* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable Ted Stewart, District Judge, United S tates District Court, District of Utah, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 2 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILLIAM McNALLY, Plaintiff-Appellant,

v. COLORADO STATE PATROL; COLONEL LONNIE J. WESTPHAL; MAJOR GUY F. KING; CAPTAIN STEVE MYERS; TROOPER C.D. BLANSCET; TROOPER WILLIAM DREW HERRINGTON; TROOPER ROBERT KLADDE, all individually and in their professional capacities, Defendants-Appellees. No. 02-1428 (District of Colorado) (D.C. No. 01-B-1473 (MJW))

ORDER AND JUDGMENT *

Before BRISCOE , MURPHY , Circuit Judges, and STEWART , District Judge. **

I. INTRODUCTION-2-

William McNally filed this suit against the Colorad o State Patrol and six individual officers, alleging that his constitution al rights were violated when he was arrested, charged with several drug- and weapon s-related offenses, and convicted in state court. McNally’s complaint rais es the following claims: (1) malicious prosecution depriving him of his Fourth A mendment rights; (2) violation of his due process right to a fair trial; (3) false imprisonment subsequent to his conviction in violation of the Fourth Amendm ent; (4) failure of the Colorado State Patrol to adequately train and supervise its employees, resulting in a violation of his constitutional rights; and (5) t he state law torts of negligence and outrageous conduct. The district court granted summary judgment for the defendants on grounds of claim and issue preclusion , adopting the magistrate judge’s conclusion that McNally had previously liti gated identical claims against the same defendants and lost. McNally appeals. Th is court has jurisdiction under 28 U.S.C. § 1291 and affirms the district court’s grant of summary judgment.
II. BACKGROUND Trooper Robert Kladde of the Colorado State Patrol discovered marijuana and a gun in McNally’s possession after pulling himover on Interstate 25 and searching his car. McNally was charged with posses sion of drug paraphernalia, driving a vehicle without a valid driver’s license, refusing to give his driver’s license to a peace officer upon request, driving wh ile his license was under-3-

restraint, driving while impaired by the consumptio n of drugs, prohibited use of weapons, and possession of less than one ounce of m arijuana. After a jury trial, McNally was convicted on all co unts. The state appeals court reversed the driving-while-impaired charge be cause the prosecution had introduced expert testimony on McNally’s intoxicati on after stipulating that such evidence would not be introduced. On remand, McNal ly argued that his remaining convictions should also be reversed becau se he had not been informed that his trial counsel was practicing under the state student-practice act and was not a licensed attorney at the time of trial. The court granted McNally’s motion, and the prosecution advised the court that it would not seek retrial on any of the charges in light of the difficulty of obtaining the attendance of witnesses and the fact that McNally had already served seventeen days in jail. McNally then filed a 42 U.S.C. § 1983 suit in feder al district court (McNally I

), arguing, among other things, that Kladde lacked probable cause to stop and search the car, and that Kladde and other state troopers had lied under oath in pre-trial proceedings and at trial. The di strict court construed McNally’s arguments as claims alleging malicious prosecution, false imprisonment, and violation of his due process right to a fair trial. The court granted summary judgment to the defendants, in part, on the ground that these claims were-4-

premature under the Supreme Court’s decision in Heck v. Humphry , 512 U.S. 477 (1994).
In Heck, the Court held that a § 1983 plaintiff must prove that a conviction has been declared invalid by a state tribunal autho rized to make such a determination before recovering damages on a claim that the conviction was unconstitutional. 512 U.S. at 486-87. Although McNally submitted evidence to the court that his convictions had already been rev ersed by the state courts, the district court was not persuaded and concluded thathe had failed to demonstrate that six of his seven convictions had been overturn ed. On the driving-whileimpaired charge, the court agreed that the convicti on had been reversed on appeal but nevertheless granted summary judgment to the de fendants on grounds of issue preclusion. The court reasoned that McNally had li tigated and lost the issue of probable cause at his criminal trial and direct app eal, and therefore could not establish an essential element of his malicious pro secution claim. McNally appealed to this court, which remanded to t he district court with instructions to dismiss the malicious prosecution, due process, and postconviction false imprisonment claims without prejud ice. McNally v. Colorado State Patrol , 13 Fed. Appx. 806, 808 & n.1 (10th Cir. 2001) (unpublished). The court held that, under Heck, McNally should be free to refile his claims if he were to later succeed in getting his convictions reverse d. Id. McNally attempted to-5-

