                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                       October 12, 2005
                            FOR THE TENTH CIRCUIT
                                                                        Clerk of Court


    STACEY W. BRACKENS,

                Plaintiff-Appellant,

      v.                                              No. 05-3039
                                               (D.C. No. 04-CV-1259-JTM)
    BEST CABS, INC.; WALGREEN’S                         (D. Kan.)
    INC.; WESLEY MEDICAL CENTER;
    BOARD OF COUNTY
    COMMISSIONERS OF SEDGWICK
    COUNTY, KANSAS; GARY STEED,
    Individually and in his official
    capacity as Sheriff of Sedgwick
    County, Kansas; REBECCA
    PILSHAW, Individually and in her
    official capacity as Judge of Sedgwick
    County, Kansas; STATE OF
    KANSAS; AMY MCCLELLAN;
    EDWARD SIMS,

                Defendants-Appellees.


                            ORDER AND JUDGMENT          *




Before HENRY, ANDERSON , and TYMKOVICH , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Stacey W. Brackens, appearing pro se, appeals from the district court’s

order dismissing his claims against defendants Best Cabs, Inc. and Amy

McClellan. Upon the recommendations of the magistrate judge to whom the case

was initially assigned, the district court sua sponte dismissed the claims under

28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be

granted. Because we conclude that all claims were properly dismissed, we affirm.

                                           I.

      We review a § 1915(e)(2)(B)(ii) dismissal de novo.      McBride v. Deer, 240

F.3d 1287, 1289 (10th Cir. 2001). “‘[I]n reviewing the dismissal of a complaint,

all well-pleaded facts, as distinguished from conclusory allegations, must be taken

as true. In addition, we will take the allegations in the plaintiff’s objections to

the magistrate’s report and recommendation as true.’”      Id. (quoting Dunn v.

White , 880 F.2d 1188, 1190 (10th Cir. 1989) (brackets and italics omitted)). We

review the district court’s discretionary decision to dismiss a plaintiff’s pendent




                                          -2-
state-law claims for abuse of that discretion.     See Baker v. Bd. of Regents,   991

F.2d 628, 634 (10th Cir. 1993).

                                            II.

       Since 2002, Mr. Brackens has sued Best Cabs and Ms. McClellan at least

three times each.   1
                        In November 2002 he sued Best Cabs for retaliation and

discrimination under Title VII.    2
                                       In February 2004 and August 2004 he sued Best

Cabs, Ms. McClellan, and most of the other defendants listed in the instant case

for retaliation, discrimination, defamation, harassment, and false imprisonment.

The suits filed in 2004 relate to Mr. Brackens’s challenge to three temporary

restraining orders (TROs) issued in 2003 that prohibit his contact with three

women: Ms. Abushikha (who leases a taxi from Best Cabs) on June 20, 2003;

Ms. McClellan (Mr. Brackens’s next-door neighbor with whom he and his wife

have been feuding for over three years) on July 21, 2003; and Ms. Fleming (who

is allegedly Ms. McClellan’s friend) on October 9, 2003. According to his 2004

complaints, Mr. Brackens was arrested and sentenced to sixty days in jail for

contempt of court for violating the TRO involving Ms. McClellan when he

appeared in court to challenge the TRO prohibiting contact with Ms. Fleming. He


1
      Mr. Brackens also states that he has previously sued Ms. McClellan for
allegedly telling lies about him in a state small-claims court. R. Doc. 1 at 12.
2
        We recently affirmed the dismissal of this case in Brackens v. Best Cabs,
Inc. , No. 04-3293, 2005 WL 1785328 (10th Cir. July 28, 2005).

                                             -3-
claims his arrest and confinement were unlawful because there was no probable

cause to arrest him; because he had no notice of the contempt charge, no

representation at the hearing, and no opportunity to prepare a defense; and

because the defendant state-court judge was not a neutral judge.

       Although he appeals only from the dismissal of his claims against Best

Cabs and Ms. McClellan, Mr. Brackens also sued the local sheriff and the state-

court judge in both federal complaints filed in 2004, alleging violations of 42

U.S.C. § 1983 for the above-described imprisonment on the contempt charge.        3



These allegations gave the district court federal-question jurisdiction over the two

suits. See 28 U.S.C. §§ 1331, 1343.

       Just over a week after filing his February 2004 complaint, Mr. Brackens

filed a voluntary motion to dismiss, seeking an order of dismissal   with prejudice.

The district court granted the motion. Mr. Brackens then filed the instant suit in

August 2004. After reviewing both suits, the district court concluded that all of

Mr. Brackens’s claims were now barred by the doctrine of res judicata because of

the previous with-prejudice dismissal. R. Doc. 16 at 4-7. The court also

concluded that, even though Ms. McClellan had filed for an extension of the TRO

after the court had granted Mr. Brackens’s voluntary motion to dismiss the


3
       Mr. Brackens moved to amend his August 2004 complaint to withdraw the
state-court judge as a defendant on October 29, 2004. R. Doc. 14. The district
court granted the motion. R. Doc. 16 at 1.

                                            -4-
February 2004 case, that was not an “adequate ground[] to permit [Mr. Brackens]

to open a case in which he initiated dismissal.”     Id. at 6.

