UNITED STATES COURT OF APPEALS
Filed 10/28/96
TENTH CIRCUIT
NASIF GADELKARIM,
Plaintiff-Appellant,
v.
CHUCK SIMMONS, Secretary of
Corrections; ROBERT D.
No. 95-3366
HANNIGAN, Warden, Hutchinson
(D.C. No. 95-CV-3409)
Correctional Facility; GLEN LEE,
(Dist. Kansas)
Correctional Officer, Hutchinson
Correctional Facility; CHARLES L.
BORING, Correctional officer,
Hutchinson Correctional Facility;
JUDITH WARNER, Nurse,
Hutchinson Correctional Facility,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions 10th Cir. R. 36.3.
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 cause is
therefore ordered submitted without oral argument.
Mr. Nasif Gadelkarim filed this pro se action under 42 U.S.C. § 1983
alleging that state officials at the Hutchinson Correctional Facility in Kansas
violated his Fourteenth Amendment right to due process by denying him
permission to call a witness in a prison disciplinary 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 his monitored diet, he could have
sausage for dinner rather than chicken. Although a correctional 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 not and wished to call an inmate
who was present in the clinic at the time of the incident as a witness. Mr.
Gadelkarim was refused permission to call his witness and subsequently received
a punishment of fourteen days disciplinary segregation and thirty days restriction
in privileges.
Reviewing Mr. Gadelkarim’s due process right to call witnesses under
Sandin v. Conner, 115 S. Ct. 2293 (1995), the district court dismissed 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
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the appeal was legally frivolous and not taken in good faith.
This matter is before the court on Mr. Gadelkarim’s motion for leave to
proceed on appeal without prepayment of costs or fees. We agree with the district
court that Sandin controls the disposition of this case. Because Mr. Gadelkarim
has failed to allege facts that indicate he suffered an “atypical and significant
hardship . . . in relation to the ordinary incidents 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 process claim can be founded. Id.
at 2300, 2302. Thus, Mr. Gadelkarim’s appeal is frivolous. Neitzke v. Williams,
490 U.S. 319, 325 (1989) ("[A] complaint . . . is frivolous where it lacks an
arguable basis either in law or in fact.").
Both the former subsection (d) and the newly enacted subsection
(e)(2)(B)(I) of 28 U.S.C. § 1915 permit us to dismiss a frivolous appeal. 28
U.S.C. § 1915 as amended by the Prison Litigation Reform Act of 1995, Pub. L.
No. 104-134, § 804, 110 Stat. 1321 (effective April 26, 1996).
Accordingly, the motion for leave to proceed on appeal without prepayment
of costs or fees is DENIED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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