present more evidence of the status of his convicti ons, but the court declined to consider any new evidence offered for the first tim e on appeal. Id. at 808. McNally then filed the present suit in the districtcourt, raising a subset of his previous claims and alleging nearly identical f acts. The district court granted summary judgment to the defendants both on the meri ts and on grounds of claim and issue preclusion. On appeal, McNally admits th at his state-law tort claims are waived for failure to file the required notice of c laim. He also does not dispute the district court’s determination that the Elevent h Amendment bars his suit against the Colorado State Patrol and its officers in their official capacities. His remaining claims are therefore: (1) claims againstthe individual defendants for malicious prosecution, denial of due process, and p ost-conviction false imprisonment; and (2) claims against individual Col orado State Patrol supervisors for failure to adequately train and supervise.
III. DISCUSSION This court reviews orders granting summary judgment de novo

. Sigmon v. CommunityCare HMO, Inc. , 234 F.3d 1121, 1124 (10th Cir. 2000). Summary judgment is appropriate “if the pleadings, depositi ons, answers to interrogatories, and admissions on file, together with the affidavit s, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c ).-6-

The defendants urge the court to affirm the order o f the district court on grounds of claim and issue preclusion, arguing thatMcNally has already litigated and lost all his current claims in McNally I. Claim preclusion applies if three elements exist: (1) a judgment on the merits in an earlier action, (2) identity of parties in both suits, and (3) identity of the caus e of action in both suits. King v. Union Oil Co. of Cal. , 117 F.3d 443, 445 (10th Cir. 1997). Because McNa lly’s claims against these defendants relating to his dri ving-while-impaired conviction were reduced to a final judgment in McNally I and affirmed on appeal, they are barred by claim-preclusion doctrine from relitigati on here. McNally’s claims relating to his other six convicti ons, however, were dismissed without prejudice following remand in McNally I for failure to demonstrate reversal of the convictions as required by Heck . Generally, a dismissal without prejudice does not operate as a f inal adjudication on the merits and has no claim-preclusive effect on a later suit. Santana v. City of Tulsa , 359 F.3d 1241, 1246 n.3 (10th Cir. 2004). Claim-preclu sion doctrine therefore does not bar McNally’s claims to the extent they are bas ed on the defendants’ allegedly wrongful conduct with regard to the other six convi ctions. In contrast to claim preclusion, issue preclusion b ars relitigation of matters actually litigated and adjudged, even if there is n o final judgment on the merits. See Park Lake Res. Ltd. Liability Co. v. U.S. Dept. of Agric. , 378 F.3d 1132, 1136-7-

(10th Cir. 2004); In re Kauffman Mut. Fund Actions , 479 F.2d 257, 267 (1st Cir. 1973) (holding that dismissal without prejudice sti ll bars relitigation of the “very question which was litigated in the prior action” ( quotation omitted)). An issue is barred from relitigation by issue preclusion when the issue was actually and necessarily decided in a prior case and the party a gainst whom issue preclusion is invoked has had a full and fair opportunity to liti gate the issue to be precluded. Willner v. Budig , 848 F.2d 1032, 1034 (10th Cir. 1988). In examining McNally’s claim of malicious prosecuti on in the context of his driving-while-impaired conviction, the McNally I court held that he would have to demonstrate that the defendants lacked prob able cause to arrest and prosecute him. The court further held that McNally was estopped from arguing a lack of probable cause because he had already raise d and lost the issue in his state-court suppression hearing. The district court’s disposition of McNally’s malicious prosecution claim in the context of his d riving-while-impaired conviction, which he has already litigated and lost , is equally applicable to the claim in the context of all his other criminal conv ictions. McNally’s malicious prosecution claim is therefore barred by issue prec lusion because he cannot relitigate the issue of probable cause. McNally’s second claim alleges that the defendants lied under oath, resulting in a denial of his due process right to afair trial. In the context of the-8-

