United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 96-3176

Amit Kapoor, Appellant, v. Kathy Walker; Gretchen Schuster; Rick Noyes, Appellees.

Submitted: November 27, 1997 Filed: December 8, 1997

Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM.

Amit Kapoor sued three passport officials for damages, claiming they conspired to delay issuing him a passport and thus deprived him of his right to travel because of 1bias against his national origin. The district court denied defendantsÂ’ motion to dismiss, but later granted their motion for summary judgment. Kapoor appeals.

We construe Kapoor§ 1983 does not apply to persons acting under color of federal law). Reviewing de novo, see Earnest v. Courtney, 64 F.3d 365, 366-67 (8th Cir. 1995) (per curiam), we conclude that summary judgment was proper on these claims. First, while the freedom to travel internationally is protected by the Fifth Amendment§ 213 (person seeking passport must submit written application containing true recital of each fact required by law). Second, notwithstanding the attestation of KapoorÂ’s father that defendants made statements regarding the tendency of foreigners to falsify documents to obtain passports, we believe Kapoor failed to create a triable issue on his equal protection claim. See Klinger v. Department of Corrections, 31 F.3d 727, 731 (8th Cir. 1994) (equal protection claim depends upon different treatment of similarly situated individuals), cert. denied, 513 U.S. 1185 (1995).

We also conclude that summary judgment was proper on Kapoor§§ 1981 and 1985. See Premachandra v. Mitts, 753 F.2d 635, 641 n.7 (8th Cir. 1985). We believe, however, that Kapoor failed to demonstrate a genuine issue of material fact as to whether defendants participated in a conspiracy or deprived him of his equal rights under the law. See Mian v. Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1087-88 (2nd Cir. 1993) (elements of claims under §§ 1981 and 1985), cert. denied, 116 S. Ct. 88 (1995).

Appeal from the United States District Court for the Southern District of Iowa.

[UNPUBLISHED]

KapoorÂ’s res judicata argument is meritless because the district courtÂ’s previous denial of defendantsÂ’ motion to dismiss was not a final judgment. Cf. Uhl v. Swanstrom, 79 F.3d 751, 753-54 (8th Cir. 1996) (denial of motion to dismiss was not final judgment for collateral estoppel application). Finally, Kapoor had no right to cross-examine defendants during the hearing on the summary judgment motion. Cf. L.S.T., Inc. v. Crow, 49 F.3d 679, 684 n.9 (11th Cir. 1995) ("Nothing in Rule 56 requires a district court to conduct a hearing on a motion for summary judgment.").

Accordingly, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

[1] The Honorable Charles R. Wolle, Chief Judge, United States District Court for the Southern District of Iowa.