* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 10th Cir. R. 36.3.



### UNITED STATES COURT OF APPEALS Filed 10/28/96 TENTH CIRCUIT

NASIF GADELKARIM, Plaintiff-Appellant,

v. CHUCK SIMMONS, Secretary of Corrections; ROBERT D. HANNIGAN, Warden, Hutchinson Correctional Facility; GLEN LEE, Correctional Officer, Hutchinson Correctional Facility; CHARLES L. BORING, Correctional officer, Hutchinson Correctional Facility; JUDITH WARNER, Nurse, Hutchinson Correctional Facility, Defendants-Appellees. No. 95-3366 (D.C. No. 95-CV-3409) (Dist. Kansas)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, KELLY and LUCERO , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined-2-

unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument. Mr. Nasif Gadelkarim filed this pro se action under42 U.S.C. § 1983 alleging that state officials at the Hutchinson Cor rectional Facility in Kansas violated his Fourteenth Amendment right to due proc ess by denying him permission to call a witness in a prison disciplin ary hearing. Mr. Gadelkarim was disciplined for failure to obey a direct order to leave the prison clinic. He had gone to the clinic to inquire whether, under hi s monitored diet, he could have sausage for dinner rather than chicken. Although acorrectional officer and nurse testified at the hearing that a direct order to leave the clinic was given and disobeyed, Mr. Gadelkarim testified that it was notand wished to call an inmate who was present in the clinic at the time of the in cident as a witness. Mr. Gadelkarim was refused permission to call his witne ss and subsequently received a punishment of fourteen days disciplinary segregat ion and thirty days restriction in privileges. Reviewing Mr. Gadelkarim’s due process right to cal l witnesses under Sandin v. Conner , 115 S. Ct. 2293 (1995), the district court dismis sed Mr. Gadelkarim’s complaint for failure to state a claim . The court then denied Mr. Gadelkarim leave to proceed in forma pauperis on this appeal after finding that-3-

the appeal was legally frivolous and not taken in g ood faith. This matter is before the court on Mr. Gadelkarim’s motion for leave to proceed on appeal without prepayment of costs or fe es. We agree with the district court that Sandincontrols the disposition of this case. Because Mr . Gadelkarim has failed to allege facts that indicate he suffere d an “atypical and significant hardship . . . in relation to the ordinary incident s of prison life,” or that his punishment would “inevitably affect the duration of his sentence,” he has failed to state a basis in law or in fact on which his due pr ocess claim can be founded. Id

. at 2300, 2302. Thus, Mr. Gadelkarim’s appeal is fr ivolous. Neitzke v. Williams , 490 U.S. 319, 325 (1989) ("[A] complaint . . . is f rivolous where it lacks an arguable basis either in law or in fact."). Both the former subsection (d) and the newly enacte d subsection (e)(2)(B)(I) of 28 U.S.C. § 1915 permit us to dismi ss a frivolous appeal. 28 U.S.C. § 1915 as amended by the Prison Litigation R eform Act of 1995, Pub. L. No. 104-134, § 804, 110 Stat. 1321 (effective April 26, 1996). Accordingly, the motion for leave to proceed on app eal without prepayment of costs or fees is DENIED.
ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge