Griffin v. Gash

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 19, 2009
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
CHARLIE JAMES GRIFFIN, JR.,
Plaintiff-Appellant, No. 08-1301
v. (D.C. No. 07-cv-00177-MSK-MJW)
OFFICER GASH, (D. Colo.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
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). The case is therefore ordered
submitted without oral argument.
In 2007, Plaintiff filed the instant complaint in the District of Colorado
alleging that Defendant assaulted him in January 2003. The district court
concluded that Plaintiff was barred from asserting this claim, which had
previously been dismissed with prejudice by the same court. Specifically,
*
This order and judgment is not binding precedent, except under the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.
Plaintiff filed a complaint against Defendant in 2004 in the District of Colorado
alleging the same operative facts and making the same claim, and that complaint
was dismissed with prejudice fourteen months later based on Plaintiff’s failure to
comply with the court’s order regarding monthly filing fee payments.
As the district court noted, a dismissal with prejudice bars the refiling of
the same claim in the same court by the same plaintiff. See Semtek Int’l Inc. v.
Lockheed Martin Corp., 531 U.S. 497, 505-06 (2001). We thus see no error in the
court’s decision to dismiss the instant complaint.
Plaintiff argues that the district court erred by failing to appoint him an
attorney, and he requests that this court appoint counsel to represent him on
appeal. We hold that the district court did not abuse its discretion in denying the
request for appointment of counsel. We likewise decline to appoint counsel to
represent Plaintiff on appeal.
Plaintiff contends that the court erred by failing to inform him that he
should respond to Defendant’s summary judgment motion. However, the record
reflects that Plaintiff in fact filed a timely response to the motion and that the
district court considered this response in its order dismissing the case. Thus,
whether notice came from the district court or not, Plaintiff clearly received both
notice and an opportunity to respond to the summary judgment motion.
Plaintiff contends that the district court erred by failing to consider a
number of factors, such as his long-term mental illness. Plaintiff failed to raise
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these issues at any time during the proceedings in the district court, and we
therefore do not consider them on appeal. See Treff v. Galetka, 74 F.3d 191, 193
(10th Cir. 1996).
We GRANT Plaintiff’s motion to proceed in forma pauperis on appeal and
remind him of his continuing obligation to make partial payments until his filing
fee has been paid in full. We AFFIRM the district court, and all other pending
motions are DENIED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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