Dumisai Hasani HOCKADAY, Plaintiff-Appellant, v. 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 *
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 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, 109 S.Ct. 1827, 104 L.Ed.2d 338 (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 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.
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.
Robert E. Bacharach, Circuit Judge