Grisby v. Boeing Company ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
April 9, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
FREDDIE L. GRISBY,
Plaintiff-Appellant,
v. No. 08-3089
(D.C. No. 6:07-CV-01133-MLB)
BOEING COMPANY, a Foreign (D. Kan.)
Corp., Doing Business in Kansas,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before LUCERO, PORFILIO, and ANDERSON, Circuit Judges.
Plaintiff Freddie L. Grisby appeals the district court’s entry of summary
judgment in favor of his former employer Boeing Co. (“Boeing”) on his claims of
employment discrimination. He does not contend that the district court entered
judgment in error; rather, he argues that his trial counsel’s inadequate
*
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 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
representation requires a remand for further proceedings. He further contends
that his attorney’s errors denied him due process and access to the courts. We
exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
Background
Mr. Grisby was employed by Boeing from 1979 to June 2005 when the
company was sold and all employees were terminated. Represented by retained
counsel, he filed suit under Kansas law in Kansas state court alleging he was
terminated because he is an African-American and because he acted as a
whistleblower in March 2005 concerning whether regulations were followed when
an airplane part was not painted within twenty-four hours of being cleaned. After
Boeing removed the action to federal court based on diversity jurisdiction, see
28 U.S.C. § 1332(a)(1), the district court granted summary judgment to Boeing,
holding that Mr. Grisby had failed to exhaust his administrative remedies on his
race-discrimination claim and that he had failed to establish a prima facie case on
his whistleblowing claim. The court also denied Mr. Grisby’s motion to amend
his complaint to add a claim for retaliation alleging that Boeing gave false and
damaging information about him to the successor employer, thereby thwarting his
chances of being hired by the successor. The court ruled that the request was
untimely and the amendment would be futile, given the non-discriminatory reason
Boeing gave for terminating Mr. Grisby: when it sold the company, Boeing
terminated all employees.
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With new counsel, Mr. Grisby appeals. He argues that the First, Fifth, and
Fourteenth Amendments to the United States Constitution guarantee him the right
to adequate counsel. We disagree.
Analysis
Mr. Grisby first contends that his trial counsel’s inadequate representation
denied him due process guaranteed by the Fifth and Fourteenth Amendments.
“The Due Process Clause guarantees due process only when a person is to be
deprived of life, liberty, or property.” Trentadue v. Integrity Comm., 501 F.3d
1215, 1236 (10th Cir. 2007) (quotation omitted). Mr. Grisby has failed to identify
a constitutionally protected liberty or property interest; therefore, he cannot
invoke the Due Process Clause. We also reject Mr. Grisby’s First Amendment
claim that he was denied access to the courts because he has not shown that “any
denial or delay of access to the court prejudiced him in pursuing litigation.” Treff
v. Galetka, 74 F.3d 191, 194 (10th Cir. 1996). Indeed, Mr. Grisby was not denied
access to the court. Through counsel, he filed a lawsuit, he was afforded an
opportunity for discovery, he participated in pretrial proceedings, and he opposed
Boeing’s summary-judgment motion. 1
Essentially, Mr. Grisby’s complaint is that his trial counsel provided
ineffective assistance in this civil case. “The general rule in civil cases is that the
1
Because we hold that Mr. Grisby was not denied access to the court, we do
not address whether any denial of access prejudiced him.
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ineffective assistance of counsel is not a basis for appeal or retrial.” Nelson v.
Boeing Co., 446 F.3d 1118, 1119 (10th Cir. 2006); cf. id. at 1120 (recognizing
that “the only context in which courts have recognized a constitutional right to
effective assistance of counsel in civil litigation is in immigration cases”).
Therefore, “[c]ounsel’s performance, however deficient, [will not] form the basis
for reversal of the trial court.” Beaudry v. Corr. Corp. of Am., 331 F.3d 1164,
1169 (10th Cir. 2003). Mr. Grisby’s “remedy is not reversal, but rather a legal
malpractice lawsuit against the deficient attorney.” Nelson, 446 F.3d at 1119. 2
Conclusion
The judgment of the district court is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
2
We express no opinion on Mr. Grisby’s trial counsel’s representation.
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