                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                        December 3, 2019
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 TERESITA REYES,

       Plaintiff - Appellant,

 v.                                                         No. 19-1295
                                                (D.C. No. 1:19-CV-01579-LTB-GPG)
 LARIMER COUNTY; LARIMER                                     (D. Colo.)
 COUNTY PLANNING COMMISSION;
 JEFF JENSEN,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before McHUGH, KELLY, and MORITZ, Circuit Judges.
                  _________________________________

      Teresita Reyes, proceeding pro se, appeals the dismissal of her complaint.1 She

argues that the district court improperly found her claims in this action precluded by

claims she brought in an earlier action. For the reasons explained below, we affirm.




      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
       1
         We liberally construe Reyes’s pro se filings. But we will not act as her
advocate by, for example, formulating possible arguments or combing the record for
support. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
      Reyes brought the earlier action with her husband, filing a complaint against

the Larimer County Planning Commission (LCPC) and two of its members.

Complaint at 1, Reyes v. Larimer Cty. Planning Comm’n., No. 18-CV-03115 (D.

Colo. Dec. 24, 2018).2 They alleged in part that the defendants violated the

Americans with Disability Act (ADA) when a chairperson at an August 2018 LCPC

public hearing did not permit Reyes to speak on behalf of her disabled husband.

Amended Complaint at 4, Reyes, No. 18-CV-03115. In March 2019, the district court

dismissed all of Reyes’s claims with prejudice.3 Order to Dismiss in Part and to Draw

Case at 8, Reyes, No. 18-CV-03115. It did so because she (1) failed to allege facts

sufficient to show she suffered a legal injury and (2) lacked standing to bring claims

on behalf of her husband. Id. at 5.

      After the district court dismissed Reyes as a party to the first action, she filed

this case. She again named LCPC and the same two commission members as

defendants, as well as Larimer County. The magistrate judge directed her to amend

her complaint, warning that she could not assert any claims arising from the public

hearing that she could have asserted in the prior action. Reyes filed an amended

complaint alleging that the defendants (1) failed to have an ADA employee at the


      2
         Although the pleadings from this case do not appear in the record on appeal,
we take judicial notice of these district-court documents. See Rose v. Utah State Bar,
471 F. App’x 818, 820 (10th Cir. 2012) (unpublished) (approving of district court’s
decision to take judicial notice of state-court filings when deciding motion to
dismiss).
       3
         This dismissal was partial; the district court allowed some of Reyes’s
husband’s claims to proceed. Order to Dismiss in Part and to Draw Case at 8–9,
Reyes, No. 18-CV-03115.
                                           2
public hearing; (2) failed to provide a grievance procedure, in violation of 28 C.F.R.

§ 35.107; (3) failed to inform Reyes and others of their rights under the ADA, in violation

of 43 C.F.R. § 17.511; (4) discriminated against Reyes because of her race at the public

hearing, in violation of 43 C.F.R. § 17.3; (5) violated her due-process and equal-

protection rights in various other ways; and (6) failed to train commissioners on the

ADA.

       The magistrate judge recommended dismissing all six claims and, over Reyes’s

objections, the district court adopted that recommendation. In particular, the district court

concluded that five of the six claims—all but claim two—were barred by claim

preclusion. And the district court dismissed claim two because § 35.107 does not create a

private right of action and, regardless, Reyes failed to allege sufficient facts to

demonstrate a violation or injury. Next, to the extent that some of these five precluded

claims were based on facts not connected to the August 2018 public hearing, the district

court found that Reyes alleged insufficient facts to support her claims. Additionally, the

district court dismissed Reyes’s third and fourth claims on the alternative ground that the

regulations she relied on, § 17.511 and § 17.3, do not apply to the defendants here. Reyes

now appeals, challenging only the finding of claim preclusion.

       We review de novo a district court’s application of claim-preclusion principles.

Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221, 1230 (10th Cir.