driving-while-impaired conviction, the McNally I court treated McNally’s allegation of pre-trial perjury as an aspect of his malicious prosecution claim and rejected it for the same reason. To the extent that this claim instead related to perjured testimony at trial, the court concluded th at the defendants’ testimony was entitled to absolute immunity. McNally is estopped from rearguing these issues here for the reasons set out above. The McNally I

court did not resolve McNally’s claim of post-conv iction false imprisonment because McNally had not alleged that his conviction resulted in a term of imprisonment. This claim, however, is merely a variant of his malicious prosecution claim and is thus similarly b arred. Both claims rely on identical allegations for support and essentially a rgue that McNally was falsely imprisoned as a result of the wrongful prosecution against him. In similar circumstances, the Supreme Court in Heck held that a claim for post-conviction confinement was most analogous to a claim for malic ious prosecution, because the torts of false arrest and false imprisonment pe rmit damages only for “the time of detention up until issuance of process or arraig nment, but not more.” Heck, 512 U.S. at 484 (quotation omitted). A malicious-p rosecution suit, in contrast, “permits damages for confinement imposed pursuant t o legal process.” Id

. McNally’s false imprisonment claim is therefore rea lly just another aspect of his-9-

rejected malicious prosecution claim, and issue pre clusion bars its relitigation here for those reasons set out above. Because McNally has not established any constitutio nal violations by the defendants, his claim against the Colorado State Patrol supervisors for failure to adequately train and supervise must also fail. McN ally concedes that his respondeat superior claim depends on a finding of a n underlying constitutional violation. He has failed to show such a violation, and the supervisors are therefore not liable. McNally argues that because his criminal conviction s were overturned in state court for ineffective assistance of counsel, the state courts’ determination of probable cause cannot serve as a bar to further lit igation in his civil case. He reasons that when a court’s decision is based on do ctrines of claim or issue preclusion, and the underlying case is thereafter r eversed, the court’s decision must also be reversed because its premise is no lon ger valid. McNally, however, relies on Timberlake v. Southern Pacific Co. , in which the overturned judgment was based on claim preclusion, not issue preclusion . 420 F.2d 482, 483 (10th Cir. 1970) (per curiam). As already explained, issue pr eclusion applies even in the absence of a final judgment. Park Lake , 378 F.3d at 1136. Because McNally’s criminal convictions were reversed for reasons unre lated to the merits of the probable cause determination, issue-preclusion doctrine is still applicable.-10-

McNally makes the weightier argument that the rever sal of his convictions for ineffective assistance of counsel demonstrates that he never received a “full and fair opportunity” to litigate the issue of prob able cause. Willner , 848 F.2d at 1034. This court need not examine the merits of th is claim, however, because the McNally I

court’s determination that the probable cause issu e was barred by issue preclusion is in itself a final, preclusive determi nation. McNally knew at the time of McNally I

that his criminal convictions had been overturned and attempted to present evidence of this fact to the district court . McNally was given a full and fair opportunity to litigate the issue in the conte xt of the defendants’ motion for summary judgment. See Matosantos Commercial Corp. v. Applebee’s Int’l, In c. , 245 F.3d 1203, 1211 (10th Cir. 2001) (“[A] plaintif f has a full and fair opportunity to litigate if it is allowed to submit evidence to defeat a motion for summary judgment.”). The court was nevertheless unpersuaded, concluding that McNally had failed to demonstrated that six of his seven convictions had been reversed. McNally cannot defeat the issue-preclusi ve effect of the McNally I court’s determination of the status of his convicti ons merely by alleging facts in a new proceeding that were available during the initi al litigation but that he failed to present at that time. Park Lake , 378 F.3d at 1137-38; Magnus Elec., Inc. v. Republica Argentina , 830 F.2d 1396, 1400-01 (7th Cir. 1987).-11-

