                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS March 19, 2009
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT
                                                                    Clerk of Court


 CHARLIE JAMES GRIFFIN, JR.,
               Plaintiff-Appellant,                      No. 08-1301
          v.                                 (D.C. No. 07-cv-00177-MSK-MJW)
 OFFICER GASH,                                             (D. Colo.)
               Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and GORSUCH, 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). The case is therefore ordered

submitted without oral argument.

      In 2007, Plaintiff filed the instant complaint in the District of Colorado

alleging that Defendant assaulted him in January 2003. The district court

concluded that Plaintiff was barred from asserting this claim, which had

previously been dismissed with prejudice by the same court. Specifically,



      *
        This order and judgment is not binding precedent, except under the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.
Plaintiff filed a complaint against Defendant in 2004 in the District of Colorado

alleging the same operative facts and making the same claim, and that complaint

was dismissed with prejudice fourteen months later based on Plaintiff’s failure to

comply with the court’s order regarding monthly filing fee payments.

      As the district court noted, a dismissal with prejudice bars the refiling of

the same claim in the same court by the same plaintiff. See Semtek Int’l Inc. v.

Lockheed Martin Corp., 531 U.S. 497, 505-06 (2001). We thus see no error in the

court’s decision to dismiss the instant complaint.

      Plaintiff argues that the district court erred by failing to appoint him an

attorney, and he requests that this court appoint counsel to represent him on

appeal. We hold that the district court did not abuse its discretion in denying the

request for appointment of counsel. We likewise decline to appoint counsel to

represent Plaintiff on appeal.

      Plaintiff contends that the court erred by failing to inform him that he

should respond to Defendant’s summary judgment motion. However, the record

reflects that Plaintiff in fact filed a timely response to the motion and that the

district court considered this response in its order dismissing the case. Thus,

whether notice came from the district court or not, Plaintiff clearly received both

notice and an opportunity to respond to the summary judgment motion.

      Plaintiff contends that the district court erred by failing to consider a

number of factors, such as his long-term mental illness. Plaintiff failed to raise

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these issues at any time during the proceedings in the district court, and we

therefore do not consider them on appeal. See Treff v. Galetka, 74 F.3d 191, 193

(10th Cir. 1996).

      We GRANT Plaintiff’s motion to proceed in forma pauperis on appeal and

remind him of his continuing obligation to make partial payments until his filing

fee has been paid in full. We AFFIRM the district court, and all other pending

motions are DENIED.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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