                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                    March 10, 2016
                      UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                    TENTH CIRCUIT                     Clerk of Court



 STEVEN GILKEY,

          Plaintiff - Appellant,

 v.
                                                        No. 15-2218
                                            (D.C. No. 2:15-CV-00204-MV-WPL)
 GREG MARCANTEL, WENDY
                                                         (D.N.M.)
 PEREZ, MICHELLE BOYER,
 COLLEEN McCARNEY, JERRY
 ROARK,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before GORSUCH, BALDOCK, and McHUGH, Circuit Judges.


      Steven Gilkey, a prisoner housed at the Lea County Correctional Facility in

New Mexico, alleges that his refusal to inform on corrupt prison officials resulted

in a sustained campaign of retaliation — one year of disciplinary segregation and

then nine months’ placement in interim Level VI classification — in violation of



      *
         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 This order is not binding
precedent except under the doctrines of law of the case, res judicata and collateral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.
his Eighth and Fourteenth Amendment rights. But the district court determined

that the allegations in Mr. Gilkey’s amended complaint were virtually identical to

allegations in an earlier (and unsuccessful) lawsuit filed by Mr. Gilkey a year

before and thus were barred by the doctrine of res judicata. Dismissing Mr.

Gilkey’s complaint, the district court denied his request to proceed on appeal in

forma pauperis and certified the appeal as frivolous. Mr. Gilkey now seeks leave

from this court to proceed in forma pauperis and asks us to reverse the district

court’s dismissal of his complaint.

      We cannot provide relief. Mr. Gilkey advances a number of arguments for

why the district court should not have applied the doctrine of res judicata to bar

his claims, targeted primarily at its third element: that the two suits be based on

the same cause of action. See Nwosum v. General Mills Rests., Inc., 124 F.3d

1255, 1257 (10th Cir. 1997). Mr. Gilkey first points out that his earlier suit

included factual allegations not even mentioned in this one — specifically, the

disciplinary hearing that led to his year-long segregation. And to the extent other

facts overlap, he suggests that his claims here didn’t exist when the first action

was filed. But he admits that both suits involved the same alleged “denial of

classification” after segregation ended, with claims premised on the same alleged

violation of a prison policy providing for classification review within five days.

That’s all that’s required. See id. (“[A] a cause of action includes all claims or

legal theories of recovery that arise from the same transaction, event, or

                                        -2-
occurrence. All claims arising out of the transaction must therefore be presented

in one suit or be barred from subsequent litigation.”). 1

      The remaining elements of res judicata do not change the outcome. While

Mr. Gilkey tries to suggest that his claims, while presented in his first suit, were

not actually decided when the district court dismissed that complaint for failing to

state constitutional claims, it is well established that “[a] ruling that a party has

failed to state a claim on which relief may be granted is a decision on the merits

with full res judicata effect.” State Farm Mut. Auto. Ins. Co. v. Dyer, 19 F.3d

514, 518 n.8 (10th Cir. 1994) (internal quotation marks omitted). The fact that

Mr. Gilkey has named different defendants does not change the analysis. See

United States v. Rogers, 960 F.2d 1501, 1509 (10th Cir. 1992) (“There is privity

between officers of the same government so that a judgment in a suit between a

party and [one officer of the government] is res judicata in relitigation of the

same issue between that party and another officer of the government.”). And Mr.

Gilkey points us to no facts suggesting that he lacked a full and fair opportunity

to litigate his claim in the prior suit. Nwosum, 124 F.3d at 1257.




      1
         Mr. Gilkey claims the district court completely ignored his allegations
about the negative mental health effects from his prolonged placement in Level
VI, but those allegations appeared only in his original complaint and were absent
from his amended complaint. See Davis v. TXO Production Corp., 929 F.2d
1515, 1517 (10th Cir. 1991) (“[I]t is well established that an amended complaint
ordinarily supersedes the original and renders it of no legal effect.”).

                                         -3-
      Mr. Gilkey’s only other argument on appeal is a factual one. He faults the

district court for characterizing his placement in Level VI as a “reclassification”

when he alleges that prison officials refused to review his status or to reclassify

him to a lower confinement level. But this distinction is of no legal significance

to the res judicata analysis that formed the basis of the district court’s dismissal,

or to our analysis of that dismissal on appeal.

      The district court’s order is affirmed and the appeal is dismissed. We also

agree with the district court that Mr. Gilkey’s appeal is “without merit in that it

lacks an arguable basis in either law or fact.” Thompson v. Gibson, 289 F.3d

1218, 1222 (10th Cir. 2002). We thus deny his motion for leave to proceed in

forma pauperis. Mr. Gilkey is reminded that he is obliged to pay the filing fee in

full. We further note that the district court’s dismissal and our own dismissal of

his appeal each count as strikes under 28 U.S.C. § 1915(g). See Jennings v.

Natrona Cty. Det. Ctr., 175 F.3d 775, 780-81 (10th Cir. 1999).


                                                ENTERED FOR THE COURT



                                                Neil M. Gorsuch
                                                Circuit Judge




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