                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        August 2, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    DAN HENRY TIJERIN A, SR.,

                Plaintiff-Appellant,
                                                          No. 06-4259
    v.                                            (D.C. No. 2:04-CV-935-PGC)
                                                            (D. Utah)
    TO M PATTER SO N , *

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT **


Before H E N RY and A ND ER SO N, Circuit Judges, and BROR BY, Senior Circuit
Judge.


         In October 2004, plaintiff Dan Henry Tijerina, Sr., a Utah state prisoner

appearing pro se, filed this 42 U.S.C. § 1983 civil rights action against numerous

prison officials. In connection with screening his complaint pursuant to

28 U.S.C. §§ 1915–1915A, the district court filed an order (1) denying his

*
       Pursuant to Fed. R. App. P. 43(c)(2), Tom Patterson, the executive director
of the U tah D epartment of C orrections (UDOC), is substituted for Scott V.
Carver, the former executive director of the UDOC, as appellee in this action.
**
       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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
motions for appointment of counsel and a preliminary injunction; (2) holding that

the claims set forth in his complaint were nearly identical to those raised in his

previous § 1983 case, Tijerina v. Offender Mgmt. Review Comm., 91 F. App’x 86

(10th Cir. 2004), such that all but one was barred by the doctrine of claim

preclusion; (3) dismissing the named prison-official defendants under the

doctrines of Eleventh Amendment immunity and qualified immunity;

(4) construing his complaint as a suit against the executive director of the Utah

Department of Corrections (UDOC), joining the executive director under

Fed. R. Civ. P. 19(a) as the sole defendant, and ordering official service of

process on him; and (5) ordering the UDOC to prepare a M artinez report

addressing plaintiff’s remaining claim and the factual allegations supporting it,

see Martinez v. Aaron, 570 F.2d 317, 319-20 (10th Cir. 1978). See Aplee. Br.,

Add. D (O rder filed M ay 31, 2005).

      Thereafter, defendant filed a M artinez report and moved for summary

judgment, challenging the sufficiency of the evidence underlying plaintiff’s sole

remaining claim that the Utah Board of Pardons and Parole (Board) violates the

Fifth Amendment’s privilege against compulsory self-incrimination by

conditioning the availability of parole on whether an inmate convicted of a sexual

offense, like plaintiff, has completed its Sex Offender Treatment Program

(SOTP), in w hich the inmate will be required to admit prior bad acts and risk

being subjected to new criminal charges. After carefully examining the M artinez

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report and plaintiff’s response to defendant’s motion for summary judgment, the

district court granted defendant’s motion, stating:

      Defendant has satisfied his initial summary judgment burden of
      showing that there is an absence of evidence to support Plaintiff’s
      allegation that participation in SO TP requires inmates to make
      self-incriminating statements. . . .

             ....

      Defendant has satisfied his initial summary judgment burden of
      showing that there is an absence of evidence to support Plaintiff’s
      allegation that inmates are compelled to participate in SO TP by the
      likelihood that failure to do so will cause them to be denied parole.

             . . . Based on the record before the Court it is clear that
      Plaintiff has not satisfied his burden on summary judgment of
      producing evidence showing a genuine issue of fact regarding
      whether the Board’s policies amount to compulsion under the Fifth
      Amendment. Instead, the record clearly shows that participation in
      SO TP does not require inmates to incriminate themselves, nor does
      the failure to participate w eigh so heavily in the Board’s parole
      determinations as to amount to compulsion under the Fifth
      Amendment. Thus, the Court concludes that there is no genuine
      issue of material fact remaining and Defendant is entitled to
      judgment as a matter of law. See Fed. R. Civ. P. 56.

Id., Add. E (O rder filed Sept. 7, 2006) at 11, 13, 14. This appeal followed.

                                I. JU RISD IC TIO N

      W e begin by examining our jurisdiction. Defendant contends that this court

lacks jurisdiction because plaintiff’s notice of appeal was untimely, and he is not

entitled to the benefit of the prison mailbox rule embodied in Fed. R. App. P.

4(c)(1).




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      The deadline for filing a notice of appeal in a civil case expires thirty days

after the judgment appealed from is entered. Fed. R. App. P. 4(a)(1). The district

court in this case entered judgment on September 18, 2006. Plaintiff’s notice of

appeal was filed on October 20, 2006, two days late. Although it appears that he

deposited his notice of appeal in the Central Utah Correctional Facility’s internal

mail system on O ctober 16, 2006, it is uncontested that the Facility had an

adequate legal mail system that plaintiff did not use. As such, his notice of

appeal is not entitled to the benefit of the prison mailbox rule. United States v.

Ceballos-M artinez, 371 F.3d 713, 716 (10th Cir. 2004) (“[I]f the prison has a

legal mail system, then the prisoner must use it as the means of proving

compliance with the mailbox rule.”); United States v. Leonard, 937 F.2d 494, 495

(10th Cir. 1991) (“A pro se prisoner who fails to take advantage of the special

filing rule applicable to notices of appeal posted through the legal mail system

foregoes the benefits of that system.”).

