UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARVIN HAMMONS,

Petitioner-Appellant,

v.

RON WARD, Warden,

Respondent-Appellee.

No. 02-6326

(D.C. No. 02-CV-543-F)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before TACHA, Chief Circuit Judge, McKAY and PORFILIO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

This is a pro se 28 U.S.C. § 2241 state prisoner appeal.1 Mr. Hammons, a prisoner incarcerated at the Great Plains Correctional Facility in Oklahoma, was charged with disciplinary misconduct for obtaining money from his inmate mandatory savings account under false pretenses. Mr. Hammons was found guilty of the offense and disciplined. After exhausting his administrative remedies, Mr. Hammons filed a petition in the district court alleging that there was no evidence to support the disciplinary conviction. The district court denied the petition, and Mr. Hammons applied to this court for a certificate of appealability.

In order for this court to grant a certificate of appealability, Petitioner must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To do so, Petitioner must demonstrate "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citations and internal quotations omitted).

We will not disturb disciplinary actions by prison administrators so long as there is "some evidence" to support the action. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985). Such a review does not require "examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence." Id. We must merely determine "whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. at 455-56.

Oklahoma law provides that funds from an inmate's mandatory savings "account may be used by the inmate for fees or costs in filing a civil or criminal action . . . ." Okla. Stat. tit. 57, § 549(A)(5) (2003). The record indicates that Mr. Hammons requested that a check for $400.00 be issued from his account to pay fees charged by the Court Clerk for the District Court of Oklahoma County for photocopying various documents in connection with Mr. Hammons' state court criminal proceeding. Such costs are not associated with the filing of a civil or criminal action. Accordingly, we find that the disciplinary action was supported by "some evidence."

We have carefully reviewed Mr. Hammons' brief, the district court's disposition, the magistrate judge's report and recommendation, and the record on appeal. Nothing in the facts, the record on appeal, or Mr. Hammons' brief raises an issue which meets our standards for the grant of a certificate of appealability. Therefore, for substantially the same reasons as set forth by the district court in its Order of October 4, 2002, we cannot say "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner." Id.

We DENY Petitioner's request for a certificate of appealability and DISMISS the appeal. Appellant's motion to proceed in forma pauperis on appeal is GRANTED.

Entered for the Court

Monroe G. McKay

Circuit Judge