                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                     September 18, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
JAMES EARL COLLVINS, JR.,

             Plaintiff - Appellant,

v.                                                         No. 13-4171
                                                  (D.C. No. 2:11-CV-01079-BSJ)
ALAN HENNEBOLD,                                              (D. Utah)

             Defendant - Appellee.


                            ORDER AND JUDGMENT*


Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.


       The district court dismissed the complaint of Plaintiff James Earl Collvins, Jr.

against Defendant Alan Hennebold under 42 U.S.C. § 1983 and denied his motion to

amend the complaint. Mr. Collvins appeals the denial of his motion to amend.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm because amendment would

be futile.



*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Mr. Collvins was a Utah-licensed boiler inspector. That job required him “to

have a certificate of competency issued by the [Division of Boiler, Elevator and Coal

Mine Safety (the Division) of the Utah Labor Commission (the Commission),] which

in turn requires a commission issued by the National Board of Boiler and Pressure

Vessel Inspectors (‘national board’).” Collvins v. Hackford, 523 F. App’x 515, 516

(10th Cir.) (“Collvins I”), cert. denied, 134 S. Ct. 314 (2013). The Division placed

Mr. Collvins on probation in October 2007 after he mistakenly certified two boilers

that no longer existed. This probation was to end in six months if there were no more

discrepancies and Mr. Collvins retook the written examination for the certificate of

competency. But the Division permanently suspended Mr. Collvins’s certificate in

November 2007 upon receiving additional complaints that he had issued certificates

of inspection for boilers that were no longer in operation. See Collvins I,

523 F. App’x at 517. The Division notified the national board of Mr. Collvins’s

suspension. See id. Two weeks after the suspension, Mr. Collvins went on disability

leave from his employer, Hartford Steam Boiler Company (Hartford), and remained

on disability leave during the time relevant to his complaint.

      Mr. Collvins appealed his suspension to the Commission. An administrative

law judge (ALJ) conducted a hearing and ruled in November 2008 that the Division

had not proved the factual allegations in its notice of action. The ALJ’s order stated

that Mr. Collvins’s “suspension . . . is set aside” and his “certificate of competency is

reinstated to its probationary status pursuant to the October 24, 2007 terms and


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conditions.” Aplt. App. at 122. The Commission’s Appeals Board upheld the ALJ’s

ruling on March 24, 2009. Id. at 129.

         Mr. Hennebold, the Commission’s General Counsel, wrote to Mr. Collvins’s

attorney in March 2009 to explain why the Division had not further considered

whether he was qualified for certification. He stated that Utah law allows boiler

inspections to be performed only by Division employees or inspectors employed by

insurance companies, that the Division requires insurance companies to submit each

December the list of persons to be “deputized to conduct boiler inspections during

the coming year,” and that Hartford had not included Mr. Collvins’s name in its

December 2008 submission. Id. at 96. Mr. Hennebold stated that the Division would

consider Mr. Collvins for certification if it received a request from an insurance

company to certify him and if Mr. Collvins produced a commission from the national

board.

         Mr. Collvins’s original § 1983 action was against the Division’s director and

its chief boiler inspector, claiming that they violated his procedural-due-process

rights by suspending his certificate before holding a hearing and by waiting too long

to hold a postsuspension hearing. See Collvins I, 523 F. App’x at 517. The district

court dismissed that complaint, ruling that those defendants were entitled to qualified

immunity, and we affirmed. See id. at 518, 521 (safety concerns justified the

Division’s prehearing suspension and there was no clearly established law putting

defendants on notice that the postsuspension delay might be unconstitutional).


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      After the district court’s dismissal of the complaint at issue in Collvins I,

Mr. Collvins filed his § 1983 complaint against Mr. Hennebold, alleging that

Mr. Hennebold had denied him procedural due process when “[t]he Division

suspended [his] license without first providing him a hearing, on the advice of

Hennebold.” Aplt. App. at 9. The matter was stayed pending decision in Collvins I.

But when Collvins I affirmed the dismissal in that case, the district court announced

its intention to dismiss the complaint against Mr. Hennebold as barred by

res judicata. Mr. Collvins promptly moved to amend his complaint under

Fed. R. Civ. P. 15(a).

