                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         NOV 2 2004
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 WILLIAM McNALLY,

          Plaintiff-Appellant,

 v.

 COLORADO STATE PATROL;
 COLONEL LONNIE J. WESTPHAL;                           No. 02-1428
 MAJOR GUY F. KING; CAPTAIN                       (District of Colorado)
 STEVE MYERS; TROOPER C.D.                     (D.C. No. 01-B-1473 (MJW))
 BLANSCET; TROOPER WILLIAM
 DREW HERRINGTON; TROOPER
 ROBERT KLADDE, all individually
 and in their professional capacities,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, Circuit Judges, and STEWART, District Judge. **


I.    INTRODUCTION

      *
       This order and judgment is not binding precedent, except under the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.
      **
         The Honorable Ted Stewart, District Judge, United States District Court,
District of Utah, sitting by designation.
      William McNally filed this suit against the Colorado State Patrol and six

individual officers, alleging that his constitutional rights were violated when he

was arrested, charged with several drug- and weapons-related offenses, and

convicted in state court. McNally’s complaint raises the following claims: (1)

malicious prosecution depriving him of his Fourth Amendment rights; (2)

violation of his due process right to a fair trial; (3) false imprisonment subsequent

to his conviction in violation of the Fourth Amendment; (4) failure of the

Colorado State Patrol to adequately train and supervise its employees, resulting in

a violation of his constitutional rights; and (5) the state law torts of negligence

and outrageous conduct. The district court granted summary judgment for the

defendants on grounds of claim and issue preclusion, adopting the magistrate

judge’s conclusion that McNally had previously litigated identical claims against

the same defendants and lost. McNally appeals. This court has jurisdiction under

28 U.S.C. § 1291 and affirms the district court’s grant of summary judgment.

II.   BACKGROUND

      Trooper Robert Kladde of the Colorado State Patrol discovered marijuana

and a gun in McNally’s possession after pulling him over on Interstate 25 and

searching his car. McNally was charged with possession of drug paraphernalia,

driving a vehicle without a valid driver’s license, refusing to give his driver’s

license to a peace officer upon request, driving while his license was under



                                          -2-
restraint, driving while impaired by the consumption of drugs, prohibited use of

weapons, and possession of less than one ounce of marijuana.

      After a jury trial, McNally was convicted on all counts. The state appeals

court reversed the driving-while-impaired charge because the prosecution had

introduced expert testimony on McNally’s intoxication after stipulating that such

evidence would not be introduced. On remand, McNally argued that his

remaining convictions should also be reversed because he had not been informed

that his trial counsel was practicing under the state student-practice act and was

not a licensed attorney at the time of trial. The court granted McNally’s motion,

and the prosecution advised the court that it would not seek retrial on any of the

charges in light of the difficulty of obtaining the attendance of witnesses and the

fact that McNally had already served seventeen days in jail.

      McNally then filed a 42 U.S.C. § 1983 suit in federal district court

(McNally I), arguing, among other things, that Kladde lacked probable cause to

stop and search the car, and that Kladde and other state troopers had lied under

oath in pre-trial proceedings and at trial. The district court construed McNally’s

arguments as claims alleging malicious prosecution, false imprisonment, and

violation of his due process right to a fair trial. The court granted summary

judgment to the defendants, in part, on the ground that these claims were




                                         -3-
premature under the Supreme Court’s decision in Heck v. Humphry, 512 U.S. 477

(1994).

      In Heck, the Court held that a § 1983 plaintiff must prove that a conviction

has been declared invalid by a state tribunal authorized to make such a

determination before recovering damages on a claim that the conviction was

unconstitutional. 512 U.S. at 486-87. Although McNally submitted evidence to

the court that his convictions had already been reversed by the state courts, the

district court was not persuaded and concluded that he had failed to demonstrate

that six of his seven convictions had been overturned. On the driving-while-

impaired charge, the court agreed that the conviction had been reversed on appeal

but nevertheless granted summary judgment to the defendants on grounds of issue

preclusion. The court reasoned that McNally had litigated and lost the issue of

probable cause at his criminal trial and direct appeal, and therefore could not

establish an essential element of his malicious prosecution claim.

