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 Court2 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, Plainti ff-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 su mmary judgment in each of these cases.

* After examining the briefs and appellate records, this panel has determined unanimously that oral argument would not mate rially 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 argu ment. This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel.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 cons olidate these appeals.3 Summary judgment is appropriate “if the mova nt shows that there is no genuine dispute as to any material fact and th e 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 part y, here Whitmore. See Klen v. City of Loveland, 661 F.3d 498, 507-08 (10th Cir. 2011). Fu rther, 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 pr operty 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. 2 007). 42 U.S.C. “[§] 1983 creat es a federal cause of action for ‘the deprivation of any rights, privile ges, 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 th e process afforded him was deficient. See id. In the context of prison disciplinary proceedings, an inmate is not entitled to the full panoply of pr ocedural 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 ch arges 1) be given ad vance written notice of the charges, 2) an opportunity , when consistent with institutional safety and correctional4 goals, to call witnesses and present documentary evidence in his defense, and 3) a written

statement from the factfinder of the eviden ce 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 th e record” to support a disc iplinary conviction. Id. An inmate may not pursue a § 1983 damages claim alleging due process violations occurring during a prison disciplinary proc eeding if granting relief would imply the invalidity of the resulting disciplinary conv iction, unless that conviction has been

invalidated. See Edwards v. Ba lisok, 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 th e course of three separate disciplinary proceedings. In appeal No. 10-6279, Whitmore challenges hi s conviction for being present in an unauthorized area, asserting that prison official s did not allow him to present witnesses in his defense. In appeal No. 10-6280, Wh itmore 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, th e 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.5 A. We assume Whitmore’s claims imp licate a property interest protected by due process To recover on his due process claims, Wh itmore must first establish that, as a result of these challenged disciplinary procee dings, 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 pr oceedings, which incl uded placement in administrative segregation, reduction in cl assification and fines, implicates a liberty interest. They did not “ine vitably 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 (1 995). See Gee v. Pacheco, 627 F.3d 1178, 1193 (10th Cir. 2010) (notin g inmate had no liberty interest in discretionary classification decisions); Gro ssman v. Bruce, 447 F.3d 801, 806 (10th Cir. 2006) (noting placement in admini strative segregation did not im plicate liberty interest). But in each of these cases, ODOC official s 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 disciplinar y proceeding implicates property interest protected by due process, but finding that “fin e” at issue in that case was actually bonus for prison employment, which was not a protect ed property interest); Jones v. Cowley, Nos. 91-6271, 91-6283, 1991 WL 252667, at *2 (10th Cir. No v. 26, 1991) (unpublished) (noting, in case involving inmate’s challenge to prison disciplinary conviction, that “there6 is no doubt that the $15 fine is a depriva tion of a property interest” implicating due process); cf. Burns v. PA Dep’t of Co rr., 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 in terest protected by due process). We further reject Defendants’ argumen t that no property interest has been implicated in these cases beca use prison officials have not ye t deducted any of the three fines at issue here from Whitmore’s prison a ccount. There is no indication that prison officials would not have deducted the fines, had they not been rescinded during the administrative and judicial re view process. Cf. Burns, 544 F.3d at 281-83, 291 (holding fact that prison officials had never sought to quantify asse ssment against inmate, imposed as a result of a misconduct conviction, and th us 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 presen ts almost identical facts: Each of Whitmore’s disciplinary convictions was affirm ed 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 discip linary convictions Whitmore challenges here, rescinded the fines, and ordered rehearing. Eventua lly prison officials di smissed each of the disciplinary charges. The state court, then , dismissed each of Whitmore’s lawsuits as7 moot, and the Oklahoma Court of Criminal Appeals affirmed those dismissals. In each of these cases, the reversal of hi s disciplinary conviction, the refunding of any fine he had already paid, and the elim ination of any unpaid fine cured any due process violation that may have occurred du ring 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 wher e state court overturned disciplinary conviction); Harper v. Lee, 93 8 F.2d 104, 105-06 (8th Cir. 199 1) (per curiam); see also Horne v. Coughlin, 155 F.3d 26, 31 (2d Cir. 1 998) (challenged first disciplinary hearing “became a nullity” after it was overturned wher e “all the penalties” the inmate suffered resulted from his second hearing). Horne re ached this conclusion under circumstances directly analogous to Whitmore’s case, wh ere prison officials overturned the first disciplinary conviction and ordered reheari ng while the inmate’s state-court action seeking judicial review was pend ing. See 155 F.3d at 27-28, 31. Therefore, the district court properly granted Defendants su mmary judgment in these cases. IV. Conclusion For the foregoing reasons, we AFFIRM th e district court’s decision in each of

these cases. We DENY Whitmore’s motion “t o supplement” appeal Nos. 10-6279 and

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

convictions not at issue here. We DENY Defenda nts’ request, in two of these appeals, to impose a strike against Whitmore for purs uing frivolous appeals. See 28 U.S.C. § 1915(g). We do remind Whitmore that, a lthough the district court granted him8 permission to pursue each of these appeals in forma pauperis, see 28 U.S.C. § 1915, he remains obligated to make partial payments un til the filing fees in these cases are paid in

full.

The mandates in these a ppeals shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge