                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                    September 11, 2018
                   UNITED STATES COURT OF APPEALS
                                                                    Elisabeth A. Shumaker
                                TENTH CIRCUIT                           Clerk of Court



 VICTOR ANDREW APODACA, SR.,

              Plaintiff - Appellant,

 v.                                                      No. 18-2007
                                              (D.C. No. 1:15-CV-00061-JAP-LF)
 GERMAN FRANCO; MICHELLE                                  (D. N.M.)
 BOYER; VINCENT VIGIL; GREGG
 MARCANTEL; TISHA ROMERO,

              Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges.


      After examining the briefs and the 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).

This case is therefore ordered submitted without oral argument.

      Plaintiff Victor Apodaca, Sr., a state prisoner proceeding pro se, filed this

42 U.S.C. § 1983 complaint to challenge the allegedly unconstitutional actions of



      *
        This order and judgment is not binding precedent, except under the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.
various prison officials and a nurse who worked at the prison. The district court

dismissed Plaintiff’s claims against the nurse based on res judicata, since

Plaintiff had raised the same claims against the same nurse in a prior state action.

The court dismissed a second defendant from the action because the complaint

only mentioned this defendant in passing and did not state any allegations against

him. The remaining defendants filed a Martinez report and request for summary

judgment. See Martinez v. Aaron, 570 F.2d 317, 318–19 (10th Cir. 1978). The

district court permitted Plaintiff to file an untimely response, with attached

exhibits, to the defendants’ Martinez report due to his alleged difficulties with the

prison mail system. Considering all of the documents submitted by both parties,

the court then held that all of Plaintiff’s claims against the remaining defendants,

with one exception, were subject to dismissal for failure to exhaust administrative

remedies. The court further held that even if the claims had been properly

exhausted, they each failed on the merits because Plaintiff had not submitted or

identified evidence that would establish a material dispute of fact as to any of

these claims. The court therefore dismissed all of Plaintiff’s remaining claims.

      After reviewing all of the filings on appeal, the appellate record, and the

relevant cases, we are not persuaded that the district court erred in dismissing

Plaintiff’s claims against each of the defendants named in his complaint.

Therefore, for substantially the same reasons given by the district court in its

comprehensive rulings, we AFFIRM the dismissal of this case. We GRANT

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Plaintiff’s motion to supplement his opening brief and have considered his

supplementary materials in ruling on this appeal. We GRANT Plaintiff’s motion

to proceed in forma pauperis on appeal but remind him of his obligation to

continue making partial payments until the entire filing fee has been paid in full.

                                              Entered for the Court



                                              Monroe G. McKay
                                              Circuit Judge




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