Namoko v. Cognisa Security, Inc.

FILED
United States Court of Appeals
Tenth Circuit
February 12, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ISSIAKA I. NAMOKO,
Plaintiff-Appellant,
v. No. 07-1360
COGNISA SECURITY, INC., (D.C. No. 05-cv-0763-WDM-MEH)
(D. Colorado)
Defendant-Appellee.
ORDER AND JUDGMENT*
Before BRISCOE, EBEL, and McCONNELL, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,
submitted without oral argument.
Issiaka Namoko appeals pro se from the district court’s order dismissing his
complaint and compelling enforcement of a settlement agreement in his dispute with his
*
This order and judgment is not binding precedent, except under the doctrines of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.
former employer, Cognisa Security. Mr. Namoko also seeks to proceed in forma
pauperis (IFP). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.
This case has a complicated procedural history and we provide only a brief
summary of its background. Mr. Namoko is originally from Mali in West Africa and
worked for Cognisa as a security guard beginning in August 2004. He was terminated
from his job in November 2004, which led to his filing of this employment discrimination
lawsuit. While he filed his complaint pro se, Mr. Namoko was later represented by
counsel from the law firm of Cornish and Dell’Olio who subsequently, on Mr. Namoko’s
behalf, entered into a settlement agreement with Cognisa in April 2006. After signing the
agreement, however, Mr. Namoko apparently decided that he no longer wanted to settle
his complaint and refused to dismiss the case, claiming that he signed the agreement
under duress from his attorneys.
Cognisa moved to enforce the settlement agreement and, following an evidentiary
hearing before a federal magistrate judge as to Mr. Namoko’s claim of duress, the
magistrate judge recommended to the district court that Cognisa’s motion be granted.
The district court adopted the recommendation of the magistrate judge on February 20,
2007 and included in its order that the case would be dismissed after Mr. Namoko filed
proof of tender of the settlement amount. Cognisa promptly sent a letter to Mr. Namoko
offering to provide the settlement check once he signed an agreement to dismiss the case,
but Mr. Namoko responded by notifying Cognisa that he would not sign the agreement.
Cognisa then moved to dismiss Mr. Namoko’s complaint and Mr. Namoko appealed the
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district court’s decision to this court. We dismissed the appeal for lack of jurisdiction
because there was no final appealable order from the district court. Namoko v. Cognisa
Sec., Inc., No. 07-1296 (10th Cir. Aug. 6, 2007) (order dismissing case for lack of
jurisdiction).
Following the dismissal of his first appeal, the district court amended its judgment
on June 28, 2007, and directed Cognisa to pay its settlement funds to the Clerk of the
Court, indicating that Mr. Namoko’s case would be dismissed with prejudice upon proof
of payment to the district court. Cognisa complied and the district court dismissed the
case on July 31, 2007. Mr. Namoko filed a “Motion for Reconsideration” in this court,
which we labeled a “misdirected notice of appeal” and directed the district court to file.
The present appeal was then docketed for review by this court.
This court reviews the district court’s grant of Cognisa’s motion to enforce the
settlement agreement for abuse of discretion. Shoels v. Klebold, 375 F.3d 1054, 1060
(10th Cir. 2004). “A district court abuses its discretion when it commits an error of law
or makes clearly erroneous factual findings.” Wyandotte Nation v. Sebelius, 443 F.3d
1247, 1252 (10th Cir. 2006). While we construe the filings of a pro se plaintiff liberally,
this court “will not supply additional factual allegations to round out a plaintiff’s
complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico,
113 F.3d 1170, 1173-74 (10th Cir. 1997).
Mr. Namoko’s appeal is meritless. His arguments do not address the substance of
the district court’s decision and fail to explain how the district court abused its discretion.
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In his appeal Mr. Namoko contends that his former attorneys violated his civil rights
under 28 U.S.C. § 1343 (a statute which grants original jurisdiction to the district courts
in civil rights cases); and, that his attorneys violated the Colorado Rules of Professional
Conduct. First, these arguments were not expressly raised before the district court and
may not be considered by this court for the first time on appeal. Hokansen v. United
States, 868 F.2d 372, 378 (10th Cir. 1989). Second, to the extent his claim before the
district court that he signed the settlement agreement under duress from his attorneys
could be construed as raising either of these issues, neither claim involves the only named
defendant in this action, Cognisa. These claims concerning the actions of his prior
attorneys are matters between Mr. Namoko and his prior counsel and are wholly
irrelevant to the enforceability of the settlement agreement.
We AFFIRM the district court’s dismissal of this case. Appellant’s motion to
proceed IFP is denied.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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