F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         OCT 28 2003
                          FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

    NASRULLA KHAN,

              Plaintiff-Appellant,

    v.                                                  No. 01-4219
                                                 (D.C. No. 1:00-CV-114-B)
    GLENN J. MECHAM; ROCKY J.                            (D. Utah)
    FLUHART; JON GREINER;
    A.K. GREENWOOD; OGDEN CITY
    COUNCIL; OGDEN CITY
    CORPORATION; RALPH W.
    MITCHELL; GLEN V. HOLLEY;
    KENNETH J. ALFORD; GARTH B.
    DAY; RICK J. MAYER; JESSE M.
    GARCIA; ADELE SMITH,

              Defendants-Appellees.


                          ORDER AND JUDGMENT            *




Before SEYMOUR , PORFILIO , 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Plaintiff-appellant Nasrulla Khan appeals the dismissal of his 42 U.S.C.

§ 1983 action against the City of Ogden, Utah, certain City employees, and

members of the Ogden City Council for allegedly failing properly to investigate

and to prosecute Khan’s claims that he was the victim of harassing phone calls

and stalking. The harassing phone calls were limited to hang-ups, and the

evidence of stalking was based on Khan’s identification of the license plates of

cars parked around his apartment complex or traveling behind him on the street

and on Khan’s allegation that he was run off the street by an aggressive driver.

      The district court dismissed this case by adopting the conclusion of the

magistrate judge’s report and recommendation that Khan’s claims against the

City, its key employees, and members of its Council were barred by res judicata

because Khan could have included the defendants as parties in previous litigation.

Khan filed for sanctions below and has done so again on appeal. Defendants-

appellees filed for sanctions in the district court, but have not done so on appeal.

We affirm the district court’s decision and deny Khan’s motion for sanctions as

frivolous. We also sua sponte bar Khan from filing an appeal again on the same

subject matter.

      This case is Khan’s fifth separate appeal on exactly the same facts, but

against slightly different parties. In Khan v. Lucas, 33 Fed. Appx. 381 (10th Cir.

Feb. 6, 2002) (“Khan I”), cert. denied, 

(2002), we reviewed de novo


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the merits of Khan’s case against the City of Ogden and state prosecutors, and

we agreed that Khan had failed to state a cognizable claim under the Fourteenth

Amendment or in tort. 

The parties to the instant case note that Khan

attempted to amend his complaint in Khan I to include the current

defendants-appellees, but that Khan’s motion to amend was denied in Khan I as

futile. Aplt. Br. at 21; Aple. Br. at 2. When we reviewed Khan’s appeal in

Khan I, we found that the district court had not abused its discretion in denying

Khan’s motion to amend his complaint. 33 Fed. Appx. at 385.

      In Khan v. Thorley, 23 Fed. Appx. 978 (10th Cir. Dec. 21, 2001)

(“Khan II”), we upheld the dismissal of Khan’s similar case against federal

investigatory authorities on the ground of collateral estoppel. 

1 Khan

had argued, among other things, that collateral estoppel should not apply to bar

his claims against federal authorities in Khan II because those authorities had not

been parties to Khan I. 

In affirming the dismissal of Khan II on the

ground of collateral estoppel, we noted that the two cases nonetheless used the

same record and relied upon the same allegations. 

fact that the Tenth Circuit issued the    Khan II opinion before the Khan I
opinion appears to have been a quirk of filing. Indeed, the     Khan II opinion notes
in a footnote that the validity of its reasoning was not affected by the fact that the
appeal in Khan I was still pending. Khan II , 23 Fed. Appx. at 981 n.2.

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       Khan also filed two earlier appeals that the Tenth Circuit dismissed for

procedural reasons. In re: Khan, No. 00-4187, was dismissed in March of 1991

for failure to pay the filing fee. In that case, Khan had served the district court in

Utah to compel action through petition for a writ of mandamus. A preliminary

version of Khan II (Khan v. Thorley, No. 01-4246) was dismissed in May of 2002

for failure to meet a filing deadline.

       We now AFFIRM the dismissal of the case at bar for substantially the

reason stated by the magistrate judge and adopted by the district court. Because

Khan litigated the denial of his motion to amend his complaint to include the

current defendants-appellees in his appeal of     Khan I , he is precluded from

litigating the same issue again. We DENY Khan’s motion for sanctions on appeal

as frivolous. Finally,   we sua sponte bar Khan from filing additional appeals

regarding the same subject matter as in    Khan I , Khan II , and the instant case, and

warn Khan that he will be subject to sanctions in the future should he file an

appeal in the Tenth Circuit regarding this subject matter.    See generally

Christensen v. Ward , 

, 1469 (10th Cir. 1990) (noting that this court

has the power “to impose sanctions such as costs, attorneys fees and double costs




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for the filing of frivolous appeals, Fed. R. App. P. 38, and the inherent power to

impose sanctions that are necessary to regulate the docket, promote judicial

efficiency, and . . . to deter frivolous filings.”).


                                                       Entered for the Court



                                                       Stephanie K. Seymour
                                                       Circuit Judge




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