                                                              FILED
                                                  United States Court of Appeals
                   UNITED STATES COURT OF APPEALS         Tenth Circuit

                         FOR THE TENTH CIRCUIT                    February 13, 2019
                       _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
    TERRY MARGHEIM,

          Plaintiff - Appellant,
                                                        No. 18-1138
    v.                                     (D.C. No. 1:12-CV-01520-WJM-NYW)
                                                         (D. Colo.)
    KENNETH R. BUCK, Weld County
    D.A.; EMELA BULJKO, Weld
    County Deputy District Attorney;
    GREELEY POLICE CHIEF; JOHN
    BARBER; STEPHEN PERKINS;
    MR. ELLIS, unknown named
    employees of Greeley Police
    Department,

          Defendants - Appellees.
                      _________________________________

                          ORDER AND JUDGMENT *
                       _________________________________

Before BACHARACH, PHILLIPS, and EID, Circuit Judges.
               _________________________________

         This case stems from a suit by Mr. Terry Margheim against a district

attorney, a deputy district attorney, and various police officers. Mr.


*
     Oral argument would not materially aid our consideration of the
appeal, so we have decided the appeal based on the briefs. See Fed. R.
App. P. 34(a)(2); Tenth Cir. R. 34.1(G).

     This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our order and judgment may be cited if otherwise appropriate. See Fed.
R. App. P. 32.1(a); Tenth Cir. R. 32.1(A).
Margheim initially asserted claims for false arrest, false imprisonment,

supervisory liability, and municipal liability. The district court dismissed

these claims but allowed Mr. Margheim to amend the complaint by

asserting only a claim of malicious prosecution against the deputy district

attorney. In a prior appeal, we concluded that the deputy district attorney

was entitled to qualified immunity on the claim of malicious prosecution.

Given this conclusion, we remanded for the district court to dismiss the

claim against the deputy district attorney. The district court complied and

entered judgment for all of the defendants.

      Mr. Margheim then requested appointment of counsel and moved to

alter or amend the judgment. The district court declined to appoint counsel

and denied the motion to alter or amend the judgment. We affirm.

      On the request to appoint counsel, Mr. Margheim argued that he

needed an attorney to petition for a writ of certiorari from the United

States Supreme Court. The district court declined to appoint counsel, and

we review that ruling for an abuse of discretion. Rachel v. Troutt, 820 F.3d

390, 397 (10th Cir. 2016). In conducting this review, we consider the

district court’s reasoning. The court assumed that Mr. Margheim was

requesting an attorney to seek certiorari in his earlier appeal. For that

appeal, however, the time to seek certiorari had passed roughly seven

months before the district court denied his request. Given expiration of the

deadline, the district court’s reasoning was correct.

                                       2
      The defendants point out that Mr. Margheim might have been

referring to a petition for a writ of certiorari in the current appeal. If so,

however, a petition would have been premature when Mr. Margheim sought

counsel. It is only now (with this order and judgment) that there is a

decision for the Supreme Court to consider on certiorari review. So the

district court did not err in declining to appoint counsel.

      The court not only declined to appoint counsel but also denied the

motion to alter or amend the judgment, concluding that Mr. Margheim had

waited too long to reassert his claims for false arrest and false

imprisonment. We agree with the district court.

      For the claims of false arrest and false imprisonment, Mr. Margheim

included theories of supervisory and municipal liability. The district court

rejected these theories based on an absence of personal participation or

supervisory liability. Mr. Margheim then reasserted these claims through a

motion to alter or amend the judgment. The district court denied relief

based on the absence of a constitutional injury. We agree with the district

court’s reasoning.

      Mr. Margheim also insists that the district court should not have

dismissed the claim of malicious prosecution. 1 We need not decide the


1
      Mr. Margheim also contends that our court erred in the prior appeal.
But our panel is bound by the earlier panel decision. See, e.g., Vehicle Mkt.
Res., Inc. v. Mitchell Int’l, Inc., 839 F.3d 1251, 1256 (10th Cir. 2016)

                                        3
standard of review because Mr. Margheim’s argument would fail under any

standard. The district court dismissed this claim only because our court

had rejected Mr. Margheim’s argument in his earlier appeal. Our issuance

of the mandate in the prior appeal required the district court to dismiss this

claim. United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998). So

the district court did not err in dismissing the claim.

      Affirmed. 2


                                       Entered for the Court


                                       Robert E. Bacharach
                                       Circuit Judge




(“After an appeal, the decision of the appellate court establishes the law of
the case and ordinarily will be followed by both the trial court on remand
and the appellate court in any subsequent appeal.” (internal quotation
marks omitted)).
2
     We grant Mr. Margheim’s motion for leave to proceed in forma
pauperis.
                                       4
