                                                                                  F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                   NOV 12 1998
                                     TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                        Clerk

 JEFFREY D. TRUJILLO,

           Plaintiff-Appellant,
 v.                                                             No. 98-2173
                                                        (D.C. No. CIV-95-1303-BB)
 CITY OF ALBUQUERQUE,                                    (District of New Mexico)

           Defendant-Appellee.




                                  ORDER AND JUDGMENT*


Before PORFILIO, KELLY, and HENRY, Circuit Judges.



       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); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

       This is the second time this case has been before us. On the first appeal, the court

affirmed the district court’s dismissal of Jeffrey Trujillo’s pro se complaint raising tort,



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
contract, and disability claims, but remanded the Title VII complaint for a determination

whether it was timely filed. The only question to be resolved by the district court was

whether the complaint was filed before October 30, 1995, the last day for filing under

Title VII. See Trujillo v. City of Albuquerque, No 97-2125, January 21, 1998.

       After an evidentiary hearing at which testimony was presented from district court

clerks which conflicted with that of Mr. Trujillo, the magistrate judge to whom the matter

was assigned made specific findings that the complaint was filed on October 31, 1995,

one day late. Upon the magistrate’s recommendation, the district court dismissed the

complaint and this appeal ensued.

       In this court, Mr. Trujillo restates the same arguments raised in the district court,

but makes no attempt to show the magistrate’s findings of fact were clearly erroneous.

On that basis, we affirm the dismissal.

       It is undisputed Mr. Trujillo received his right to sue letter on July 21, 1995. He

therefore had to file his action in the district court prior to October 30, 1995. 42 U.S.C.

§ 2000e-5(f)(1). Despite Mr. Trujillo’s claim that he tried to file his complaint on

October 27, but was rejected by a district court clerk because he did not have the filing

fee, the magistrate judge found pro se pleadings are received by the district court

regardless whether the filer can pay the fee. Moreover, the magistrate found, Mr.

Trujillo’s complaint was actually filed on October 31 and accepted even though he did

not pay the filing fee. Findings were also made that no false representations were made


                                             -2-
to Mr. Trujillo, nor had misinformation been given to him, and he had not been deceived

or mislead.

       Mr. Trujillo has failed to show how these findings were erroneous in any way.

Therefore, we are bound by them. Manning v. United States, 146 F.3d 808, 812 (10th

Cir. 1998).

       Because resolution of the dispute over the filing date of the complaint was the only

matter before the district court following our remand, the remaining arguments advanced

by Mr. Trujillo in this appeal are without merit. We therefore AFFIRM the judgment of

the district court dismissing the complaint.



                                           ENTERED FOR THE COURT


                                           John C. Porfilio
                                           Circuit Judge




                                               -3-
