Giron v. Johnson, 10th Cir. (2003)
Giron v. Johnson, 10th Cir. (2003)
FEB 25 2003
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
Coordinator; JERRY TAFOYA,
Deputy Corrections Secretary,
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.
No. 02-2063
(D.C. No. CIV-01-700 M/RLP)
(D. New Mexico)
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.
This order and judgment is not binding precedent, except under the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. Girons 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,
(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.,
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. Commr,
1993) (quotation omitted). The decision to take up questions for the first time on
appeal is left primarily to this courts 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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