FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 24, 2007
Elisabeth A. Shumaker
FO R TH E TENTH CIRCUIT Clerk of Court
LILLIA N BA RTO N ,
Plaintiff-Appellant,
v. No. 06-1536
(D.C. Nos. 03-cv-2633-PSF-PAC &
CITY AND COU NTY OF DENVER; 04-cv-319-PSF-PAC)
R. BLEA, Officer, Badge No. 99006; (D . Colo.)
N. SA GAN, Officer, Badge No.
96-021; JOSH VASCO NCELLO S,
Defendants-Appellees,
and
JO HN HICKENLOOPER, M ayor, in
his official capacity; WE LLIN GTON
W EBB, as former M ayor, in his
official capacity; GERALD R.
W HITM AN, Chief of Police, City and
County of Denver, in his official
capacity only; J. W ALLACE
W ORTHAM , JR., former Denver City
Attorney, in his official capacity only;
CHRIS RAM SEY, former Denver
Deputy City Attorney, in his official
capacity only; RU DY SANDO VA L,
Defendants.
OR D ER AND JUDGM ENT *
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
(continued...)
Before HA RTZ, Circuit Judge, BROR BY, Senior Circuit Judge and
T YM K O VIC H, Circuit Judge.
Lillian Barton was arrested by Denver, Colorado, police officers Richard
Blea, Nicholas Sagan, and Joshua Vasconcellos (the “officers”) for interfering
with police authority. W hen the charge was later dismissed by the state court, she
initiated this action under 42 U.S.C. § 1983 against the officers, the City and
County of Denver (the “City”), and several city officials. A number of her claims
were dismissed on summary judgment, and a jury returned a verdict in favor of
the officers on those that remained. M s. Barton appeals pro se. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
W e paraphrase M s. Barton’s seven appellate contentions as follows: (1) the
defendants were bound by claim and issue preclusion from litigating whether they
had probable cause to arrest her because the criminal charge had been dismissed
for lack of probable cause; (2) the Double Jeopardy Clause barred relitigation of
the issues resolved in her criminal case; (3) she was denied due process when her
*
(...continued)
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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trial lawyer refused to question a witness’s identity; (4) the district court erred in
allowing her to be cross-examined with her uncorrected deposition testimony; (5)
the district court deviated from its proper procedure in considering the magistrate
judge’s report and recommendation; (6) the district court abused its discretion by
forcing her to show cause why she should not be sanctioned for filing excessive
pro se motions; and (7) the district court exceeded its jurisdiction by relitigating
the earlier criminal case.
II.
M s. Barton’s first, second, and seventh contentions all claim, in essence,
that the federal court was bound by the state court’s decision dismissing the
criminal charge against her. All these contentions fail. Claim and issue
preclusion are not available to M s. Barton “because there is no privity between
the prosecution in the criminal case and the officer” sued under § 1983. Novitsky
v. City of Aurora, 491 F.3d 1244, 1252 n.2 (10th Cir. 2007) (applying Colorado
law); M organ v. Gertz, 166 F.3d 1307, 1309 (10th Cir. 1999) (same); see also
M cFarland v. Childers, 212 F.3d 1178, 1185-86 (10th Cir. 2000) (applying
Oklahoma law ); Kinslow v. Ratzlaff, 158 F.3d 1104, 1106-07 (10th Cir. 1998)
(same). The D ouble Jeopardy Clause contention lacks merit because the Clause
protects only against a second criminal prosecution, not a civil proceeding. See
Hudson v. United States, 522 U.S. 93, 99 (1997). And we can conceive of no
support for M s. Barton’s seventh contention, that the federal court exceeded its
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jurisdiction. M s. Barton argues that the state-court decision controls this case
through the doctrine of stare decisis. But the stare decisis effect of a state-court
decision interpreting federal law is limited to the courts of that state; that doctrine
cannot bind a federal court to follow a state court’s interpretation of federal law,
which is the issue in a § 1983 proceeding, see M artin v. Duffie, 463 F.2d 464,
467-68 (10th Cir. 1972).
As for M s. Barton’s third contention, that her lawyer’s errors violated her
rights “to a fair trial and to confront witnesses under the Sixth Amendment,” A plt.
Br. at 36, she is “confus[ing] this civil case with a Sixth Amendment based claim
for the re-trial of a criminal case.” M acCuish v. United States, 844 F.2d 733, 735
(10th Cir. 1988) (internal quotation marks omitted). “The protections provided by
the Sixth Amendment are explicitly confined to ‘criminal prosecutions.’” Austin
v. United States, 509 U.S. 602, 608 (1993).
M s. Barton’s fourth contention is that the district court should not have
allowed her to be impeached with her uncorrected deposition testimony. But it is
impossible for us to determine whether any error occurred, or whether an error
was prejudicial, because her briefs do not point to specific testimony that was
improperly affected by use of an uncorrected deposition. W e therefore cannot
grant relief based on this contention. See Marino v. Otis Eng’g Corp., 839 F.2d
1404, 1410-11 (10th Cir. 1988) (refusing to grant relief in the absence of clear
prejudicial error).
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Next, M s. Barton contends that the district court deviated from its proper
procedure in granting partial summary judgment for the defendants. Although it
is difficult to discern her precise contention, she seems to attack the magistrate
judge’s authority to issue a report and recommendation on the defendants’ motion
for partial summary judgment, as well as the district judge’s authority to adopt or
reject it.
This contention is meritless. Under 28 U.S.C. § 636(b)(1)(B), a magistrate
judge is authorized to recommend to a district judge a proposed disposition on a
motion for summary judgment. “W ithin ten days after being served with a copy,
any party may serve and file written objections to such proposed findings and
recommendations.” Id., § 636(b)(1). Then, the district judge, after reviewing
de novo those portions of the magistrate judge’s report and recommendation to
which objection has been made, is free to “accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge.” Id.
Here, the district judge referred the defendants’ motion for partial summary
judgment to the magistrate judge for her recommendation on a proposed
disposition. The magistrate judge issued a report, recommending that the motion
be granted in substantial part and denied in part. M s. Barton filed objections to
this recommendation, and the district judge considered but overruled those
objections. After conducting a de novo review, the district judge concluded that
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the magistrate judge’s report ought to be adopted in part and rejected in part. The
magistrate and district judges operated in accord with their statutory authority.
Finally, M s. Barton contends that the district court abused its discretion in
striking a pro se pleading filed by her after counsel had entered an appearance on
her behalf and ordering her to show cause why her case should not be dismissed
as a sanction for filing excessive pro se motions while represented by counsel.
But she has failed to point to any prejudice that she suffered as a result of this
order. (The court did not dismiss her case as a sanction.) Therefore, we need not
address the propriety of the court’s order. See United States v. Garot, 801 F.2d
1241, 1250 (10th Cir. 1986).
The judgment of the district court is AFFIRMED.
Entered for the Court
Harris L Hartz
Circuit Judge
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