* This order and judgment is not binding precedent, e xcept under the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

### NOV 10 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

DAVID ROBIN WHITMORE,

Plaintiff-Appellant,

v. STEPHEN W. KAISER,

Defendant-Appellee. No. 01-7071 (D.C. No. CIV-98-196-P) (E.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff, David Whitmore, an Oklahoma state prisoner appearing pro se , appeals a district court order denying his motion t o strike a purported settlement-2-

agreement and proceed to trial. Plaintiff alleged that the warden at Davis Correctional Facility, defendant Stephen W. Kaiser, failed to comply with the terms of a settlement agreement reached between the parties in plaintiff’s 42 U.S.C. § 1983 civil rights action against defend ant. The district court ruled that the defendant had substantially complied with the settlement agreement. We affirm. In plaintiff’s § 1983 complaint, he alleged he was falsely accused by prison officials of participation in a prison riot and, as punishment, lost 730 days of earned credit, was fined $200, and was transferred to a maximum security prison. Plaintiff claimed defendant violated his constituti onal rights when, during the prison disciplinary hearings, defendant ignored evi dence that plaintiff was not involved in the riot. Following discovery, the district court dismissed the complaint by reason of settlement on September 29, 2000. On October 17, 2 002, plaintiff filed a motion to strike or set aside the settlement agreement, ch allenging the defendant’s compliance with the settlement agreement. See Floyd v. Ortiz , 300 F.3d 1223, 1226-27 & n.3 (10th Cir. 2002) (holding that trial court retains jurisdiction to enforce a settlement agreement where the order of d ismissal shows an intent to retain jurisdiction or incorporates the settlement agreement). Plaintiff alleged that he agreed to plead guilty to a lesser charge, and that defendant agreed to-3-

restore his lost credit hours, refund his $200 fine , and transfer him to a private prison facility operated by the Corrections Corporation of America (CCA). Numerous motions and responsive pleadings followed. Ultimately, plaintiff agreed that the riot offense charges had been resol ved and that his lost credit hours had been restored, but he still argued he was entitled to restitution of the $200 fine and a transfer to a CCA facility. Defend ant did not address plaintiff’s restitution claim, but he presented evidence of a l etter to plaintiff’s current warden requesting plaintiff’s reclassification to amedium security facility and expressing no objections to transferring plaintiff to a CCA facility. Defendant asserted he had satisfied all of his obligations un der the settlement agreement. The district court denied plaintiff’s motion to str ike the settlement, stating that defendant had substantially complied with the terms of the settlement agreement. On appeal, plaintiff contends he never signed a settlement agreement and that the district court erred in ruling defendant h ad complied with the parties’ agreement. “We review the district court’s interpr etation of the settlement agreement de novo,” Scrivner v. Sonat Exploration Co ., 242 F.3d 1288, 1291 (10th Cir. 2001), and “[w]e review a district court ’s decision regarding the enforcement of a settlement agreement for an abuse of discretion.” Feerer v. Amoco Prod. Co. , 242 F.3d 1259, 1262 (10th Cir. 2001). Upon consi deration-4-

of the plaintiff’s brief, the district court record , and the terms of the settlement agreement, we find no error. Plaintiff’s factual contentions regarding the settl ement agreement are not supported by the record. Although the original rec ord on appeal did not include a copy of a settlement agreement, the district court supplemented the record on appeal at this court’s request by providing a copy of the parties’ settlement agreement and release. Contrary to plaintiff’s ass ertion, the settlement agreement is signed by both parties. It provides that, in ex change for dismissal of the § 1983 complaint, the more serious charges against plainti ff relating to the riot will be withdrawn in exchange for his agreement to plead gu ilty to lessor charges; plaintiff’s lost credit days will be restored; and the defendant will recommend plaintiff’s transfer to a medium security prison an d will not oppose his transfer to a CCA facility. Contrary to plaintiff’s assertion, the settlement agreement does not include any agreement by defendant to provide r estitution of the $200 fine. We agree with the district court that defendant’s l etter to plaintiff’s current warden requesting plaintiff be reclassified as soonas possible for eligibility to a medium security prison, if he is otherwise eligib le, and stating that defendant has no objection to a transfer of plaintiff to a CC A facility satisfied defendant’s remaining obligations under the settlement agreement.-5-

We AFFIRM. The mandate shall issue forthwith.

Entered for the Court

Terrence L. O’Brien Circuit Judge