                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        June 26, 2007
                                    TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                        Clerk of Court

 TH O MA S J. LO WE RY ,

          Plaintiff - Appellant,
                                                        No. 06-4296
 v.                                              (D.C. No. 2:05-CV-884-TC)
                                                          (D. Utah)
 STATE OF UTAH; UTAH THIRD
 D ISTR ICT C OU RT; LEO N A .
 DEVER, in his official capacity as a
 Utah Third District Court Judge,

          Defendants - Appellees.



                              OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges. **


      Plaintiff-Appellant Thomas J. Lowery appeals the district court’s dismissal

of his state and federal claims against Utah District Judge Leon A. Dever, the

Third District Court of Utah, and the State of Utah (collectively “D efendants”).

This, however, is not the first time M r. Lowery has appeared in federal court to

      *
        This order and judgment is not binding precedent, except under the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.
assert state and federal claims against Defendants.

      In 2004, M r. Lowery filed claims in federal court against Defendants for

violation of Title II of the Americans with Disabilities Act (ADA), violation of

his due process and equal protection rights under the U tah and U .S. Constitutions,

and intentional infliction of emotional distress. M r. Lowery’s claims stemmed

from a state court lawsuit in which M r. Lowery appeared pro se before Judge

Dever. M r. Lowery claimed that his rights were violated when Judge Dever twice

dismissed his claims prior to holding oral argument; Judge Dever eventually

vacated the dismissals and set oral argument, but M r. Lowery claimed the prior

dismissals triggered a psychotic reaction making it impossible for him to present

coherent argument. M r. Lowery also claimed that the Third District Court and the

State of Utah were liable for Judge Dever’s actions under the doctrine of

respondeat superior. On November 29, 2004, M r. Lowery’s claims were

dismissed on grounds of judicial immunity; M r. Lowery did not appeal.

      In the instant action, M r. Lowery asserts claims against Defendants for

violation of Title II of the ADA, 42 U.S.C. §§ 1981 and 1983, Title VII of the

Civil Rights Act of 1964, the 14th Amendment to the U.S. Constitution and

article I, section 7 of the Utah Constitution, and the Rehabilitation Act of 1973.

He also claims intentional and negligent infliction of emotional distress. M r.

Lowery’s claims again arise out of Judge Dever’s dismissal of his claims prior to

oral argument. Consequently, the district court below accepted the magistrate

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judge’s recommendation that the current claims be dismissed on claim preclusion

grounds. See Low ery v. State, No. 2:05CV884 TC, 2006 W L 2868398, at *1, *3

(D. Utah Oct. 4, 2006). W e agree that M r. Lowery’s claims are barred.

      “A final judgment on the merits of an action precludes the parties or their

privies from relitigating issues that were or could have been raised in that action.”

Federated Dep’t Stores, Inc. v. M oitie, 452 U.S. 394, 398 (1981). Claim

preclusion requires: “(1) a judgment on the merits in the earlier action; (2)

identity of the parties or their privies in both suits; and (3) identity of the cause of

action in both suits.” H atch v. Boulder Town Council, 471 F.3d 1142, 1149 (10th

Cir. 2006). Also, “the absence of a full and fair opportunity to litigate [is] . . . an

exception to . . . claim preclusion when the three . . . requirements are otherwise

present.” Yapp v. Excel Corp., 186 F.3d 1222, 1227 n.4 (10th Cir. 1999).

      Here, the prior federal court dismissal is undoubtedly a final judgment on

the merits and the parties in this and the prior federal lawsuit are identical.

M oreover, the third requirement is met because each claim in the current action is

either identical to one brought in the former action or, if not, the claim arises out

of the same common nucleus of operative facts and therefore could have been

brought as part of that action. The record also reveals that M r. Lowery received a

“full and fair opportunity to litigate” his prior claims. Finally, the Supreme

Court’s decision in Tennessee v. Lane, 541 U.S. 509 (2004), has nothing to do

with, and no effect upon, the doctrine of claim preclusion.

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A FFIR ME D.



               Entered for the Court


               Per Curiam




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