FILED

United States Court of Appeals

Tenth Circuit

August 25, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RAUL C. ZAPATA, 

Plaintiff - Appellant,

v.

KARI E. BRANDENBURG, Head of

District Attorney Office; ANN

DEMARAIS, Assistant District

Attorney; MAYOR MARTIN

CHAVEZ; CITY OF

ALBUQUERQUE; COUNTY OF

BERNALILLO; SANDY

BARNHART; Y. CHAVEZ, Attorney

at Law Contracted; CHIEF PUBLIC

DEFENDER JOHN BIGELOW FOR

CITY OF ALBUQUERQUE, NEW

MEXICO; COUNTY OF

BERNALILLO PUBLIC DEFENDER

OFFICE; JUANITA DURAN; TROY

W. PRICHARD, P.A.; DONNA

BEISMAN; MARIA ARREOLA;

MANUEAL ROJO; DE DEHERRIDA;

D. VASQUEZ; A. SANCHEZ; M.

WERLEY, 

Defendants - Appellees.

No. 08-2031

(D.C. No. CIV-07-519-RB-WPL)

(D. N.M)
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RAUL C. ZAPATA, 

Plaintiff - Appellant,

v.

RONALD TORRES, Chief of

Corrections; RIEL WATSON,

Chaplain, 

Defendants - Appellees.

No. 08-2056

(D.C. No. CIV-06-1200-WJ-CG)

(D. N.M)

RAUL C. ZAPATA, 

Plaintiff - Appellant,

v.

ATTORNEY RAUL LOPEZ, 

Defendant - Appellee.

No. 08-2059

(D.C. No. CIV-06-1108-MCA-KBM)

(D. N.M)

RAUL C. ZAPATA, 

Plaintiff - Appellant,

v.

SUSAN PORTER, Attorney for the

State of New Mexico Public Defenders

Office; PUBLIC DEFENDERS

OFFICE, 

Defendants - Appellees.

No. 08-2064

(D.C. No. CIV-06-952-MCA-KBM)

(D. N.M)
*

 This order and judgment is not binding precedent except under the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

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ORDER AND JUDGMENT*

Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.

Raul Zapata is a prisoner in the state system in New Mexico. He has filed

appeals in the four above-captioned matters that we have consolidated for

decision. Because Mr. Zapata is proceeding pro se, we construe his filings

liberally. Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007). 

1. Zapata v. Brandenburg, No. 07-CV-519, (D. N.M. Jan. 3, 2008). In this

suit, Mr. Zapata brought a number of claims against a number of individuals

involved in his state criminal proceedings. The district court dismissed each of

the claims in this matter sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B) and

Fed. R. Civ. P. 12(b)(6). It did so on two bases. First, the court concluded that

most of the claims Mr. Zapata asserted would imply that his state criminal

judgment was invalid, and thus were barred by Heck v. Humphrey, 512 U.S. 477,

487 (1994). Second, it concluded that certain other of Mr. Zapata’s claims were

duplicative of claims contained in other suits filed by Mr. Zapata. We have
1

 In conjunction with this case, Mr. Zapata has filed a document entitled,

“Motion of New Evidence.” Even though this document is captioned as a motion,

it merely directs us to supplementary legal authority. 

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reviewed the district court’s disposition de novo and affirm for substantially the

reasons given by that court.1

2. Zapata v. Torres, No. 06-CIV-1200 (D. N.M. Jan. 24, 2008). As a

threshold matter, we must confront a question concerning our jurisdiction. In this

case, Mr. Zapata did not file a formal notice of appeal, but did file a motion for

leave to proceed on appeal without prepayment of the filing fees. Under our case

law, other documents besides a formally denominated notice of appeal, may serve

as its “functional equivalent,” Smith v. Barry, 502 U.S. 244, 248 (1992), and we

have previously held that a pro se motion to proceed in forma pauperis can serve

as just such a functional equivalent when it evinces a clear intent to appeal,

Fleming v. Evans, 481 F.3d 1249, 1253-54 (10th Cir. 2007). Mr. Zapata’s motion

to proceed without prepaying filing fees clearly evinces an intent to appeal and

was filed in a timely basis. Accordingly, we conclude that we have jurisdiction to

entertain his appeal.

Turning to the merits of this case, it is an action filed under 42 U.S.C.

§ 1983 against officials in the New Mexico state detention center in which Mr.

Zapata contends that his right to the free exercise of his religion was infringed. 

Specifically, Mr. Zapata alleges that he was confined to his room for periods of

time and ultimately removed from a faith-based program because he refused to
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convert to a different religious faith. The defendants responded to this suit in

district court with a summary judgment motion, supported by affidavits indicating

that the treatment of which Mr. Zapata complained resulted not from his alleged

refusal to convert, but because he was combative and threatening toward other

inmates and staff. Aple. Appx. at 41, 50, 51, 61-63. 

The magistrate judge assigned to the case recommended dismissal on two

bases: first, Mr. Zapata had failed to show a policy of either the prison or the

faith-based program that substantially burdened his religious beliefs; second, even

if Mr. Zapata could establish such a burden, any restrictions placed on him were

reasonably related to ensuring the safety of inmates and staff – a legitimate

penological interest. The district court adopted the magistrate judge’s

recommendation in full. On appeal, Mr. Zapata does not address the merits of

this case at all, but has submitted the same brief he filed in the Brandenburg case,

which has no bearing on his asserted free exercise claim in this case. In view of

Mr. Zapata’s pro se status, we have nonetheless reviewed the matter with care and

are able to discern no errors in the district court’s disposition. 

3-4. Zapata v. Lopez, No. 06-CV-1108 (D. N.M. Feb. 11, 2008) and

Zapata v. Porter, No. 06-CV-952 (D. N.M. Feb. 11, 2008). These matters are not

new to this court. We previously affirmed the district court’s dismissal of both

complaints in Zapata v. Public Defender’s Office, No. 06-2334, 2007 WL

3104864 (10th Cir. Oct. 24, 2007) (unpublished). They have returned to us via
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Mr. Zapata’s unsuccessful motion in the district court for a relief from judgment

and subsequent appeal. 

The district court was correct to deny relief. As that court noted, after the

court of appeals has adjudicated an appeal and the mandate has issued, a district

court generally may not amend the judgment “beyond the ministerial dictates of

the mandate.” Colorado Interstate Gas Co. v. Natural Gas Pipeline Co. of

America, 962 F.2d 1528, 1534 (10th Cir. 1992). This court affirmed the

judgments of the district court and issued no ministerial dictates in its mandate. 

Accordingly, the district court was without authority to grant relief.

***

The district court’s dismissal in each of these cases was appropriate and we

affirm them. Because none of Mr. Zapata’s four appeals present non-frivolous

arguments, we deny his request for in forma pauperis status, remind him that he is

responsible for paying the applicable filing fees, and assess four “strikes” against

him pursuant to 28 U.S.C. § 1915(g).

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge