Khan v. Mecham, (10th Cir. 2003)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

NASRULLA KHAN,

Plaintiff-Appellant,

v.

GLENN J. MECHAM; ROCKY J.

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.

No. 01-4219

(D.C. No. 1:00-CV-114-B)

(D. Utah)

ORDER AND JUDGMENT
name="txt*">(*)

Before SEYMOUR, PORFILIO, and

O'BRIEN, Circuit Judges.

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 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.
href="#N_1_a" name="txt1a">(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.

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

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

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. 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.

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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