                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     October 10, 2013

                                                                       Elisabeth A. Shumaker
                                   TENTH CIRCUIT                           Clerk of Court



 BENJAMIN WILLIAM FAWLEY,

       Plaintiff - Appellant,

 v.                                                         No. 13-2085
                                                (D.C. No. 2:11-CV-00181-LH-KBM)
 GEO GROUP, INC.; GREGG                                  (D. New Mexico)
 MARCANTEL, in his official capacity as
 Secretary for the New Mexico Department of
 Corrections; DWAYNE BURRIS,
 Correctional Officer; FNU WIGGINS,
 Correctional Officer,

       Defendants - Appellees.


                                ORDER AND JUDGMENT*


Before HARTZ, O’BRIEN and GORSUCH, Circuit Judges.




      * After examining appellant’s brief and the appellate record, and appellant’s
motion requesting oral argument, 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) and 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 This order and judgment is not binding precedent, except under the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.
       Plaintiff Benjamin W. Fawley, appearing pro se, appeals the district court’s grant

of summary judgment. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm, except

in one minor respect.

       Mr. Fawley, a Virginia convict in the custody of the New Mexico Corrections

Department (NMCD) at the Lea County Correctional Facility (LCCF), brought a civil

rights action under 42 U.S.C. § 1983 alleging violations of his constitutional right to

access the courts. Defendants are officials of the NMCD and LCCF and a contract

provider of prison services.

       The United States District Court for the District of New Mexico, following

Martinez v. Aaron, 570 F.2d 317, 320 (10th Cir. 1978), ordered a report on the incidents.

At Defendants’ request, it treated the report as a motion for summary judgment and

granted the motion.

       Mr. Fawley’s appeal raises three challenges to the summary judgment: (1) that the

NMCD denied him access to the courts by refusing photocopying services and by seizing

and reviewing his legal mail, (2) that the NMCD denied him due process by deducting

funds from his prison account and transferring them to a state victim fund without

providing him a hearing, and (3) that he has been denied equal protection because he has

not received the same assistance from his prison in pursuing claims in Virginia courts as

do Virginia convicts incarcerated in Virginia. The first challenge fails because

Mr. Fawley has not presented evidence that any of the litigation allegedly impacted by

Defendants’ conduct was nonfrivolous. The second fails because the district court did
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not abuse its discretion in refusing to allow Mr. Fawley to amend his complaint to add the

due-process claim. And the third fails because it was not raised in district court.

I.     BACKGROUND

       Mr. Fawley received a 40-year sentence in 2006 after pleading guilty to second-

degree murder in Virginia. In 2009 he was transferred to the custody of the NMCD,

which has retained custody since then.

       While in New Mexico, Mr. Fawley brought four different court actions that are

relevant to this appeal. He filed two petitions for certiorari in the United States Supreme

Court, one challenging a Fourth Circuit decision rejecting his habeas petition and the

other challenging the Fourth Circuit’s denial of his § 1983 claim that a state grand jury

had improperly indicted him and the state trial court had held a hearing without his being

present. The Clerk of the United States Supreme Court returned both of Mr. Fawley’s

petitions because he did not submit a notarized affidavit or declaration of indigency and

did not submit the lower court opinions. Mr. Fawley alleges that his failure was the result

of NMCD policy denying photocopying rights to those more than $300 in arrears. He

also pursued two cases in Virginia courts, a petition for a writ of mandamus in the state

supreme court and a consolidated petition for writ of coram nobis and claim of fraud

upon the court in Mathews County Circuit Court. NMCD officials denied Mr. Fawley’s

requests to make photocopies for these actions on the ground that his claims were not

“qualified legal claim[s]” under NMCD policy because they were not claims in the courts

of New Mexico, the Tenth Circuit, or the United States Supreme Court. R., Vol. IV at
                                             3
413 (Proposed Findings & Recommended Disposition at 46, Fawley v. GEO Group, Inc.,

No. 11-0181 LH/KBM (D.N.M. Mar. 18, 2013)).

      Also of relevance, it appears that Mr. Fawley received two boxes of legal mail that

were opened to determine if they contained contraband but not to review the content of

the documents.

II.   ACCESS TO COURTS

      Mr. Fawley alleges that he was denied access to the courts in that (1) he was

denied photocopying rights because his account was more than $300 in arrears, (2) he

was denied photocopying rights on the ground that his claims were not qualified legal

claims, and (3) his legal mail was seized and opened. The district court’s opinion

asserted multiple reasons for denying all these claims. We need address only the district

court’s determination that Mr. Fawley’s underlying claims were frivolous.

      Prisoners have a constitutional right of meaningful access to the courts. See

Bounds v. Smith, 430 U.S. 817, 821 (1977). But the right of access to the courts is

implicated only if the underlying claim is nonfrivolous, arguable, and “more than hope.”

Christopher v. Harbury, 536 U.S. 403, 415–16 (2002).

      The district court correctly concluded that the claims underlying the certiorari

petitions were time-barred and otherwise procedurally defective. The court also correctly

concluded that Mr. Fawley’s state-court actions were frivolous because the claims were

contrary to prior rulings of the Supreme Court of Virginia. Mr. Fawley presents no

argument and cites no authority to contest the court’s conclusion that his claims were
                                            4
frivolous. He only reiterates his bald claim that NMCD policies are unconstitutional.

Thus we deny Mr. Fawley’s claim that he has been denied access to the courts.

III.   DUE PROCESS

       Mr. Fawley moved to amend his complaint to include a claim that the NMCD

denied him due process of law by taking deductions from his prison earnings for the New

Mexico Victim’s Fund without granting him a hearing. The district court denied the

motion to amend because his “claim is foreclosed by pertinent case law.” R., Vol. I at

166 (Memorandum Op. & Order at 4, Fawley, No. 11-0181 LH/KBM (D.N.M. Sept. 21,

2011)). We review the denial for abuse of discretion. See Cohen v. Longshore, 621 F.3d

1311, 1313 (10th Cir. 2010).

       Mr. Fawley cites no authority supporting his due-process claim. And an

unpublished opinion of this court has rejected an identical claim. See Brady v. Tansy,

13 F.3d 404 (10th Cir. 1993) (unpublished table decision). Because the amendment

would have been futile, the court properly denied it. See Bradley v. Val-Mejias, 379 F.3d

892, 901 (10th Cir. 2004).

IV.    EQUAL PROTECTION

       Mr. Fawley alleges on appeal that he has been denied equal protection because the

NMCD will not assist him in pursuing claims in courts outside New Mexico as he would

be assisted if incarcerated in Virginia. But because he did not raise an equal-protection

claim in district court, we do not address it here. See United States v. Jarvis, 499 F.3d

1196, 1201 (10th Cir. 2007) (“[A] litigant’s failure to raise an argument before the district
                                             5
court generally results in forfeiture on appeal . . . .”).

V.     FAILURE TO SERVE DEFENDANT WIGGINS

       On one point, however, we cannot affirm the district court’s decision. The court’s

dismissal of the claim against all Defendants, including Defendant Wiggins, was with

prejudice. But Wiggins was not served with process. Because Wiggins was never

served, the court lacked personal jurisdiction over him. See Omni Capital Int’l v. Rudolf

Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). Accordingly, any dismissal of the claim

against him must be without prejudice. See Brereton v. Bountiful City Corp., 434 F.3d

1213, 1216, 1218 (10th Cir. 2006).

VI.    CONCLUSION

       We AFFIRM the summary judgment below except that we remand to the district

court to revise the judgment in favor of Wiggins to a dismissal without prejudice. We

GRANT Defendants’ motion to strike Mr. Fawley’s supplemental briefing.

                                             ENTERED FOR THE COURT



                                             Harris L Hartz
                                             Circuit Judge




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