UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

 

JAMES EARL COLLVINS, JR., 

 Plaintiff-Appellant, 

v. 

ALAN HENNEBOLD, 

 Defendant-Appellee. 

No. 13-4171 

(D.C. No. 2:11-CV-01079-BSJ) 

(D. Utah)

 

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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 25, 2014

Elisabeth A. Shumaker 

Clerk of Court
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 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. And even if Mr. Collvins were to argue that he was 

entitled to some sort of “due process” proceeding before Mr. Hennebold sent him the 

March 2009 letter (on behalf of the Division) explaining why he was not certified for 

2009, that argument would fail. Mr. Hennebold’s letter did not rest on any resolution 

of disputed facts or any exercise of discretion; it was purely a question of law. “As 

the Supreme Court stated in Codd [v. Velger], ‘if the hearing mandated by the Due 

Process Clause is to serve any useful purpose, there must be some factual dispute’ 

between the individual and the government agency” for a due-process hearing to 

resolve. Rector v. City and County of Denver, 348 F.3d 935, 945 (10th Cir. 2003) 

(quoting Codd v. Velger, 429 U.S. 624, 627 (1977) (per curiam)); see Codd, 429 U.S. 

at 627-28 (a hearing may be required when there is no factual dispute if the 

governmental actor still must exercise discretion in rendering the ultimate decision). 

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