                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                      UNITED STATES CO URT O F APPEALS
                                                                   October 5, 2007
                                                     Elisabeth A. Shumaker
                          FO R TH E TENTH CIRCUIT        Clerk of Court




    RICH ARD DEE THOM AS,

              Plaintiff-Appellant,

     v.                                                   No. 06-4211
                                                  (D.C. No. 2:93-CV-925-PGC)
    GEO RG E VA UG HN ; DO N B ELL;                         (D. Utah)
    RA Y D ALLING ; RO N H UN T; SALT
    LA K E CITY ,

              Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before HA RTZ, Circuit Judge, BROR BY, Senior Circuit Judge, and
T YM K O VIC H, Circuit Judge.




          This civil rights action brought under 42 U.S.C. § 1983 stems from the

arrest and conviction of Richard Dee Thomas for aggravated robbery. The facts

are well known to the parties and need not be recited here. Suffice it to say that




*
       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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
the issues raised in this pro se appeal were rejected by the district court, which

denied M r. Thomas’s motion for partial summary judgment and dismissed the

complaint under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(e).

W e have jurisdiction under 28 U.S.C. § 1291 and affirm.

                                           I.

      M r. Thomas was arrested and convicted for the aggravated robbery of a

fast-food restaurant and an ensuing stand-off at his nearby apartment. Following

his surrender, police obtained a warrant issued by a court comm issioner rather

than a judge to search his apartment. The warrant was held invalid in subsequent

state court proceedings, thus prompting M r. Thomas to maintain a claim against

the commissioner for unconstitutional search and seizure in violation of the

Fourth Amendment. But recognizing that the commissioner w as entitled to

absolute judicial immunity because she acted with de facto authority and

otherwise finding no Fourth Amendment violation, the district court dismissed the

claim, and we affirmed. See Thomas v. Palacios, No. 98-4196, 1999 W L 710340

(10th Cir. Sept. 13, 1999) (unpublished); see also Thom as v. Palacios,

No. 95-4094, 1995 W L 758970 (10th Cir. Dec. 26, 1995) (unpublished).

      In this action, M r. Thomas again asserted that the invalid warrant violated

his Fourth Amendment rights. The district court, however, determined that

M r. Thomas was collaterally estopped from raising this issue because he “had a

‘full and fair opportunity’ to litigate the constitutionality of the warrant” in his

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previous action against the commissioner. R. Doc. 83 at 12. W e review the

district court’s application of collateral estoppel de novo, Salguero v. City of

Clovis, 366 F.3d 1168, 1172 (10th Cir. 2004), and agree that the earlier

disposition is binding. As the court explained, “[u]nder the doctrine of collateral

estoppel, . . . ‘once a court has decided an issue of fact or law necessary to its

judgment, that decision may preclude relitigation of the issue in a suit on a

different cause of action involving a party to the first case.’” R. Doc. 83 at 11-12

(quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)). Because the Fourth

Amendment issue had already been decided against M r. Thomas, the district court

correctly concluded that he was collaterally estopped from raising it again.

      The court also correctly determined that defendants are entitled to qualified

immunity on the initial warrantless entry. Observing that “the Fourth Amendment

prohibition against unreasonable searches and seizures was well established at the

time of this incident,” the court nonetheless held that the exact contours of the

exigent circumstances exception asserted by defendants “were sufficiently

uncertain,” and that “under such ambiguous circumstances[,] officers are entitled

to qualified immunity so long as their mistake was reasonable.” Id. at 23.

Applying our precedent, the court determined that defendants’ mistaken belief

that exigent circumstances existed to enter the apartment was reasonable, and that

they were therefore entitled to qualified immunity. Id. at 24. W e agree with the

court’s assessment.

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        Finally, we also agree that M r. Thomas’ excessive force and municipal

liability claims were properly dismissed under the PLRA, 28 U.S.C.

§ 1915(e)(2)(B). M r. Thomas alleged only de minimus force used by the officers

and failed to specify an official policy or custom that caused a constitutional

violation. The district court correctly determined that without more, these

allegations were insufficient to sustain either his claim for excessive force, see

Cortez v. M cCauley, 478 F.3d 1108, 1129 (10th Cir. 2007), or municipal liability,

see Darr v. Town of Telluride, __ F.3d __ 2007 W L 2218882, at *10 (10th Cir.

Aug. 3, 2007).

                                          II.

        The district court’s analysis was detailed, accurate, and complete. Thus,

having reviewed the court’s order, the record on appeal, the parties’ materials,

and the relevant legal authority, we affirm the district court’s judgment for

substantially the same reasons as those set forth in its order dated August 11,

2006.

                                                     Entered for the Court


                                                     Timothy M . Tymkovich
                                                     Circuit Judge




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