F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 25 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL GIRON,
Plaintiff - Appellant,
v.
GARY E. JOHNSON, Governor of
New Mexico; DEPARTMENT OF
CORRECTIONS, NEW MEXICO;
ROBERT J. PERRY, Secretary of
Corrections; JOHN SHANKS, Director
of Adult Prisons; ELMER BUSTOS,
DOC, Classification Director; JEFF
SERNA, Interstate Compact No. 02-2063
Coordinator; JERRY TAFOYA, (D.C. No. CIV-01-700 M/RLP)
Deputy Corrections Secretary, (D. New Mexico)
Defendants - Appellees,
and
VIRGINIA DEPARTMENT OF
CORRECTIONS; RONALD
ANGELONE, Virginia Corrections
Director; STANLEY K. YOUNG,
Wallens Ridge State Prison Warden;
C O COCHRANE, WRSP,
Correctional Officer;
C O NECESSARY, WRSP,
Correctional Officer; JOHN DOES
#1-3, Virginia Corrections Officers,
Defendants.
ORDER AND JUDGMENT *
Before KELLY , McKAY , and O’BRIEN , 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.
Plaintiff Michael Giron appeals the district court’s dismissal of his civil
rights complaint filed pursuant to 42 U.S.C. § 1983. Mr. Giron, a former New
Mexico state prisoner, sought damages on several claims stemming from his
transfer to a maximum security prison facility in Virginia. Mr. Giron failed to
serve defendants Virginia Department of Corrections, Angelone, Young,
Cochrane, Necessary, and three unknown Virginia corrections officers and those
defendants were subsequently dismissed. The remaining defendants filed an
answer, followed by five motions to dismiss Mr. Giron’s actions for failure to
state a claim under Fed. R. Civ. P. 12(b)(6). Mr. Giron, who was represented by
*
This order and judgment is not binding precedent, except under the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.
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counsel, failed to respond to the motions and the district court subsequently
dismissed Mr. Giron’s complaint with prejudice. After the court entered
judgment against him, Mr. Giron filed neither a motion to alter or amend the
judgment pursuant to Fed. Rule Civ. P. 59, nor a motion for relief from the
judgment pursuant to Fed. R. Civ. P. 60. Instead, Mr. Giron appealed directly to
this court. We review dismissals pursuant to Fed. R. Civ. P. 12(b)(6) de novo.
Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1149
(10th Cir. 2001).
For the first time on appeal, Mr. Giron raises several issues alleging
procedural irregularities in the filing and disposition of the motions to dismiss.
“Generally, an appellate court will not consider an issue raised for the first time
on appeal.” Tele-Communications, Inc. v. Comm’r, 104 F.3d 1229, 1232
(10th Cir. 1997). While we have recognized exceptions to this general rule,
those exceptions
are rare and generally limited to cases where the jurisdiction of a
court to hear a case is questioned, sovereign immunity is raised, or
when the appellate court feels it must resolve a question of law to
prevent a miscarriage of justice. The failure to raise the issue with
the trial court precludes review except for the most manifest error.
Hicks v. Gates Rubber Co., 928 F.2d 966, 970 (10th Cir. 1991) (citations
omitted); see also Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir.
1993) (stating that this court “hear[s] issues for the first time on appeal only in
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the most unusual circumstances”). “The policies behind the general rule and its
narrow exceptions include respect for the [district] court, unfair surprise to the
other party, and the need for finality in litigation and conservation of judicial
resources.” Tele-Communications, Inc. v. Comm’r, 12 F.3d 1005, 1007 (10th Cir.
1993) (quotation omitted). The decision to take up questions for the first time on
appeal is left primarily to this court’s discretion, based on the facts of individual
cases. Singleton v. Wulff, 428 U.S. 106, 121 (1976).
In the present case, Mr. Giron did not respond to defendants’ motions to
dismiss. Moreover, after the district court entered judgment against him,
Mr. Giron did not file any post-judgment motion to alert that court to his
allegations of error. Finally, in his brief on appeal Mr. Giron does not address the
appellate waiver issue and offers no reason why we should grant an exception to
the general rule in this case. After independently reviewing the record, as well as
the merits of the issues Mr. Giron seeks to raise on appeal, we see no basis for
such an exception and we exercise our discretion to decline consideration of those
allegations that should have been raised initially in the district court.
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The judgment of the United States District Court for the District of
New Mexico is AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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