*This order and judgment is not binding precedent, except under the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

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, 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.
1

In his original pleadings before the district court, appellant identified

himself as James Joseph Owens. In all of his appellate 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 complaint 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 § 1915(e).

After Owens-El filed the instant complaint, it was referred to a magistrate

judge for initial review pursuant to 28 U.S.C. § 636(b)(1)(B). After reviewing the

complaint, the magistrate judge concluded that it contained factual allegations

identical to those set forth in a previously-dismissed complaint also brought by

Owens-El. Because the United States was in privity with the defendants in the

previously-dismissed complaint, the magistrate judge 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 recommendation and dismissed

the complaint on the basis of res judicata.
-3-

Although Owens-El’s prolix appellate brief is certainly hard to follow, this

court has conducted a close review of the contentions contained therein. This

court has also undertaken an independent comparison of the previously-dismissed

complaint in civil case number 98-S-1854 and the instant complaint. That review

demonstrates that the factual bases of the two complaints are, indeed, identical

and that Owens-El has offered no cogent support for his 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 doctrine of res judicata and OwensEl’s failure to offer on appeal any legally justified basis for reversing the district

court’s order of dismissal, this court concludes that 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 strike pursuant to § 1915(g). 

Owens-El is reminded that if he accrues three strikes, 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