McNally’s proper remedy after losing on summary jud gment in McNally I was a motion to reopen the judgment with a Rule 59 or 60 motion in the district court, not the filing of a new action. See Magnus Elec., Inc. , 830 F.2d at 1402. Even “[a]n erroneous judgment fairly and regularly entered by a court of competent jurisdiction is nevertheless an effective bar under the doctrine of res judicata to a subsequent action between the same pa rties on the same cause of action.” Murphy v. Klein Tools, Inc. , 935 F.2d 1127, 1129 (10th Cir. 1991) (quotation omitted). That McNally was unrepresente d by counsel in his first suit does not change this result. An unrepresented liti gant “cannot generally be permitted to . . . avoid the risks of failure that attend his decision to forgo expert assistance.” Dozier v. Ford Motor Co. , 702 F.2d 1189, 1194 (D.C. Cir. 1983). McNally also argues that the issue-preclusive effec t of McNally I should be relieved because the defendants committed a fraud o n the court in that case. He claims that, by not informing the McNally I court that his convictions had been reversed for ineffective assistance of counsel, the defendants fraudulently allowed the court to rely on those overturned convictions i n ruling on the malicious prosecution claim. To prevail on the issue of frau d, McNally must demonstrate by clear and convincing evidence that the defendant s deliberately defrauded the court, and all doubts must be resolved in favor of the finality of the judgment. Weese v. Schukman , 98 F.3d 542, 552-53 (10th Cir. 1996).-12-

McNally did not raise his fraud claim below, and th is court will not consider a new theory on appeal. Bancamerica Commercial Corp. v. Mosher Steel of Kan., Inc. , 100 F.3d 792, 798-99 (10th Cir. 1996), amended on other grounds by103 F.3d 80 (10th Cir.1996). Despite this general rule, McNally asks the court to invoke its inherent authority to disre gard a fraudulently obtained judgment, citing United States v. Buck, 281 F.3d 1336, 1341 (10th Cir. 2002). Buck makes clear, however, that McNally’s allegations w ould not rise to the level of a fraud on the court even if they were true. Th e Buck court wrote: Generally speaking, only the most egregious miscond uct, such as bribery of a judge or members of a jury, or the fab rication of evidence by a party in which an attorney is implicated will constitute a fraud on the court. Less egregious misconduct, such as nondisclosure to the court of facts allegedly perti nent to the matter before it , will not ordinarily rise to the level of fraud on the court. Buck, 281 F.3d at 1342 (quotation omitted) (emphasis ad ded). McNally cites dicta in Robinson v. Volkswagenwerk AGfor the proposition that the preclusive effect of a prior j udgment should nevertheless be relieved if one party concealed mat erial information from the court. 56 F.3d 1268, 1274 n.5 (10th Cir. 1995) . The Robinson court relied for this proposition on the Restatement (Sec ond) of Judgments. Id. (citing Restatement (Second) of Judgments § 28 cmt. j (1982)). That section of the Restatement also explains, however, that “[s]uch a refusal to give the first judgment preclusive effect should no t occur without a-13-

compelling showing of unfairness, nor should it be based simply on a conclusion that the first determination was patentl y erroneous.” Restatement (Second) of Judgments § 28 cmt. j. McNally has not made this showing of unfairness. H is allegations amount merely to a claim that the defendants “had r eason to know” the status of his criminal convictions and that it was “reckless of the State to continue its reliance on the assumption Mr. McNally ’s convictions remained intact.” This allegation does not rise to the level of deliberate conduct required for a showing of fraud. See Weese , 98 F.3d at 553. Furthermore, McNally himself had access to proof th at his convictions had been overturned and attempted to present this evide nce to the court. Under these circumstances, fairness does not demand relie ving the preclusive effect of the prior judgment. Accordingly, this co urt holds that McNally’s suit is barred by claim and issue preclusion.-14-

IV. CONCLUSION For the foregoing reasons, this court affirms the district court’s grant of summary judgment for the defendants. McNally’s motion for leave to proceed in forma pauperis is granted

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge