White v. Braley, 10th Cir. (1999)
White v. Braley, 10th Cir. (1999)
FEB 26 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
No. 98-6361
(D.C. No. CV-97-1263)
(W.D. Okla.)
Defendants-Appellees.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
removed Mr. White from the PPCS program by administrative action and reincarcerated him.
Approximately two months later, the DOC implemented new procedures
governing the removal of inmates from the PPCS program in response to the
Supreme Courts decision in Young v. Harper, 520 U.S. 143 (1997). In Harper,
the Court ruled a participant in Oklahomas PPCS program was entitled to the
procedural safeguards set forth in Morrisey v. Brewer, 408 U.S. 471 (1972),
before removal from the program. The DOC notified Mr. White he was entitled
to such a hearing on August 6, 1997, and held the hearing eight days later. Mr.
White was found guilty of using drugs and possessing a weapon in violation of
PPCS program rules. These findings were affirmed on rehearing. 1
Mr. Whites section 1983 complaint is infirm because he failed to allege
that the four-month delay was actually prejudicial to him. We have held that
delay [of a parole revocation hearing], per se, does not constitute a violation of
due process . . . where the parolee has finally been afforded the revocation
hearing and the facts have been fairly adjudicated. McNeal v. United States, 553
F.2d 66, 68 (10th Cir. 1977). Rather, the delay, taking into consideration all the
circumstances, must also be prejudicial. Id. Mr. White has not alleged that the
Mr. White successfully appealed the misconduct report based on the drug
testing, and it was expunged from his record. That, however, did not affect the
DOCs findings during Mr. Whites post-Harper hearing.
1
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delay interfered with his ability to call witnesses or present evidence, or explained
with any specificity how he was otherwise prejudiced. Even if the delay was
unjustified, that fact alone is of no help to petitioner if finally a fair hearing was
held which satisfied the requirements of the Constitution. Id. at 69.
Mr. White correctly cites Carey v. Piphus, 435 U.S. 247 (1978), for the
proposition that a plaintiff who brings a successful section 1983 action based on a
due process violation is entitled to nominal damages even if there is no proof of
actual injury. See id. at 266-67. In Piphus, however, the district court found that
the plaintiffs procedural due process rights had been violated and the question on
appeal was one of damages. See id. at 247, 265. Here, the issue is whether Mr.
White suffered an unconstitutional deprivation of his procedural due process
rights due to the delay. As noted above, this court has ruled that a prisoner in Mr.
Whites position has not had his due process rights violated unless he has shown
prejudice resulting from the delay. Because Mr. White has not alleged such
prejudice, he has not articulated a cause of action under section 1983. The issue
of damages is therefore irrelevant.
Mr. White also failed to allege that a named defendant was personally
responsible for delaying his PPCS removal hearing. [P]ersonal participation is
an essential allegation to a 1983 claim. Mitchell v. Maynard, 80 F.3d 1433,
1441 (10th Cir. 1996) (quoting Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th
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Cir. 1976)). Although Mr. White now alleges personal participation of DOC
officials, we do not consider allegations raised for the first time on appeal. See
Sac & Fox Nation v. Hanson, 47 F.3d 1061, 1063 (10th Cir. 1995).
To the extent Mr. Whites complaint is based on allegations that the hearing
itself was procedurally defective or that the DOCs findings were incorrect, we do
not consider them here. Section 1983 is an inappropriate vehicle for bringing
such an action because such defects if established, [would] necessarily imply the
invalidity of the deprivation of Mr. Whites pre-parole status. Edwards v.
Balisok, 520 U.S. 641, 648 (1997); see also Heck v. Humphrey, 512 U.S. 477, 487
(1994). Habeas corpus is the proper vehicle for such contentions. See Preiser v.
Rodriguez, 411 U.S. 475, 491-94 (1973). To bring those claims, Mr. White must
first exhaust his remedies in state court.
See id.
We AFFIRM the district court and dismiss with prejudice Mr. Whites
claim for money damages based on the delay of his PPCS removal hearing. We
dismiss without prejudice Mr. Whites claims that his hearing was procedurally
defective or that the hearing officer reached the wrong result.