* This order and judgment is not binding precedent, e xcept under the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

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

### MAR 29 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES JOSEPH OWENS, Petitioner-Appellant,

v. UNITED STATES OF AMERICA, Respondent-Appellee. No. 00-1496 (District of Colorado) (D.C. No. 99-S-794)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE, and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 In his original pleadings before the district court , appellant identified

himself as James Joseph Owens. In all of his appel late filings, he refers to himself as James Joseph Owens-El. In deference to the appellant, this court will refer to him as Owens-El throughout this opinion. -2- James Joseph Owens-El, 1 a prisoner proceeding pro se , appeals the district court’s dismissal of his Federal Tort Claims Act (“ FTCA”) complaint on the ground that the FTCA claims set forth in the compla int are barred by res judicata

. Owens-El also seeks permission to proceed on appeal in forma pauperis . This court exercises jurisdiction pursuant to 28 U.S.C. 1291, grants Owens-El permission to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and dismisses the appeal as frivolous pursuant to § 191 5(e). After Owens-El filed the instant complaint, it was referred to a magistrate judge for initial review pursuant to 28 U.S.C. § 63 6(b)(1)(B). After reviewing the complaint, the magistrate judge concluded that it c ontained factual allegations identical to those set forth in a previously-dismis sed complaint also brought by Owens-El. Because the United States was in privitywith the defendants in the previously-dismissed complaint, the magistrate judg e recommended that all of the claims in the instant complaint be dismissed on the ground that they were barred by the doctrine of res judicata . After conducting a de novo review, the district court adopted the magistrate judge’s report and rec ommendation and dismissed the complaint on the basis of res judicata

.-3-

Although Owens-El’s prolix appellate brief is certa inly hard to follow, this court has conducted a close review of the contentio ns contained therein. This court has also undertaken an independent comparisonof the previously-dismissed complaint in civil case number 98-S-1854 and the in stant complaint. That review demonstrates that the factual bases of the two comp laints are, indeed, identical and that Owens-El has offered no cogent support forhis bare assertion that the subject matter of the two complaints is different. In light of magistrate judge’s patient explanation of the applicability of the doc trine of res judicata and OwensEl’s failure to offer on appeal any legally justifi ed basis for reversing the district court’s order of dismissal, this court concludes th at this appeal is frivolous. See 28 U.S.C. § 1915(e)(2). Accordingly, the appeal is hereby DISMISSED

. See id. This court’s dismissal as frivolous counts as a str ike pursuant to § 1915(g). Owens-El is reminded that if he accrues three strik es, he will no longer be allowed to bring a civil action in forma pauperis unless he is under “imminent danger of serious physical injury.” Id. Owens-El is further reminded that he remains obligated to make partial payments of the appellate filing fee pursuant to § 1915(b) despite the dismissal of this appeal. ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge