UNITED STATES CO URT 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 complain t 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 appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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- 2 - Mr. Collvins was a Utah-licensed boiler inspector. That job required him “to have a certificate of competen cy 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 commissi on issued by the National Boar d 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 afte r he mistakenly cer tified 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 wr itten examination for the certificate of competency. But the Divisi on permanently suspended Mr. Collvins’s certificate in November 2007 upon receiving additional comp laints 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 notif ied 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 Nove mber 2008 that the Division had not proved the factual alle gations in its notice of acti on. The ALJ’s order stated that Mr. Collvins’s “suspension . . . is set aside” and his “c ertificate of competency is reinstated to its probationa ry status pursuant to the October 24, 2007 terms and- 3 - conditions.” Aplt. App. at 122. The Co mmission’s Appeals Board upheld the ALJ’s ruling on March 24, 2009. Id . at 129. Mr. Hennebold, the Commission’s Genera l Counsel, wrote to Mr. Collvins’s attorney in March 2009 to explain why th e Division had not further considered whether he was qualified for certification. He stated that Utah law allows boiler inspections to be performed only by Divi sion employees or inspectors employed by insurance companies, that the Division requires insura nce companies to submit each December the list of persons to be “deputized to c onduct boiler inspections during the coming year,” and that Hartford had not included Mr. Collv ins’s name in its December 2008 s ubmission. Id . at 96. Mr. Hennebold stat ed that the Division would consider Mr. Collvins for cer tification if it received a request from an insurance company to certify him and if Mr. Collvin s produced a commis sion 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 complain t, ruling that those defendant s were entitled to qualified immunity, and we affirmed. See id . at 518, 521 (safety c oncerns justified the Division’s prehearing suspension and ther e was no clearly established law putting defendants on notice that the postsuspens ion delay might be unconstitutional).- 4 - After the district court’s dismissa l of the complaint at issue in Collvins I , Mr. Collvins filed his § 1983 complaint against Mr. Hennebold, alleging that Mr. Hennebold had denied hi m procedural due process when “[t]he Division suspended [his] license without first pr oviding 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 dismissa l in that case, the di strict court announced its intention to dismis s 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 amende d complaint is labeled “Procedural Due Process,” and the sole factual basis of th e amendment is a one-s entence allegation: “When Collvins finally did ha ve a hearing, he prevailed, but the Division, through Hennebold, still refused to rein state 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 moti on to amend on the ground that the amendment would be futile. It reasoned that Mr. Coll vins was not denied due process by the failure to co mply with the Co mmission’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 di smissed the initial complain t against Mr. Hennebold on res judicata grounds.- 5 - ANALYSIS On appeal Mr. Collvins challenges only the denial of leave to amend his complaint; he does not dispute that his initial complaint agai nst Mr. Hennebold was properly dismissed. “[L]ea ve to amend should be freel y given when justice so requires, but a district court may dismis s 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 (10t h Cir. 2013) (ellipsis, brackets, and internal quotation marks omitted ). “A proposed ame ndment is futile if the complaint, as amended, woul d be subject to dismissal.” Anderson v. Suiters , 499 F.3d 1228, 1238 (10th Cir. 2007) (internal quotation ma rks omitted). Ordinarily, we review the district court’s denial of a motion for leave to am end 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 l eave to amend because it determined that amendment would be futile, “our review for abuse of discre tion includes de novo review of the legal basis fo r the finding of futility.” Id

. We can affirm the district court’s d ecision “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 mi sguided. He has utterly failed to identify any process that was due him after the decision of the Commission’s Appeals Board.- 6 - “In procedural due process claims, the deprivation by state action of a constitutionally protected in terest . . . is not in itse lf unconstitutional; what is unconstitutional is the depriva tion 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 pr ocess must prove two elements: that he possessed a constitutionally pr otected liberty or property in terest such that the due process protections were appli cable, and that he was not a fforded 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 co mplaint 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 oppor tunity to be heard at a meaningful time and in a meaningful manner.” PJ ex rel. Jensen v. Wagner , 603 F.3d 1182, 1200 (10th Ci r. 2010) (internal quota tion marks and alteration omitted). Yet Mr. Collvins’s proposed am ended complaint says nothing about the denial of notice or a hearing by Mr. He nnebold. The conduct Mr. Collvins is challenging is the refusal to reinstate hi m, which he blames on Mr. Hennebold. But that is a matter of s ubstance, not procedure. Mr. Collvins is saying that Mr. Hennebold should have taken speci fic action—reinstating him—not that Mr. Hennebold should have given him notice and a hearing before deciding to ignore- 7 - 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 w hy he was not certified for 2009, that argument would fa il. Mr. Hennebold’s letter di d not rest on any resolution of disputed facts or any exer cise of discretion; it was pur ely 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-p rocess 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 renderi ng the ultimate decision). Because Mr. Collvins failed to allege that Mr. He nnebold deprived him of notice or a hearing, the district court di d not err in denying leave to amend. We affirm the judgment of the district court.

Entered for the Court

Harris L Hartz Circuit Judge