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. _________________________________

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