Whitmore v. Parker , 525 F. App'x 865 ( 2013 )


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  •                                                            FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS May 30, 2013
    TENTH CIRCUIT         Elisabeth A. Shumaker
    Clerk of Court
    DAVID WHITMORE,
    No. 12-6189
    Petitioner-Appellant,
    (D.C. No. 11-CV-01064-R)
    (W.D. Okla.)
    v.
    DAVID PARKER, Warden,
    Respondent-Appellee.
    DAVID WHITMORE,
    Petitioner-Appellant,
    No. 12-6190
    v.
    (D.C. No. 10-CV-01408-R)
    (W.D. Okla.)
    DAVID MILLER, LCF Warden,
    Respondent-Appellee.
    DAVID WHITMORE,
    Petitioner-Appellant,
    No. 12-6191
    v.
    (D.C. No. 10-CV-01409-R)
    (W.D. Okla.)
    DAVID MILLER, Warden,
    Respondent-Appellee.
    DAVID ROBIN WHITMORE,
    Plaintiff-Appellant,
    v.                                                      No. 12-6268
    (D.C. No. 10-CV-00430-M)
    LT. JONES; LIEUTENANT                                   (W.D. Okla.)
    HARDING; MARK BOWEN, Deputy
    Warden; BENOIT,
    Defendants-Appellees.
    ORDER AND JUDGMENT *
    Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.
    Before us are four cases filed by David Whitmore, an Oklahoma state
    prisoner. In three, Mr. Whitmore applies for certificates of appealability (COAs)
    to contest district courts’ denials of his 
    28 U.S.C. § 2241
     petitions. In the fourth,
    Mr. Whitmore appeals the dismissal of his civil rights claims under 
    42 U.S.C. § 1983
    . We discuss each case in turn.
    In No. 12-6189, Mr. Whitmore alleges that prison officials failed to provide
    video footage he needed to contest disciplinary charges against him. It is surely
    *
    After examining the briefs and the 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). The 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    order and judgment is not binding precedent except under the doctrines of law of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.
    -2-
    true, as he notes, that denying a prisoner access to potentially exculpatory
    evidence can implicate his procedural due process rights. See generally Wolff v.
    McDonnell, 
    418 U.S. 539
    , 563, 566 (1974). But no court can compel production
    of evidence that doesn’t exist. And that’s what the district court found to be the
    case here. The prison submitted sworn testimony from an investigator explaining
    that, after careful review, she found that no camera captured the incident that
    resulted in the disciplinary charges against Mr. Whitmore. The district court
    credited this testimony and held, accordingly, that no due process violation
    existed. Mr. Whitmore says this is subterfuge. What really happened, he insists,
    is that the investigator deliberately waited until the relevant footage was
    automatically recorded over before trying to find it. But the investigator swore
    that she searched for relevant footage well before any “recording over” could
    occur and the district court found the testimony credible. Neither can we say on
    the evidence before us that reasonable jurists would debate whether this finding is
    clearly erroneous, the standard Mr. Whitmore must meet to obtain a COA.
    In No. 12-6191, Mr. Whitmore alleges that he was denied early release
    credits earned as a result of his participation in various prison classes. The
    district court some time ago rejected this petition as untimely under the pertinent
    statute of limitations, and this court some time ago declined Mr. Whitmore a COA
    on this question. See Whitmore v. Miller, 466 F. App’x 705 (10th Cir. 2012)
    (unpublished). After this court issued its order, however, Mr. Whitmore returned
    -3-
    to the district court and filed a motion seeking relief from that judgment,
    rearguing points already raised and lost. The district court denied the motion and
    we see no debatable question in that disposition that might merit a COA at this
    stage either.
    In No. 12-6190, Mr. Whitmore alleges the denial of credits earned from
    still other classes he took, classes that arguably were not the subject of litigation
    in No. 12-6191. The district court found, however, that Mr. Whitmore again
    failed to file his complaint within the statute of limitations. Mr. Whitmore
    pursues various arguments why the district court erred. But those arguments are
    fully addressed in the magistrate judge’s report and again in the district court’s
    order and we see no colorable claim of error in any of their analysis. Before us,
    Mr. Whitmore additionally attacks the magistrate judge for raising the limitations
    question sua sponte. But Mr. Whitmore does not suggest that the government had
    deliberately and intelligently waived the issue, so we see no colorable suggestion
    that the court abused its discretion in raising it. See Wood v. Milyard, 
    132 S. Ct. 1826
    , 1833-34 (2012).
    Finally, we turn to Mr. Whitmore’s civil rights action, No. 12-6268, which
    is before this court for a second time. In his complaint, Mr. Whitmore alleged
    retaliation and threats from several prison guards, as well as irregularities in the
    ensuing investigation. After determining that Mr. Whitmore failed to exhaust
    available administrative remedies, the district court granted summary judgment to
    -4-
    the defendants. In Mr. Whitmore’s first appeal, he argued that prison officials
    thwarted his attempt to exhaust the grievance process and, accordingly, that he
    could not be faulted for failing to exhaust that process. This court remanded the
    case to the district court, asking it to investigate this assertion further. See
    Whitmore v. Jones, 456 F. App’x 747, 748, 750 (10th Cir. 2012) (unpublished).
    The district court has now done just that. A magistrate judge issued a
    careful ten page report explaining that, as a matter of undisputed evidence, “Mr.
    Whitmore failed to properly complete the administrative process, and that failure
    cannot be blamed on prison officials.” Report & Recommendation, Whitmore v.
    Jones, No. CIV-10-430-M, at 10 (W.D. Okla. July 16, 2012), ECF No. 66. After
    entertaining objections from Mr. Whitmore, the district court adopted the report
    in full and granted summary judgment once again to the defendants. Order,
    Whitmore v. Jones, No. CIV-10-430-M (W.D. Okla. Sept. 25, 2012), ECF No. 72.
    After reviewing all that and Mr. Whitmore’s appeal for ourselves, we have little
    to add to the district court’s analysis, and we affirm for substantially the reasons
    it offered.
    We pause only to briefly address two of Mr. Whitmore’s contentions. First,
    Mr. Whitmore objects that the magistrate and the district court misread the
    prison’s grievance policy and so miscalculated the date his grievance was due.
    But he bases his argument on a case interpreting California’s grievance processes,
    which calculate timeliness quite differently than Oklahoma’s. We perceive no
    -5-
    error in the district court’s or the magistrate’s calculations. And the remaining
    issue that Mr. Whitmore raises — whether the district court should have
    appointed him counsel — was fully addressed in a separate order that Mr.
    Whitmore never appealed.
    By way of summary, in Nos. 12-6189, 12-6190, and 12-6191 we decline to
    grant a COA and dismiss the appeals. In No. 12-6268, we affirm the district
    court’s judgment. We grant Mr. Whitmore’s motion to submit his reply brief late
    and to amend his reply in No. 12-6268, but find that neither submission changes
    our decision. Likewise, in Nos. 12-6189 and 12-6268 we grant Mr. Whitmore’s
    motion for judicial notice of his four previously-filed cases, but find that they do
    not change our decision. In each case, we grant Mr. Whitmore’s motion to
    proceed in forma pauperis and remind him that he must continue making partial
    payments until the filing fees he owes are paid in full. All other motions are
    denied.
    ENTERED FOR THE COURT
    Neil M. Gorsuch
    Circuit Judge
    -6-
    

Document Info

Docket Number: 12-6189, 12-6190, 12-6191, 12-6268

Citation Numbers: 525 F. App'x 865

Judges: Gorsuch, Hartz, O'Brien

Filed Date: 5/30/2013

Precedential Status: Non-Precedential

Modified Date: 8/6/2023