                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 19 2001
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 JOHN HAYWOOD DIXON,

          Plaintiff-Appellant,
 v.
                                                       No. 01-1125
 PATRICK SULLIVAN, Sheriff;
                                                    (D.C. No. 00-S-928)
 ARAPAHOE COUNTY DETENTION
                                                        (D. Colo.)
 FACILITY AND MEDICAL
 DEPARTMENT; DEPUTY
 JOHNSON; NURSE BACKSTREET,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges.


      In March 2000, Plaintiff-Appellant, John Dixon, filed a pro se civil rights

complaint pursuant to 42 U.S.C. § 1983 against Sheriff Patrick Sullivan and the

Arapahoe County Detention Facility alleging deliberate indifference to his health



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
and safety. (Complaint 00-ES-559.) Mr. Dixon claimed that Nurse Backstreet

and Deputy Johnson failed to give him proper medication. (Id.) On April 7,

2000, the United States District Court for the District of Colorado dismissed his

claims as legally frivolous. (Order and Judgment of Dismissal, Civil Action 00-

ES-559.)

      A month later, Mr. Dixon filed a claim against the same defendants, Sheriff

Sullivan and Arapahoe Detention Facility, and added Deputy Johnson and Nurse

Backstreet as defendants. In this complaint, he alleged violations of the Eighth

and Fourteenth Amendments and negligence based on his belief that he did not

receive the proper medication. (Complaint, 00-S-928.) The defendants then filed

a motion to dismiss.

      On February 6, 2001, the magistrate judge recommended that the entire

case be dismissed on several grounds. (Magistrate’s Recommendation at 16.)

She found that Mr. Dixon’s constitutional claims against the defendants in their

official capacities were barred by res judicata. (Id. at 11.) She also found that

the defendants named in their individual capacity, Sheriff Sullivan, Deputy

Johnson, and Nurse Backstreet, were entitled to qualified immunity. (Id.) Lastly,

she recommended that the district court decline to exercise supplemental

jurisdiction over the state negligence claim. (Id.) The recommendation advised

Mr. Dixon that he may file written objections to the recommendations and that


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failure to do so “may result in a waiver of the right to appeal from a judgment of

the district court based on the findings and recommendations of the magistrate

judge.” 1 (Id. at 16-17.)

      On February 23, 2001, the district court accepted the recommendations of

the magistrate judge and dismissed the complaint in its entirety. (February 23,

2001 Order, Civil Action 00-S-928). On February 28, 2001, Dixon’s written

objections to the magistrate’s recommendation were received in the district court.

(Doc. 64.) On March 2, 2001, Dixon filed a letter contending that his objections

were timely filed. (Doc. 65). The district court, treating Dixon’s letter as a

motion pursuant to F. R. Civ. P. 59(e), held that Dixon’s objections, “filed on

February 28th were beyond the correct deadline,” without stating what date it

determined to be the deadline. (April 13, 2001 Order, Civil Action 00-S-928).

This appeal of the district court’s dismissal of Dixon’s complaint followed.

      First, we must determine whether Dixon’s objections were timely filed. We

conclude that they were. The magistrate judge’s recommendation was filed and

served by mail on February 6, 2001. “Within ten days after being served with a

copy, any party may serve and file written objections to such proposed findings


      1
        As we find that Mr. Dixon’s written objections were timely filed, we need
not decide whether the recommendation’s language that failure to object to the
magistrate’s findings “may waive his right to appeal,” as opposed to “will waive
his right to appeal,” is sufficient for an application of our waiver rule under
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

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and recommendations . . . .” 28 U.S.C. § 636 (b)(1); see also Fed. R. Civ. P.

72(b). Accounting for weekends, President’s Day, and service by mail, Dixon’s

objections should have been served and filed by February 26, 2001. See

§ 636(b)(1); Fed. R. Civ. P. 72(b); Fed. R. Civ. P. 6(a) (intermediate Saturdays,

Sundays and holidays not counted when time period is less than eleven days), 6(e)

(additional three days for service by mail).