      McNally appealed to this court, which remanded to the district court with

instructions to dismiss the malicious prosecution, due process, and post-

conviction false imprisonment claims without prejudice. McNally v. Colorado

State Patrol, 13 Fed. Appx. 806, 808 & n.1 (10th Cir. 2001) (unpublished). The

court held that, under Heck, McNally should be free to refile his claims if he were

to later succeed in getting his convictions reversed. Id. McNally attempted to



                                         -4-
present more evidence of the status of his convictions, but the court declined to

consider any new evidence offered for the first time on appeal. Id. at 808.

       McNally then filed the present suit in the district court, raising a subset of

his previous claims and alleging nearly identical facts. The district court granted

summary judgment to the defendants both on the merits and on grounds of claim

and issue preclusion. On appeal, McNally admits that his state-law tort claims are

waived for failure to file the required notice of claim. He also does not dispute

the district court’s determination that the Eleventh Amendment bars his suit

against the Colorado State Patrol and its officers in their official capacities. His

remaining claims are therefore: (1) claims against the individual defendants for

malicious prosecution, denial of due process, and post-conviction false

imprisonment; and (2) claims against individual Colorado State Patrol supervisors

for failure to adequately train and supervise.

III.   DISCUSSION

       This court reviews orders granting summary judgment de novo. Sigmon v.

CommunityCare HMO, Inc., 234 F.3d 1121, 1124 (10th Cir. 2000). Summary

judgment is appropriate “if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c).



                                          -5-
      The defendants urge the court to affirm the order of the district court on

grounds of claim and issue preclusion, arguing that McNally has already litigated

and lost all his current claims in McNally I. Claim preclusion applies if three

elements exist: (1) a judgment on the merits in an earlier action, (2) identity of

parties in both suits, and (3) identity of the cause of action in both suits. King v.

Union Oil Co. of Cal., 117 F.3d 443, 445 (10th Cir. 1997). Because McNally’s

claims against these defendants relating to his driving-while-impaired conviction

were reduced to a final judgment in McNally I and affirmed on appeal, they are

barred by claim-preclusion doctrine from relitigation here.

      McNally’s claims relating to his other six convictions, however, were

dismissed without prejudice following remand in McNally I for failure to

demonstrate reversal of the convictions as required by Heck. Generally, a

dismissal without prejudice does not operate as a final adjudication on the merits

and has no claim-preclusive effect on a later suit. Santana v. City of Tulsa, 359

F.3d 1241, 1246 n.3 (10th Cir. 2004). Claim-preclusion doctrine therefore does

not bar McNally’s claims to the extent they are based on the defendants’ allegedly

wrongful conduct with regard to the other six convictions.

      In contrast to claim preclusion, issue preclusion bars relitigation of matters

actually litigated and adjudged, even if there is no final judgment on the merits.

See Park Lake Res. Ltd. Liability Co. v. U.S. Dept. of Agric., 378 F.3d 1132, 1136



                                          -6-
(10th Cir. 2004); In re Kauffman Mut. Fund Actions, 479 F.2d 257, 267 (1st Cir.

1973) (holding that dismissal without prejudice still bars relitigation of the “very

question which was litigated in the prior action” (quotation omitted)). An issue is

barred from relitigation by issue preclusion when the issue was actually and

necessarily decided in a prior case and the party against whom issue preclusion is

invoked has had a full and fair opportunity to litigate the issue to be precluded.

Willner v. Budig, 848 F.2d 1032, 1034 (10th Cir. 1988).

      In examining McNally’s claim of malicious prosecution in the context of

his driving-while-impaired conviction, the McNally I court held that he would

have to demonstrate that the defendants lacked probable cause to arrest and

prosecute him. The court further held that McNally was estopped from arguing a

lack of probable cause because he had already raised and lost the issue in his

state-court suppression hearing. The district court’s disposition of McNally’s

malicious prosecution claim in the context of his driving-while-impaired

conviction, which he has already litigated and lost, is equally applicable to the

claim in the context of all his other criminal convictions. McNally’s malicious

prosecution claim is therefore barred by issue preclusion because he cannot

relitigate the issue of probable cause.

