                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                December 2, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT


 OLOYEA D. WALLIN,

          Plaintiff-Appellant,
 v.                                                    No. 10-1242
                                              (D.C. No. 07-CV-00318-WDM)
 F. DYCUS, MR. GILBERT, MR.                             (D. Colo.)
 DOMENICO, MS. TRAUB,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Oloyea D. Wallin, a prisoner at Colorado’s Kit Carson Correctional Center,

filed two actions under 42 U.S.C. § 1983 concerning his treatment there. The

first action ended when the district court granted summary judgment against Mr.

Wallin, see Wallin v. Dycus, 2009 WL 2490127 at *8 (D. Colo. Aug. 13, 2009),

and we affirmed that decision, see Wallin v. Dycus, 381 F. App’x 819, 825 (10th

Cir. 2010). After granting summary judgment in the first case, the district court


      *
         After examining appellant’s brief and the 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) and 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order and judgment is not binding precedent except under the doctrines of law of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.
raised the possibility that Mr. Wallin’s second case was barred by the doctrine of

claim preclusion (i.e., res judicata). Eventually, the district court concluded that

the second case was indeed so precluded and entered judgment on this basis, a

ruling that led to this appeal.

      After an independent review of the record, we conclude the district court

was correct in holding Mr. Wallin’s second case is barred by claim preclusion.

Claim preclusion bars a lawsuit when four elements are present: (1) a prior suit

ended with a judgment on the merits; (2) the parties in both suits are identical or

in privity; (3) the second suit is based on the same cause of action as the first; and

(4) the plaintiff had a full and fair opportunity to litigate the claim in the prior

suit. Plotner v. AT&T Corp., 224 F.3d 1161, 1168 (10th Cir. 2000). On appeal,

we review de novo the application of these principles. Id.

      Even giving Mr. Wallin’s pro se filings before us the solicitous

consideration they are due, he appears to contest only the third and fourth claim

preclusion elements. On the third element, however, Mr. Wallin admits “the facts

of both actions are the same,” Aplt. Opening Brief at 3, and our independent

review confirms that there can be no doubt his lawsuits are both based on the

same cause of action. See Plotner, 224 F.3d at 1169 (explaining the Tenth Circuit

has adopted the Restatement (Second) of Judgment’s transactional approach to

defining “cause of action” and thus bars “all claims or legal theories of recovery

that arise from the same transaction, event, or occurrence”). On the fourth

                                           -2-
element, Mr. Wallin complains he lacked a full and fair opportunity to litigate

certain of his claims in his first lawsuit. Like the district court, we cannot agree.

The record shows that Mr. Wallin had ample opportunity to shape his first

lawsuit, including the opportunity (which he exercised) to amend his complaint.

In short, we affirm the district court’s order dismissing Mr. Wallin’s second

lawsuit on claim preclusion grounds for substantially the same reasons the district

court gave in its thoughtful opinion. Mr. Wallin’s motion to proceed on appeal

in forma pauperis is denied. **


                                        ENTERED FOR THE COURT



                                        Neil M. Gorsuch
                                        Circuit Judge




      **
          Mr. Wallin was initially allowed by the clerk’s office to file this appeal
without prepayment of the filing fee only because he filed the appeal before his
third strike for purposes of 28 U.S.C. § 1915 became effective. Given our denial
of ifp status in this order, however, Mr. Wallin remains liable for payment of the
filing fee.

                                          -3-