      Dixon served his objections and mailed them for filing on February 26,

2001. He later sent the district court clerk a letter with appropriate entries on the

prison mail log verifying this date of mailing. (Doc. 74). Under the mailbox rule

of Houston v. Lack, 487 U.S. 266, 276 (1988), Dixon’s objections are deemed

filed the date they are delivered to prison authorities for forwarding to the district

court. Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989) (“Although

plaintiff’s objections were filed in the district court beyond the ten-day limit,

plaintiff mailed his objections from prison in a timely fashion.”). Therefore,

Dixon’s objections to the magistrate’s recommendations were timely filed.

      Turning to the merits of Dixon’s claim, we agree with the magistrate’s

recommendation that Mr. Dixon’s constitutional claims were barred by res

judicata. Res judicata applies if (1) there was a final judgment on the merits in

the earlier action; (2) the parties are identical or in privity in both cases; and (3)




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the cause of action is the same. See Satsky v. Paramount Communications, Inc., 7

F.3d 1464, 1467 (10th Cir. 1993).

      In dismissing Dixon’s first civil rights complaint, the district court held that

the claim was legally frivolous, meaning that it “assert[ed] the violation of a legal

interest that clearly does not exist or asserts facts that do not support an arguable

claim.” (Order and Judgment of Dismissal, No.00-ES-559.) Therefore, Mr.

Dixon received a judgment on the merits in his previous claim. See Kinnell v.

Graves, No. 00-3404, 2001 WL 1078090, at *1 (10th Cir. Sept. 14, 2001) (holding

that res judicata barred relitigation of previous claims dismissed as frivolous).

Further, the parties in the second action are identical or in privity to the parties in

the first action. See Gonzales v. Hernandez, 175 F.3d 1202, 1206 (10th Cir.

1999) (stating that “the general weight of authority” is that government employees

are in privity with their employers in their official capacities). Finally, Mr.

Dixon’s cause of action for his constitutional claims is the same in his second

complaint as in his first, the failure to give him the proper medication, which he

claims rose to the level of deliberate indifference. (Complaint, 00-ES-559;

Complaint, 00-S-928). Therefore, the district court correctly ruled that res

judicata barred Mr. Dixon’s constitutional claims.

      The district court also accepted the magistrate’s recommendation that

defendants Sullivan, Johnson, and Backstreet, in their individual capacities, were


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entitled to qualified immunity. Qualified immunity shields public officials from

civil damages liability if their actions “did not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.” Pino v.

Higgs, 75 F.3d 1461, 1467 (10th Cir. 1996). Because Dixon had not asserted

facts to support a showing of the defendants’ deliberate indifference, which was

required to establish a violation of the Eighth or Fourteenth Amendment, he did

not show that the defendants violated any of his clearly established rights. Thus,

the district court properly granted these defendants qualified immunity.

      Lastly, a district court has the discretion to exercise supplemental

jurisdiction over state law claims. In this case, the district court declined to

exercise supplemental jurisdiction over Mr. Dixon’s state law claim, because it

had dismissed his federal claims. We find it did not abuse its discretion in doing

so. See 28 U.S.C. § 1367 (c)(3).

      For the above stated reasons, we AFFIRM the district court’s dismissal of

Mr. Dixon’s claim in its entirety. We deem this appeal to be frivolous, and

therefore DENY Mr. Dixon’s request for in forma pauperis status. As such, we

order Mr. Dixon to pay immediately his unpaid balance due.

      As a final matter, we DENY Appellees’ request for costs and fees

associated with responding to Mr. Dixon’s pro se Request for Admission, as




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Appellees’ response motion consisted of a one-page straightforward statement of

procedural grounds to strike.

                                     ENTERED FOR THE COURT


                                     David M. Ebel
                                     Circuit Judge




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