2017). “[C]laim preclusion applies when three elements exist: (1) a final judgment on the

merits in an earlier action; (2) identity of the parties in the two suits; and (3) identity of

the cause of action in both suits.” MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th

                                               3
Cir. 2005). For the purposes of claim preclusion, causes of action are the same if they

arise from the same “transaction, event, or occurrence.” Plotner v. AT & T Corp., 224

F.3d 1161, 1169 (10th Cir. 2000) (quoting Nwosun v. Gen. Mills Rests., Inc., 124 F.3d

1255, 1257 (10th Cir. 1997)). Reyes does not dispute the identity of the parties. But she

contends that there was never a final judgment on the merits and that the current claims

arose after the August 2018 public hearing.

       In doing so, she first argues that the district court erred in finding that there was a

final decision on the merits in the first action because “the dismissal of [her first]

complaint was procedural” and not on the merits. Aplt. Br. 5. But the district court

dismissed Reyes from the first action with prejudice. Order to Dismiss in Part and to

Draw Case at 8, Reyes, No. 18-CV-03115. And a dismissal with prejudice is a final

decision on the merits for claim preclusion. Murphy v. Klein Tools, Inc., 935 F.2d

1127, 1127, 1129 (10th Cir. 1991). Thus, the district court did not err in concluding

that there was a final judgment on the merits in the first action.

       Next, Reyes contends the district court erred by finding that her current and

prior claims arose out of the same event, transaction, or occurrence. In particular,

Reyes argues that in her objections to the magistrate judge’s recommendation, she

asserted “newly discovered claims” that arose after the August 2018 hearing. Aplt.

Br. 6. The district court, she contends, erred by not considering these new claims. But

the district court specifically overruled Reyes’s objections. We can infer, therefore,

that the district court considered and rejected both Reyes’s objections and any new

claims contained in those objections. In any event, arguments and claims raised for

                                               4
the first time in an objection to a magistrate judge’s report and recommendation are

waived. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). Thus, even if the

district court did not consider any new claims that Reyes may have raised in her

objections to the magistrate judge’s recommendation, it did not err. Cole v. New

Mexico, 58 F. App’x 825, 829 (10th Cir. 2003) (unpublished) (upholding district

court’s decision to not consider “new claim” made in objection). Moreover, we

discern no error—and Reyes points to none—in the district court’s broader

conclusion that to the extent Reyes’s claims related to the August 2018 hearing, they

arose out of the same transaction or occurrence as the claims in the first action and

were therefore subject to claim preclusion.

      Reyes also separately and more generally argues that the district court violated

her due-process rights. Specifically, she argues that the district court failed to

consider the substance of her complaint, improperly dismissed the complaint before

the defendants were served, denied her discovery, denied her an opportunity to

confront and cross-examine witnesses, and denied her legal counsel. None of these

arguments have merit. First, because the district court found that her complaint failed

to state any claims, it could not have considered the substance of her claims. Second,

Reyes is proceeding in forma pauperis, and as such, the district court was required to

dismiss her complaint once it determined the complaint failed to state a claim—

regardless of whether defendants were served. See 28 U.S.C. § 1915(e)(2)(B)(ii).

Third, because the district court was required to dismiss her case, it could not have

permitted any discovery. Fourth, the constitutional right to confront witnesses is

                                            5
limited to criminal defendants. Bennett v. Nat'l Transp. Safety Bd., 66 F.3d 1130,

1136 (10th Cir. 1995). Fifth, there is generally no due-process right to an attorney in

civil cases unless there are liberty or property interests at stake, and Reyes points to

no such interests here. See Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989); cf.

Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 31–32 (1981) (finding district court did

not err in failing to appoint counsel in parental-termination proceeding).

      We therefore affirm the district court’s order. As a final matter, we note that

after submitting her briefing, Reyes filed a “Motion to Amend” with this court. To

the extent that it raises new claims, we decline to consider them for the first time on

appeal. Wilburn v. Mid-S. Health Dev., Inc., 343 F.3d 1274, 1280–81 (10th Cir.

2003). To the extent that it includes additional facts, we do not consider them

because our review is limited to the record before the district court. United States v.

Ezeah, 738 F. App’x 591, 595 n.4 (10th Cir. 2018) (unpublished). Thus, we deny this

motion.



                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




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