Hockaday v. Core Civic

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 16, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DUMISAI HASANI HOCKADAY,
Plaintiff-Appellant,
No. 18-1093
v. (D.C. No.1:18-CV-00396-LTB)
(D. Colo.)
CORE CIVIC, in its official
capacity; JEFF VARNER, Contract
Worker/Case Manager (Core Civic
Employee) at Crowley Correctional
Facility, in his official and
individual capacities,
Defendants-Appellees.
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ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
_________________________________
This appeal involves a claim brought under 42 U.S.C. § 1983, which
provides a cause of action for constitutional violations. Invoking § 1983,
Mr. Dumisai Hockaday alleged that the owner of a private prison and its
employee had committed a due-process violation by failing to arrange for
*
Oral argument would not materially aid our consideration of the
appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we
have decided the appeal based on the briefs.
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
participation in a judicial telephone conference. But the telephone
conference had been cancelled. The resulting issue is whether a prison
employee violates the right to due process by failing to arrange for
participation in a judicial telephone conference that had already been
cancelled. We conclude that the right to due process was not violated.
I. Standard of Review
The district court reached the same conclusion and dismissed the
due-process claim as frivolous. When reviewing a dismissal for
frivolousness, we apply the abuse-of-discretion standard. Fratus v. Deland,
49 F.3d 673, 674 (10th Cir. 1995). In reviewing the district court’s
exercise of discretion, we consider the underlying test for frivolousness. A
complaint is frivolous if “it lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
II. Due-Process Claim
A due-process violation would have taken place only if Mr.
Hockaday’s inability to participate in the telephone conference had
hindered his prosecution of the earlier case. Peterson v. Shanks, 149 F.3d
1140, 1145 (10th Cir. 1998). But Mr. Hockaday concedes that the court had
cancelled the telephone conference before it was to take place. Because
there was no telephone conference to participate in, the defendants did not
hinder Mr. Hockaday’s ability to pursue his prior litigation. In these
2
circumstances, the district court had discretion to dismiss the due-process
claim as frivolous. 1
III. Leave to Proceed in Forma Pauperis
Though we affirm the dismissal, we grant leave to proceed in forma
pauperis.
Entered for the Court
Robert E. Bacharach
Circuit Judge
1
The court cancelled the telephone conference at the defendants’
request. On appeal, Mr. Hockaday contends that he should have had an
opportunity to object to the defendants’ request. But any such opportunity
had to come from the court, and the court is not named as a party. The only
defendants are the owner of the prison and one of its employees; these
defendants had no way of forcing the court to permit objections to the
defendants’ request.
3