F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 28 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
NASRULLA KHAN,
Plaintiff-Appellant,
v. No. 01-4219
(D.C. No. 1:00-CV-114-B)
GLENN J. MECHAM; ROCKY J. (D. Utah)
FLUHART; JON GREINER;
A.K. GREENWOOD; OGDEN CITY
COUNCIL; OGDEN CITY
CORPORATION; RALPH W.
MITCHELL; GLEN V. HOLLEY;
KENNETH J. ALFORD; GARTH B.
DAY; RICK J. MAYER; JESSE M.
GARCIA; ADELE SMITH,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , PORFILIO , 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Plaintiff-appellant Nasrulla Khan appeals the dismissal of his 42 U.S.C.
§ 1983 action against the City of Ogden, Utah, certain City employees, and
members of the Ogden City Council for allegedly failing properly to investigate
and to prosecute Khan’s claims that he was the victim of harassing phone calls
and stalking. The harassing phone calls were limited to hang-ups, and the
evidence of stalking was based on Khan’s identification of the license plates of
cars parked around his apartment complex or traveling behind him on the street
and on Khan’s allegation that he was run off the street by an aggressive driver.
The district court dismissed this case by adopting the conclusion of the
magistrate judge’s report and recommendation that Khan’s claims against the
City, its key employees, and members of its Council were barred by res judicata
because Khan could have included the defendants as parties in previous litigation.
Khan filed for sanctions below and has done so again on appeal. Defendants-
appellees filed for sanctions in the district court, but have not done so on appeal.
We affirm the district court’s decision and deny Khan’s motion for sanctions as
frivolous. We also sua sponte bar Khan from filing an appeal again on the same
subject matter.
This case is Khan’s fifth separate appeal on exactly the same facts, but
against slightly different parties. In Khan v. Lucas, 33 Fed. Appx. 381 (10th Cir.
Feb. 6, 2002) (“Khan I”), cert. denied, 537 U.S. 977 (2002), we reviewed de novo
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the merits of Khan’s case against the City of Ogden and state prosecutors, and
we agreed that Khan had failed to state a cognizable claim under the Fourteenth
Amendment or in tort. Id. at 384. The parties to the instant case note that Khan
attempted to amend his complaint in Khan I to include the current
defendants-appellees, but that Khan’s motion to amend was denied in Khan I as
futile. Aplt. Br. at 21; Aple. Br. at 2. When we reviewed Khan’s appeal in
Khan I, we found that the district court had not abused its discretion in denying
Khan’s motion to amend his complaint. 33 Fed. Appx. at 385.
In Khan v. Thorley, 23 Fed. Appx. 978 (10th Cir. Dec. 21, 2001)
(“Khan II”), we upheld the dismissal of Khan’s similar case against federal
investigatory authorities on the ground of collateral estoppel. Id. at 980. 1 Khan
had argued, among other things, that collateral estoppel should not apply to bar
his claims against federal authorities in Khan II because those authorities had not
been parties to Khan I. Id. at 980. In affirming the dismissal of Khan II on the
ground of collateral estoppel, we noted that the two cases nonetheless used the
same record and relied upon the same allegations. Id.
1
The fact that the Tenth Circuit issued the Khan II opinion before the Khan I
opinion appears to have been a quirk of filing. Indeed, the Khan II opinion notes
in a footnote that the validity of its reasoning was not affected by the fact that the
appeal in Khan I was still pending. Khan II , 23 Fed. Appx. at 981 n.2.
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Khan also filed two earlier appeals that the Tenth Circuit dismissed for
procedural reasons. In re: Khan, No. 00-4187, was dismissed in March of 1991
for failure to pay the filing fee. In that case, Khan had served the district court in
Utah to compel action through petition for a writ of mandamus. A preliminary
version of Khan II (Khan v. Thorley, No. 01-4246) was dismissed in May of 2002
for failure to meet a filing deadline.
We now AFFIRM the dismissal of the case at bar for substantially the
reason stated by the magistrate judge and adopted by the district court. Because
Khan litigated the denial of his motion to amend his complaint to include the
current defendants-appellees in his appeal of Khan I , he is precluded from
litigating the same issue again. We DENY Khan’s motion for sanctions on appeal
as frivolous. Finally, we sua sponte bar Khan from filing additional appeals
regarding the same subject matter as in Khan I , Khan II , and the instant case, and
warn Khan that he will be subject to sanctions in the future should he file an
appeal in the Tenth Circuit regarding this subject matter. See generally
Christensen v. Ward , 916 F.2d 1462, 1469 (10th Cir. 1990) (noting that this court
has the power “to impose sanctions such as costs, attorneys fees and double costs
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for the filing of frivolous appeals, Fed. R. App. P. 38, and the inherent power to
impose sanctions that are necessary to regulate the docket, promote judicial
efficiency, and . . . to deter frivolous filings.”).
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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