       Mr. Brackens moved for reconsideration. He argued that, because his

August complaint asserted wrongful acts that had occurred after the filing of his

February complaint, his claims against Best Cabs and Ms. McClellan were not

precluded by res judicata.    See Mitchell v. City of Moore , 218 F.3d 1190, 1202-03

(10th Cir. 2000) (holding that claim preclusion does not necessarily bar a plaintiff

from litigating a claim based on conduct occurring after the initial complaint was

filed). On reconsideration, the district court concluded that the claims against

Best Cabs merely alleged “new theories to reopen his earlier case,” and declined

to change its judgment. R. Doc. 29 at 3. As to Ms. McClellan, the district court

refused to review the “new evidence and facts” raised in the motion for

reconsideration, stating that those arguments should have been made prior to the

entry of judgment.    Id. at 4. In the alternative, the district court essentially

determined that, having dismissed the § 1983 claims, it no longer possessed

federal subject-matter jurisdiction. The court held that there was no showing that

Ms. McClellan was a state actor or that she acted under color of state law such

that the court could maintain federal-question jurisdiction over her, and that there

was no diversity between the parties giving rise to diversity jurisdiction.     See id.


                                             -5-
Mr. Brackens appeals.

                                         III.

      A. Best Cabs.      In his August 2004 suit, Mr. Brackens sought

compensation from Best Cabs for retaliation, causing false imprisonment, and

stress. See R. Doc. 1 at 23. He asserted that Best Cabs was “the mother to this

whole case” because Ms. McClellan would not have filed her stalking complaint

that resulted in his imprisonment if Best Cabs had not allegedly told

Ms. Abushikha to file the first stalking complaint in retaliation for Mr. Brackens

having filed his November 2002 complaint against Best Cabs.      Id. One may

wonder what Mr. Brackens’s problems with Best Cabs had to do with his

problems with his next-door neighbor, Ms. McClellan. Mr. Brackens explains

that he informed Ms. McClellan of those problems by distributing a letter in

which he complained that he had been unfairly adjudged of being

Ms. Abushikha’s stalker and accused the state-court judge of being unfit for

judicial service. He believes that his letter gave Ms. McClellan the idea “to file a

stalking complaint of her own.”   Id. at 11. He claims, therefore, that his

imprisonment for contempt for violating the TRO is ultimately the result of Best

Cabs’ alleged retaliation.

      We agree with the district court that, even if we accept as true the

allegations and claim of an attenuated nexus between Best Cabs’ alleged actions


                                         -6-
and an allegedly false imprisonment, because Mr. Brackens made the same claims

in his February 2004 suit that was dismissed      with prejudice, he cannot raise them

in a new federal suit.   See Semtek Int’l, Inc. v. Lockheed Martin Corp.   , 531 U.S.

497, 505-06 (2001) (noting that using the words “with prejudice” in an order of

voluntary dismissal “is an acceptable form of shorthand for an adjudication upon

the merits”) (quotation marks omitted). Under Rule 41(a) of the Rules of Civil

Procedure, a dismissal with prejudice bars the plaintiff from the “refiling of the

same claim” in the same court.     Semtek Int’l, Inc. , 531 U.S. at 506. Although

Mr. Brackens now argues that he “made a mistake in [his] wording” by requesting

that the case be dismissed with prejudice and that he should be relieved from the

consequences of his mistake, Aplt. Br. at 2, he never moved for relief on that

basis in the district court, so we do not address his contention raised for the first

time on appeal.   See Tillman ex rel. Estate of Tillman v. Camelot Music, Inc.   , 408

F.3d 1300, 1307 (10th Cir. 2005).

       Mr. Brackens next asserts that two actions, which he associates with Best

Cabs and which occurred after the filing and dismissal of his February 2004

complaint, preclude dismissal of his August 2004 federal suit against Best Cabs.

First, he asserts that, in March 2004, Best Cabs’ owner’s son threatened to “kick




                                            -7-
[his] ***.” R. Doc. 1 at 23. 4 Second, he claims that in December 2004, a taxi

driver who leases a cab from Best Cabs left a text message on Mr. Brackens’s

wife’s phone in an effort to “upset” Mr. Brackens. Id. Even assuming the truth

of these allegations and that they state a state-law claim upon which relief may be

granted, neither allegation states a federal claim upon which relief may be

granted, and no diversity exists between the parties that would give rise to federal

jurisdiction. See Nicodemus v. Union Pac. Corp., 318 F.3d 1231, 1235 (10th Cir.

2003). The district court did not err by dismissing these pendent state-law claims,

having concluded that the federal claims against the sheriff and the judge had to

be dismissed.   See United Mine Workers of Am. v. Gibbs    , 383 U.S. 715, 726

(1966) (“Certainly, if the federal claims are dismissed before trial, even though

not insubstantial in a jurisdictional sense, the state claims should be dismissed as

well.”). We conclude that the district court properly dismissed the claims against

Best Cabs.

      B. Ms. McClellan . Mr. Brackens is similarly barred from raising the same

false imprisonment and harassment claims in his August 2004 suit that were

raised in the February 2004 suit against Ms. McClellan. Mr. Brackens argues that

the following claims against Ms. McClellan should not be dismissed because they


4
        Mr. Brackens also used this alleged fact as a basis for his Title VII suit for
retaliation against Best Cabs. See Brackens v. Best Cabs, Inc. , No. 04-3293, 2005
WL 1785328, *2 (10th Cir. July 28, 2005) (unpublished)

                                         -8-
occurred after February 2004: (1) he thinks that “someone from [Ms.

McClellan’s] home” threw a rock on the hood of his car, R. Doc. 1 at 20; (2) she

told lies about him in order to request, and obtain an extension of, the TRO after a

hearing, R. Doc. 7 at 2-3; (3) she put broken glass in his driveway, R. Doc. 20 at

3; and (4) she allowed her sons to fire “bottle rockets at his front door” when no

one was home, id. We conclude that these pendent state-law claims were also

properly dismissed.   See Gibbs , 383 U.S. at 726. As the district court noted,

Ms. McClellan is not a state actor, the alleged facts do not present a federal

claim, and there is no diversity between the parties.

      The judgment of the district court is AFFIRMED.



                                                        Entered for the Court



                                                        Timothy M. Tymkovich
                                                        Circuit Judge




                                          -9-
