(D.C. No. 2:11-CV-01079-BSJ) (D. Utah).
Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.
ORDER AND JUDGMENT[*]
Harris L Hartz, Circuit Judge.
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.
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 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).
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.
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 ...