      McNally’s second claim alleges that the defendants lied under oath,

resulting in a denial of his due process right to a fair trial. In the context of the



                                           -7-
driving-while-impaired conviction, the McNally I court treated McNally’s

allegation of pre-trial perjury as an aspect of his malicious prosecution claim and

rejected it for the same reason. To the extent that this claim instead related to

perjured testimony at trial, the court concluded that the defendants’ testimony was

entitled to absolute immunity. McNally is estopped from rearguing these issues

here for the reasons set out above.

      The McNally I court did not resolve McNally’s claim of post-conviction

false imprisonment because McNally had not alleged that his conviction resulted

in a term of imprisonment. This claim, however, is merely a variant of his

malicious prosecution claim and is thus similarly barred. Both claims rely on

identical allegations for support and essentially argue that McNally was falsely

imprisoned as a result of the wrongful prosecution against him. In similar

circumstances, the Supreme Court in Heck held that a claim for post-conviction

confinement was most analogous to a claim for malicious prosecution, because

the torts of false arrest and false imprisonment permit damages only for “the time

of detention up until issuance of process or arraignment, but not more.” Heck,

512 U.S. at 484 (quotation omitted). A malicious-prosecution suit, in contrast,

“permits damages for confinement imposed pursuant to legal process.” Id.

McNally’s false imprisonment claim is therefore really just another aspect of his




                                          -8-
rejected malicious prosecution claim, and issue preclusion bars its relitigation

here for those reasons set out above.

      Because McNally has not established any constitutional violations by the

defendants, his claim against the Colorado State Patrol supervisors for failure to

adequately train and supervise must also fail. McNally concedes that his

respondeat superior claim depends on a finding of an underlying constitutional

violation. He has failed to show such a violation, and the supervisors are

therefore not liable.

      McNally argues that because his criminal convictions were overturned in

state court for ineffective assistance of counsel, the state courts’ determination of

probable cause cannot serve as a bar to further litigation in his civil case. He

reasons that when a court’s decision is based on doctrines of claim or issue

preclusion, and the underlying case is thereafter reversed, the court’s decision

must also be reversed because its premise is no longer valid. McNally, however,

relies on Timberlake v. Southern Pacific Co., in which the overturned judgment

was based on claim preclusion, not issue preclusion. 420 F.2d 482, 483 (10th Cir.

1970) (per curiam). As already explained, issue preclusion applies even in the

absence of a final judgment. Park Lake, 378 F.3d at 1136. Because McNally’s

criminal convictions were reversed for reasons unrelated to the merits of the

probable cause determination, issue-preclusion doctrine is still applicable.



                                          -9-
      McNally makes the weightier argument that the reversal of his convictions

for ineffective assistance of counsel demonstrates that he never received a “full

and fair opportunity” to litigate the issue of probable cause. Willner, 848 F.2d at

1034. This court need not examine the merits of this claim, however, because the

McNally I court’s determination that the probable cause issue was barred by issue

preclusion is in itself a final, preclusive determination. McNally knew at the time

of McNally I that his criminal convictions had been overturned and attempted to

present evidence of this fact to the district court. McNally was given a full and

fair opportunity to litigate the issue in the context of the defendants’ motion for

summary judgment. See Matosantos Commercial Corp. v. Applebee’s Int’l, Inc.,

245 F.3d 1203, 1211 (10th Cir. 2001) (“[A] plaintiff has a full and fair

opportunity to litigate if it is allowed to submit evidence to defeat a motion for

summary judgment.”). The court was nevertheless unpersuaded, concluding that

McNally had failed to demonstrated that six of his seven convictions had been

reversed. McNally cannot defeat the issue-preclusive effect of the McNally I

court’s determination of the status of his convictions merely by alleging facts in a

new proceeding that were available during the initial litigation but that he failed

to present at that time. Park Lake, 378 F.3d at 1137-38; Magnus Elec., Inc. v.

Republica Argentina, 830 F.2d 1396, 1400-01 (7th Cir. 1987).




