F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 29 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
JAMES JOSEPH OWENS,
Petitioner-Appellant,
No. 00-1496
v. (District of Colorado)
(D.C. No. 99-S-794)
UNITED STATES OF AMERICA,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before HENRY, BRISCOE, and MURPHY, 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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 of 10th Cir. R. 36.3.
James Joseph Owens-El, 1 a prisoner proceeding pro se, appeals the district
court’s dismissal of his Federal Tort Claims Act (“FTCA”) complaint on the
ground that the FTCA claims set forth in the complaint are barred by res judicata.
Owens-El also seeks permission to proceed on appeal in forma pauperis. This
court exercises jurisdiction pursuant to 28 U.S.C. 1291, grants Owens-El
permission to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and
dismisses the appeal as frivolous pursuant to § 1915(e).
After Owens-El filed the instant complaint, it was referred to a magistrate
judge for initial review pursuant to 28 U.S.C. § 636(b)(1)(B). After reviewing the
complaint, the magistrate judge concluded that it contained factual allegations
identical to those set forth in a previously-dismissed complaint also brought by
Owens-El. Because the United States was in privity with the defendants in the
previously-dismissed complaint, the magistrate judge recommended that all of the
claims in the instant complaint be dismissed on the ground that they were barred
by the doctrine of res judicata. After conducting a de novo review, the district
court adopted the magistrate judge’s report and recommendation and dismissed
the complaint on the basis of res judicata.
1
In his original pleadings before the district court, appellant identified
himself as James Joseph Owens. In all of his appellate filings, he refers to
himself as James Joseph Owens-El. In deference to the appellant, this court will
refer to him as Owens-El throughout this opinion.
-2-
Although Owens-El’s prolix appellate brief is certainly hard to follow, this
court has conducted a close review of the contentions contained therein. This
court has also undertaken an independent comparison of the previously-dismissed
complaint in civil case number 98-S-1854 and the instant complaint. That review
demonstrates that the factual bases of the two complaints are, indeed, identical
and that Owens-El has offered no cogent support for his bare assertion that the
subject matter of the two complaints is different. In light of magistrate judge’s
patient explanation of the applicability of the doctrine of res judicata and Owens-
El’s failure to offer on appeal any legally justified basis for reversing the district
court’s order of dismissal, this court concludes that this appeal is frivolous. See
28 U.S.C. § 1915(e)(2). Accordingly, the appeal is hereby DISMISSED. See id.
This court’s dismissal as frivolous counts as a strike pursuant to § 1915(g).
Owens-El is reminded that if he accrues three strikes, he will no longer be
allowed to bring a civil action in forma pauperis unless he is under “imminent
danger of serious physical injury.” Id. Owens-El is further reminded that he
remains obligated to make partial payments of the appellate filing fee pursuant to
§ 1915(b) despite the dismissal of this appeal.
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
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