      Notw ithstanding, as plaintiff properly asserts in his reply brief, see Sadeghi

v. INS, 40 F.3d 1139, 1143 (10th Cir. 1994) (noting exceptions to general rule

prohibiting consideration of issues raised for the first time in a reply brief), under

Sm ith v. Barry, 502 U.S. 244, 248-49 (1992), a timely filed pro se document may

serve as the functional equivalent of a notice of appeal if it gives the notice

required by Fed. R. App. P. 3(c). Thus, plaintiff asserts that his application for a

certificate of appealability (COA), filed within the thirty-day deadline prescribed

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by Rule 4(a)(1), gave the notice required by Rule 3(c) and therefore is the

functional equivalent of a notice of appeal. We agree. Rule 3(c) requires that a

notice of appeal specify the party or parties taking the appeal, designate the

judgment or order being appealed, and name the court to which the appeal is

taken. Fed. R. App. P. 3(c)(1). Plaintiff’s timely-filed application for a

COA— although legally unnecessary in a § 1983 action— specified the party

taking the appeal and attached a copy of the final judgment. It did, however, fail

to name the Tenth Circuit as the court to which the appeal was being taken.

Despite this omission, we conclude that a dismissal for want of jurisdiction is

unwarranted. Cf. United States v. Treto-Haro, 287 F.3d 1000, 1002 n.1 (10th Cir.

2002) (observing, in case involving a notice of appeal, not a document purported

to be its functional equivalent, that Tenth Circuit possessed jurisdiction despite

appellant’s failure to name Tenth Circuit because it was the only court to which

appellant could take his appeal, and his omission “did not prejudice or mislead”

appellee); Dillon v. United States, 184 F.3d 556, 557 (6th Cir. 1999) (holding that

“where only one avenue of appeal exists, Rule 3(c)(1)(C) is satisfied even if the

notice of appeal does not name the appellate court”); see also Smith, 502 U.S. at

248 (indicating that Rule 3’s requirements will be liberally construed and stating

that the purpose of the rule’s requirements “is to ensure that the filing provides

sufficient notice to other parties and the courts”).




                                          -5-
      Because plaintiff’s application for a COA constituted the functional

equivalent of a timely-filed notice of appeal under Sm ith v. Barry, we conclude

that w e have jurisdiction over plaintiff’s appeal. See Rodgers v. Wyo. Att’y Gen.,

205 F.3d 1201, 1204 & n.3 (10th Cir. 2000) (observing that this court has often

permitted an application for a COA to serve as a notice of appeal and that it has

applied the Smith v. Barry standard in a variety of pro se appeals, including

prisoner civil rights cases), overruled on other grounds as recognized by Moore v.

M arr, 254 F.3d 1235, 1239 (10th Cir. 2001).

                                 II. D ISC USSIO N

      On appeal, plaintiff, whose pro se pleadings we liberally construe,

Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003), contends the

district court erroneously (1) held all but one of his claims barred by claim

preclusion, (2) granted defendant’s motion for summary judgment on his sole

remaining claim, and (3) failed to appoint counsel. See Aplt. Opening Br. at 6,

11. W e review the district court’s claim preclusion ruling de novo. See Hatch v.

Boulder Town Council, 471 F.3d 1142, 1151 (10th Cir. 2006) (citing Wilkes v.

Wyo. Dep’t of Employment, 314 F.3d 501, 503 (10th Cir. 2003)). W e review the

district court’s summary judgment ruling de novo, “applying the same standard

the district court should apply under Fed. R. Civ. P. 56 (c).” Steffey v. Orman,

461 F.3d 1218, 1221 (10th Cir. 2006) (internal quotations omitted). W e review




                                         -6-
the “district court’s refusal to appoint counsel for an indigent prisoner in a civil

case for an abuse of discretion.” Id. at 1223.

      Having review ed the briefs, the record, and the applicable law pursuant to

the above-mentioned standards, we conclude that plaintiff has not shown any

reversible error in this case. Specifically, the district court correctly applied the

claim preclusion doctrine, see Kinnell v. Graves, 265 F.3d 1125, 1128 (10th Cir.

2001) (explaining doctrine), in holding that all but one of plaintiff’s claims “w ere

either previously dismissed with prejudice, or are so closely related to those

dismissed claims that they should have been raised in Plaintiff’s previous

[§ 1983] suit, [Tijerina, 91 F. App’x 86],” Aplee. Br., Add. D at 7. Likewise, the

district court correctly entered summary judgment in defendant’s favor because

plaintiff failed to either “challenge[] the admissibility of the evidence submitted

by Defendant,” or “come forward with any evidence in rebuttal,” id., Add. E at 7.

See Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs.,

165 F.3d 1321, 1326 (10th Cir. 1999) (stating that “[o]nce the movant carries

[his] burden, the nonmovant cannot rest upon his or her pleadings, but must bring

forward specific facts showing a genuine issue for trial as to those dispositive

matters for which [he or she] carries the burden of proof” (internal quotations

omitted)). Finally, neither the district court’s denial of plaintiff’s motion for

appointm ent of counsel, nor its failure to “‘revisit’ the issue” on its own

initiative, Aplt. Opening Br. at 11, was an abuse of discretion. In denying

                                          -7-
plaintiff’s motion for appointment of counsel, the district court carefully

considered the factors pertinent to “deciding whether to appoint counsel,” Rucks

v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (identifying factors), and

concluded that plaintiff had not met his burden of convincing the court that the

appointment of counsel was warranted, M cCarthy v. Weinberg, 753 F.2d 836, 838

(10th Cir. 1985). Further, plaintiff did not renew his motion for appointment of

counsel at any time subsequent to the district court’s denial of that motion.

                                III. C ON CLU SIO N

      The judgment of the district court is A FFIRM ED. Plaintiff’s m otion to

proceed on appeal without prepayment of costs or fees is GRANTED, and he is

reminded that he must make partial payments until his entire appellate filing fee

is paid. The mandate shall issue forthwith.


                                                     Entered for the Court



                                                     Robert H. Henry
                                                     Circuit Judge




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