                                         -10-
      McNally’s proper remedy after losing on summary judgment in McNally I

was a motion to reopen the judgment with a Rule 59 or 60 motion in the district

court, not the filing of a new action. See Magnus Elec., Inc., 830 F.2d at 1402.

Even “[a]n erroneous judgment fairly and regularly entered by a court of

competent jurisdiction is nevertheless an effective bar under the doctrine of res

judicata to a subsequent action between the same parties on the same cause of

action.” Murphy v. Klein Tools, Inc., 935 F.2d 1127, 1129 (10th Cir. 1991)

(quotation omitted). That McNally was unrepresented by counsel in his first suit

does not change this result. An unrepresented litigant “cannot generally be

permitted to . . . avoid the risks of failure that attend his decision to forgo expert

assistance.” Dozier v. Ford Motor Co., 702 F.2d 1189, 1194 (D.C. Cir. 1983).

      McNally also argues that the issue-preclusive effect of McNally I should be

relieved because the defendants committed a fraud on the court in that case. He

claims that, by not informing the McNally I court that his convictions had been

reversed for ineffective assistance of counsel, the defendants fraudulently allowed

the court to rely on those overturned convictions in ruling on the malicious

prosecution claim. To prevail on the issue of fraud, McNally must demonstrate

by clear and convincing evidence that the defendants deliberately defrauded the

court, and all doubts must be resolved in favor of the finality of the judgment.

Weese v. Schukman, 98 F.3d 542, 552-53 (10th Cir. 1996).



                                          -11-
      McNally did not raise his fraud claim below, and this court will not

consider a new theory on appeal. Bancamerica Commercial Corp. v. Mosher

Steel of Kan., Inc., 100 F.3d 792, 798-99 (10th Cir. 1996), amended on other

grounds by 103 F.3d 80 (10th Cir.1996). Despite this general rule, McNally asks

the court to invoke its inherent authority to disregard a fraudulently obtained

judgment, citing United States v. Buck, 281 F.3d 1336, 1341 (10th Cir. 2002).

Buck makes clear, however, that McNally’s allegations would not rise to the level

of a fraud on the court even if they were true. The Buck court wrote:

      Generally speaking, only the most egregious misconduct, such as
      bribery of a judge or members of a jury, or the fabrication of
      evidence by a party in which an attorney is implicated will constitute
      a fraud on the court. Less egregious misconduct, such as
      nondisclosure to the court of facts allegedly pertinent to the matter
      before it, will not ordinarily rise to the level of fraud on the court.

Buck, 281 F.3d at 1342 (quotation omitted) (emphasis added).

      McNally cites dicta in Robinson v. Volkswagenwerk AG for the

proposition that the preclusive effect of a prior judgment should

nevertheless be relieved if one party concealed material information from

the court. 56 F.3d 1268, 1274 n.5 (10th Cir. 1995). The Robinson court

relied for this proposition on the Restatement (Second) of Judgments. Id.

(citing Restatement (Second) of Judgments § 28 cmt. j (1982)). That

section of the Restatement also explains, however, that “[s]uch a refusal to

give the first judgment preclusive effect should not occur without a

                                         -12-
compelling showing of unfairness, nor should it be based simply on a

conclusion that the first determination was patently erroneous.”

Restatement (Second) of Judgments § 28 cmt. j.

      McNally has not made this showing of unfairness. His allegations

amount merely to a claim that the defendants “had reason to know” the

status of his criminal convictions and that it was “reckless of the State to

continue its reliance on the assumption Mr. McNally’s convictions

remained intact.” This allegation does not rise to the level of deliberate

conduct required for a showing of fraud. See Weese, 98 F.3d at 553.

Furthermore, McNally himself had access to proof that his convictions had

been overturned and attempted to present this evidence to the court. Under

these circumstances, fairness does not demand relieving the preclusive

effect of the prior judgment. Accordingly, this court holds that McNally’s

suit is barred by claim and issue preclusion.




                                         -13-
IV.   CONCLUSION

      For the foregoing reasons, this court affirms the district court’s grant

of summary judgment for the defendants. McNally’s motion for leave to

proceed in forma pauperis is granted.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




                                         -14-
