FILED

United States Court of Appeals

Tenth Circuit

December 23, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALLEN RUSSELL,

Plaintiff - Appellant,

v.

FINANCIAL CAPITAL

COMPANIES; FINANCIAL

CAPITAL MORTGAGE, INC., liable

officers, owners, employees thereof,

including Mr. Jack Silver, Mr. Thomas

Lutes; THE LAW FIRM OF

ROTHGERBER, JOHNSON &

LYONS, LLP, liable officers, owners

and employees thereof, including, Mr.

Ben M. Ochoa, Ms. Jaclyn K. Casey,

Mr. Stephen T. Johnson; GUARANTY

BANK AND TRUST COMPANY,

liable officers, owners, employees

thereof, including, Mr. Zsolt K.

Bessko, Mrs. Kathleen J. Busby;

DENVER PUBLIC TRUSTEE, liable

officers, owners, employees thereof,

including Mrs. Stephanie Y. O’Malley;

HALAX-WOOD, LLC, liable officers,

owners, employees thereof, including

Mr. Billy Halax, Mr. Mark Spoone;

SAMUELSON INVESTMENTS, LLC.

liable officers, owners, employees

thereof; THOMAS LUTES,

individually; FINANCIAL CAPITAL

COMPANIES, liable officers, owners,

employees thereof; THE STATE OF

COLORADO, liable officers, owners

and employees thereof, including,

Chief Judge Larry Naves, Hon. Judge

R. Michael Mullins, Magistrate Jeffry

No. 11-1243

(D.C. No. 1:08-CV-01182-ZLW)

(D. Colo.)
English, Magistrate Diane Johnson

Dupree,

Defendants - Appellees.

ORDER AND JUDGMENT*

Before KELLY, HARTZ, and HOLMES, Circuit Judges.**

Plaintiff-Appellant Allen Russell appeals from the district court’s order

denying “Plaintiff’s Motion to Vacate the Judgment Pursuant to Rule 60(b)(4)(6)

(FRCP), and Motion for Appointment of Counsel Pursuant to 28 U.S.C.

§ 1915(d), and, or, Alternatively, Second Motion for Leave to Amend the

Complaint.” We denied him leave to proceed on appeal in forma pauperis (IFP)

because we agreed with the district court that he does not raise a reasoned,

nonfrivolous argument on the law and facts in support of the issues he raises on

appeal. We ordered that he pay the filing fees within twenty days or the appeal

would be dismissed. Mr. Russell paid the filing fee.

*

 This order and judgment is not binding precedent, except under the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

** After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

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On June 5, 2008, Mr. Russell filed his pro se civil rights complaint in this

action, asserting claims against a plethora of business, attorney, and judicial

defendants arising out of the foreclosure of real property in Denver, Colorado. 

Russell v. Fin. Capital Cos., No. 08-cv-01182-BNB, 2008 WL 4533903, ECF No.

3 (D. Colo. Oct. 6, 2008). He later filed an amended complaint. The district

court dismissed the amended complaint, finding that his claims were repetitive of

claims previously asserted in two cases that had been resolved against him. See

Russell, 2008 WL 4533903, at *1. In the same order, it imposed filing

restrictions on Mr. Russell. Id. at *2-*3. 

Mr. Russell filed an initial Rule 59(e) motion to reconsider and for

extension of time to file a notice of appeal. The district court denied both

motions, and this court dismissed his appeal from the denial as untimely. Russell

v. Fin. Capital Cos., No. 08-1494 (10th Cir. Dec. 30, 2008). He subsequently

filed a motion under Rule 60(b) to vacate the district court’s judgment and under

Rule 15 to amend his complaint. Russell, 2008 WL 4533903, ECF No. 27. While

these motions were pending, he filed a motion to recuse a trial judge. Id. at ECF

No. 29. He later filed a motion for new trial under Rule 59, effectively his third

motion to reconsider the order of dismissal. Id. at ECF No. 30.

The district court denied the Rule 60(b)/Rule 15 motion as well as the

motion to recuse and the third motion to reconsider. Id. at ECF Nos. 28, 31, 32.

Both the district court and this court denied Mr. Russell leave to proceed on

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appeal IFP. Our order provided that the appeals would be dismissed if the filing

fees were not paid in twenty days. Russell v. Fin. Capital Cos., Nos. 09-1216, 09-

1228 (10th Cir. Feb. 16, 2010). When the filing fees were not paid, the appeals

were dismissed for failure to prosecute. Russell v. Fin. Capital Cos., Nos. 09-

1216, 09-1228 (10th Cir. Mar. 15, 2010).

Before us on the merits is effectively Mr. Russell’s fourth motion to

reconsider the order of dismissal. A Rule 60(b) motion should be granted only in

exceptional circumstances. ClearOne Commc’ns v. Bowers, 643 F.3d 735, 754

(10th Cir. 2011). We agree with the district court that the current motion under

review is repetitious; the district court did not abuse its discretion in denying it or

the motion for appointment of counsel. We also conclude that the filing

restrictions previously imposed in the district court with notice are appropriate

and consistent with other filing restrictions we have approved given repetitious

litigation. See Ysais v. Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010).

AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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