      The sole claim in the proposed amended complaint is labeled “Procedural Due

Process,” and the sole factual basis of the amendment is a one-sentence allegation:

“When Collvins finally did have a hearing, he prevailed, but the Division, through

Hennebold, still refused to reinstate his license.” Aplt. App. at 92. In response to the

motion to amend, Mr. Hennebold argued that the proposed amendment was untimely

and would be futile.

      The district court denied the motion to amend on the ground that the

amendment would be futile. It reasoned that Mr. Collvins was not denied due

process by the failure to comply with the Commission’s decision on appeal because

he could have proceeded under a state statute to seek enforcement of the ALJ’s order.

In addition, the court dismissed the initial complaint against Mr. Hennebold on

res judicata grounds.


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                                       ANALYSIS

       On appeal Mr. Collvins challenges only the denial of leave to amend his

complaint; he does not dispute that his initial complaint against Mr. Hennebold was

properly dismissed. “[L]eave to amend should be freely given when justice so

requires, but a district court may dismiss without granting leave to amend when it

would be futile to allow the plaintiff an opportunity to amend [his] complaint.”

Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1151 (10th Cir. 2013) (ellipsis,

brackets, and internal quotation marks omitted). “A proposed amendment is futile if

the complaint, as amended, would be subject to dismissal.” Anderson v. Suiters,

499 F.3d 1228, 1238 (10th Cir. 2007) (internal quotation marks omitted). Ordinarily,

we review the district court’s denial of a motion for leave to amend the complaint for

an abuse of discretion. See Cohen v. Longshore, 621 F.3d 1311, 1314 (10th Cir.

2010). But if the district court denied leave to amend because it determined that

amendment would be futile, “our review for abuse of discretion includes de novo

review of the legal basis for the finding of futility.” Id.

       We can affirm the district court’s decision “on any ground established by the

record, so long as doing so is not unfair to the appellant.” United States v.

Cesareo-Ayala, 576 F.3d 1120, 1128 n.2 (10th Cir. 2009). We affirm here because

Mr. Collvins’s procedural-due-process claim is fundamentally misguided. He has

utterly failed to identify any process that was due him after the decision of the

Commission’s Appeals Board.


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       “In procedural due process claims, the deprivation by state action of

a constitutionally protected interest . . . is not in itself unconstitutional; what is

unconstitutional is the deprivation of such an interest without due process of law.”

Zinermon v. Burch, 494 U.S. 113, 125 (1990). “[A] person alleging that he has been

deprived of his right to procedural due process must prove two elements: that he

possessed a constitutionally protected liberty or property interest such that the due

process protections were applicable, and that he was not afforded an appropriate level

of process.” Couture v. Bd. of Educ. of Albuquerque Pub. Sch., 535 F.3d 1243, 1256

(10th Cir. 2008) (internal quotation marks omitted).

       Notably absent from Mr. Collvins’s proposed amended complaint is any

statement of what process was denied by Mr. Hennebold. “Although the exact

procedures required by the Constitution depend on the circumstances of a given case,

the fundamental requirement of due process is the opportunity to be heard at a

meaningful time and in a meaningful manner.” PJ ex rel. Jensen v. Wagner,

603 F.3d 1182, 1200 (10th Cir. 2010) (internal quotation marks and alteration

omitted). Yet Mr. Collvins’s proposed amended complaint says nothing about the

denial of notice or a hearing by Mr. Hennebold. The conduct Mr. Collvins is

challenging is the refusal to reinstate him, which he blames on Mr. Hennebold.

But that is a matter of substance, not procedure. Mr. Collvins is saying that

Mr. Hennebold should have taken specific action—reinstating him—not that

Mr. Hennebold should have given him notice and a hearing before deciding to ignore


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the Appeals Board’s ruling. Indeed, the process he was due, and received, was the

ALJ hearing and subsequent administrative appeal. Put another way, the hearing (the

due process) provided to Mr. Collvins established what his substantive right was;

failure of the Division to honor that ruling (as alleged by Mr. Collvins) deprived him

of a substantive right, not procedural due process.

      Because Mr. Collvins failed to allege that Mr. Hennebold deprived him of

notice or a hearing, the district court did not err in denying leave to amend. We

affirm the judgment of the district court.


                                                   Entered for the Court


                                                   Harris L Hartz
                                                   Circuit Judge




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