                                                              F I L E D
                                                        United States Court of Appeals
                                                                Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                               FEB 25 2003
                          FOR THE TENTH CIRCUIT
                                                          PATRICK FISHER
                                                                    Clerk

MICHAEL GIRON,

            Plaintiff - Appellant,

v.

GARY E. JOHNSON, Governor of
New Mexico; DEPARTMENT OF
CORRECTIONS, NEW MEXICO;
ROBERT J. PERRY, Secretary of
Corrections; JOHN SHANKS, Director
of Adult Prisons; ELMER BUSTOS,
DOC, Classification Director; JEFF
SERNA, Interstate Compact                       No. 02-2063
Coordinator; JERRY TAFOYA,              (D.C. No. CIV-01-700 M/RLP)
Deputy Corrections Secretary,                 (D. New Mexico)

            Defendants - Appellees,

and

VIRGINIA DEPARTMENT OF
CORRECTIONS; RONALD
ANGELONE, Virginia Corrections
Director; STANLEY K. YOUNG,
Wallens Ridge State Prison Warden;
C O COCHRANE, WRSP,
Correctional Officer;
C O NECESSARY, WRSP,
Correctional Officer; JOHN DOES
#1-3, Virginia Corrections Officers,

            Defendants.
                            ORDER AND JUDGMENT            *




Before KELLY , McKAY , and O’BRIEN , 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff Michael Giron appeals the district court’s dismissal of his civil

rights complaint filed pursuant to 42 U.S.C. § 1983. Mr. Giron, a former New

Mexico state prisoner, sought damages on several claims stemming from his

transfer to a maximum security prison facility in Virginia. Mr. Giron failed to

serve defendants Virginia Department of Corrections, Angelone, Young,

Cochrane, Necessary, and three unknown Virginia corrections officers and those

defendants were subsequently dismissed. The remaining defendants filed an

answer, followed by five motions to dismiss Mr. Giron’s actions for failure to

state a claim under Fed. R. Civ. P. 12(b)(6). Mr. Giron, who was represented by



*
      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.

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counsel, failed to respond to the motions and the district court subsequently

dismissed Mr. Giron’s complaint with prejudice. After the court entered

judgment against him, Mr. Giron filed neither a motion to alter or amend the

judgment pursuant to Fed. Rule Civ. P. 59, nor a motion for relief from the

judgment pursuant to Fed. R. Civ. P. 60. Instead, Mr. Giron appealed directly to

this court. We review dismissals pursuant to Fed. R. Civ. P. 12(b)(6) de novo.

Stidham v. Peace Officer Standards & Training,        265 F.3d 1144, 1149

(10th Cir. 2001).

      For the first time on appeal, Mr. Giron raises several issues alleging

procedural irregularities in the filing and disposition of the motions to dismiss.

“Generally, an appellate court will not consider an issue raised for the first time

on appeal.” Tele-Communications, Inc. v. Comm’r,         104 F.3d 1229, 1232

(10th Cir. 1997). While we have recognized exceptions to this general rule,

those exceptions

      are rare and generally limited to cases where the jurisdiction of a
      court to hear a case is questioned, sovereign immunity is raised, or
      when the appellate court feels it must resolve a question of law to
      prevent a miscarriage of justice. The failure to raise the issue with
      the trial court precludes review except for the most manifest error.

Hicks v. Gates Rubber Co.,   928 F.2d 966, 970 (10th Cir. 1991) (citations

omitted); see also Lyons v. Jefferson Bank & Trust,     994 F.2d 716, 721 (10th Cir.

1993) (stating that this court “hear[s] issues for the first time on appeal only in


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the most unusual circumstances”). “The policies behind the general rule and its

narrow exceptions include respect for the [district] court, unfair surprise to the

other party, and the need for finality in litigation and conservation of judicial

resources.” Tele-Communications, Inc. v. Comm’r,       12 F.3d 1005, 1007 (10th Cir.

1993) (quotation omitted). The decision to take up questions for the first time on

appeal is left primarily to this court’s discretion, based on the facts of individual

cases. Singleton v. Wulff, 428 U.S. 106, 121 (1976).

      In the present case, Mr. Giron did not respond to defendants’ motions to

dismiss. Moreover, after the district court entered judgment against him,

Mr. Giron did not file any post-judgment motion to alert that court to his

allegations of error. Finally, in his brief on appeal Mr. Giron does not address the

appellate waiver issue and offers no reason why we should grant an exception to

the general rule in this case. After independently reviewing the record, as well as

the merits of the issues Mr. Giron seeks to raise on appeal, we see no basis for

such an exception and we exercise our discretion to decline consideration of those

allegations that should have been raised initially in the district court.




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     The judgment of the United States District Court for the District of

New Mexico is AFFIRMED.


                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge




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