* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### FEB 10 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID WORKMAN, Plaintiff-Appellant,

v. ROY ROMER, Governor; ARISTEDES ZAVARAS, Department of Corrections Executive Director; BRAD ROCKWELL, Department of Corrections Legal Access Director; CATHIE DALTON, Legal Access Program Employee; KATHLEEN BAXTER, Legal Access Program Employee; REGINALD SHOCKLEY, Legal Access Program Employee, all in their official and individual capacities, Defendants-Appellees. No. 96-1479 (D.C. No. 95-N-311) (D. Colo.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined1 The district court entered its order on September 2 4, 1996. Mr. Workman

filed a timely appeal. Subsequent proceedings in t he appeal were delayed because of an incorrect mailing address for Mr. Workman. -2- unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument. David Workman, a prisoner incarcerated at the Limon Correctional Facility in Colorado, brought this pro se action pursuant to 42 U.S.C. §1983 alleging that his constitutional rights were violated due to defe ndants’ refusal to photocopy a legal document exceeding the thirteen-page limit th en imposed by prison regulations. The district court dismissed Mr. Workman’s appeal on three grounds: 1) defendants’ actions did not impede Mr. Workman’s access to the courts; 2) Mr. Workman’s complaint failed sufficiently to allege personal participation on the part of the named defendants; and 3) an identical complaint was previously dismissed by the district court barr ing Mr. Workman’s claims in the instant action under the doctrine of res judicata. Mr. Workman subsequently filed a notice of appeal and moved that he be allow ed to proceed in forma pauperis under 28 U.S.C. §1915(b) and Fed. R. App. P. 24. The district court denied the motion, finding that the appeal was not taken in good faith. Mr. Workman now appeals the district court’s orders. 1 On July 17, 1995, the district court dismissed an a ction filed by Mr.2 On appeal, Mr. Workman appears to raise claims not included in his

complaint before the district court. To the extentthe appeal does raise new issues, we do not consider them. See 10th Cir. R. 28.2(b); Valley Improvement Ass’n, Inc. v. United States Fidelity & Guaranty Co rp. , 129 F.3d 1108, 1121 (10th Cir. 1997). Mr. Workman may pursue these claims in a separate action should he -3- Workman in which the complaint was identical to the one at issue here. See Workman v. Romer , Civil Action No. 95 N 210 (D. Colo. Jul. 17, 1995 ). The doctrine of res judicata bars the relitigation of a ll claims that were or could have been advanced in a prior proceeding. See Nwosun v. General Mills Restaurants, Inc. , 124 F.3d 1255, 1257 (10th Cir. 1997). Res judicata requires the satisfaction of four elem ents: (1) the prior suit must have ended with a judgment on the merits; (2) the parties must have been identical or in privity; (3) the sui t must be based on the same cause of action; and (4) the plaintiff mus t have had a full and fair opportunity to litigate the claim in the p rior suit. Id. ; see also Murdock v. Ute Indian Tribe of Uintah & Ouray Rese rvation , 975 F.2d 683, 687 (10th Cir. 1992). All four criteria are met here where the parties and issues are identical to those in the action pre viously dismissed on its merits, and where there has been no showing that the partie s did not have a full and fair opportunity to litigate their claims. Because Mr. Workman’s appeal provides no basis on w hich the district court’s res judicata determination should be revers ed, and indeed fails even to address the question, we hold that Mr. Workman’s ap peal is frivolous or malicious under 28 U.S.C. §1915(e)(2)(B)(i). 2 We therefore DENY himchoose to do so, bearing in mind the limitations imposed by the Prison Litigation

Reform Act. See 28 U.S.C. §1915(g).

3 Mr. Workman’s motion for appointed counsel on appea l is denied. -4- permission to proceed in forma pauperis pursuant to 28 U.S.C. §1915(a)(3) and DISMISS the appeal. 3 Further, this dismissal counts as a “prior occasi on” for purposes of 28 U.S.C. §1915(g). The mandate shall issue forthwith. ENTERED FOR THE COURT

STEPHANIE K. SEYMOUR CHIEF JUDGE