institutional safety and correctional 
4 

goals, to call witnesses and present documentary evidence in his defense, and 3) a written 

statement from the factfinder of the evidence he relied upon and the reason for the 

disciplinary action. See Superintendent v. Hill, 472 U.S. 445, 454 (1985). There must 

also be “some evidence in the record” to support a disciplinary conviction. Id. 

An inmate may not pursue a § 1983 damages claim alleging due process violations 

occurring during a prison disciplinary proceeding if granting relief would imply the 

invalidity of the resulting disciplinary conviction, unless that conviction has been 

invalidated. See Edwards v. Balisok, 520 U.S. 641, 643, 648 (1997). In these cases, each 

of the disciplinary convictions at issue has been invalidated. 

III. Whitmore’s disciplinary proceedings

 In these three cases, Whitmore alleged that ODOC officials deprived him of 

procedural due process during the course of three separate disciplinary proceedings. In 

appeal No. 10-6279, Whitmore challenges his conviction for being present in an 

unauthorized area, asserting that prison officials did not allow him to present witnesses in 

his defense. In appeal No. 10-6280, Whitmore challenges a disciplinary conviction for 

failing to obey an order, asserting that he was denied the opportunity to present witnesses, 

one of his witnesses lied, the hearing officer was biased, and Whitmore’s conviction was 

affirmed by a biased reviewer. And in appeal No. 11-6035, Whitmore challenges 

another disciplinary conviction for disobeying orders, alleging that he did not receive 

notice of the charge before his hearing. 

 
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A. We assume Whitmore’s claims implicate a property interest protected by 

due process 

 To recover on his due process claims, Whitmore must first establish that, as a 

result of these challenged disciplinary proceedings, he was deprived of an interest 

protected by due process. See Moore, 507 F.3d at 1259. None of the sanctions he 

received as a result of these disciplinary proceedings, which included placement in 

administrative segregation, reduction in classification and fines, implicates a liberty 

interest. They did not “inevitably affect the duration of his sentence” nor “impose[] 

atypical and significant hardship on the inmate in relation to the ordinary incidents of 

prison life,” Sandin v. Conner, 515 U.S. 472, 484, 486-87 (1995). See Gee v. Pacheco, 

627 F.3d 1178, 1193 (10th Cir. 2010) (noting inmate had no liberty interest in 

discretionary classification decisions); Grossman v. Bruce, 447 F.3d 801, 806 (10th Cir. 

2006) (noting placement in administrative segregation did not implicate liberty interest). 

But in each of these cases, ODOC officials did impose a fine of $10. We will 

assume that a fine implicates Whitmore’s property interests protected by due process. 

See Anderson v. Cunningham, 319 F. App’x 706, 710-11 (10th Cir. 2009) (unpublished) 

(noting fine imposed in prison disciplinary proceeding implicates property interest 

protected by due process, but finding that “fine” at issue in that case was actually bonus 

for prison employment, which was not a protected property interest); Jones v. Cowley, 

Nos. 91-6271, 91-6283, 1991 WL 252667, at *2 (10th Cir. Nov. 26, 1991) (unpublished) 

(noting, in case involving inmate’s challenge to prison disciplinary conviction, that “there 
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is no doubt that the $15 fine is a deprivation of a property interest” implicating due 

process); cf. Burns v. PA Dep’t of Corr., 544 F.3d 279, 282-83, 291(3d Cir. 2008) 

(holding “assessment” of inmate’s account in an unspecified amount, as punishment for 

misconduct conviction, was a property interest protected by due process). 

 We further reject Defendants’ argument that no property interest has been 

implicated in these cases because prison officials have not yet deducted any of the three 

fines at issue here from Whitmore’s prison account. There is no indication that prison 

officials would not have deducted the fines, had they not been rescinded during the 

administrative and judicial review process. Cf. Burns, 544 F.3d at 281-83, 291 (holding 

fact that prison officials had never sought to quantify assessment against inmate, imposed 

as a result of a misconduct conviction, and thus had never deducted that amount from his 

prison account, did not preclude assessment from implicating inmate’s property interests 

for purposes of due process). 

B. Whitmore received all the process he was due 

 Procedurally, each of these cases presents almost identical facts: Each of 

Whitmore’s disciplinary convictions was affirmed administratively by the warden and the 

ODOC director, or their designees. Whitmore then sought judicial review in Oklahoma 

state court. While those three lawsuits were pending, the ODOC director or his designee 

overturned each of the disciplinary convictions Whitmore challenges here, rescinded the 

fines, and ordered rehearing. Eventually prison officials dismissed each of the 

disciplinary charges. The state court, then, dismissed each of Whitmore’s lawsuits as 
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moot, and the Oklahoma Court of Criminal Appeals affirmed those dismissals. 

In each of these cases, the reversal of his disciplinary conviction, the refunding of 

any fine he had already paid, and the elimination of any unpaid fine cured any due 

process violation that may have occurred during the initial disciplinary hearing and thus 

afforded Whitmore the process he was due. See Ragan v. Lynch, 113 F.3d 875, 876-77 

(8th Cir. 1997) (addressing situation where state court overturned disciplinary 

conviction); Harper v. Lee, 938 F.2d 104, 105-06 (8th Cir. 1991) (per curiam); see also 

Horne v. Coughlin, 155 F.3d 26, 31 (2d Cir. 1998) (challenged first disciplinary hearing 

“became a nullity” after it was overturned where “all the penalties” the inmate suffered 

resulted from his second hearing). Horne reached this conclusion under circumstances 

directly analogous to Whitmore’s case, where prison officials overturned the first 

disciplinary conviction and ordered rehearing while the inmate’s state-court action 

seeking judicial review was pending. See 155 F.3d at 27-28, 31. Therefore, the district 

court properly granted Defendants summary judgment in these cases. 

IV. Conclusion 

 For the foregoing reasons, we AFFIRM the district court’s decision in each of 

these cases. We DENY Whitmore’s motion “to supplement” appeal Nos. 10-6279 and 

10-6280 with documents and information about another of Whitmore’s disciplinary 

convictions not at issue here. We DENY Defendants’ request, in two of these appeals, to 

impose a strike against Whitmore for pursuing frivolous appeals. See 28 U.S.C. 

§ 1915(g). We do remind Whitmore that, although the district court granted him 
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permission to pursue each of these appeals in forma pauperis, see 28 U.S.C. § 1915, he 

remains obligated to make partial payments until the filing fees in these cases are paid in 

full. 

 The mandates in these appeals shall issue forthwith. 

ENTERED FOR THE COURT 

David M. Ebel 

Circuit Judge