98-1288 -- Kratzer v. First Healthcare Corp. -- 03/23/1999

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

WENDY A. KRATZER,

Plaintiff-Appellant,

FIRST HEALTHCARE CORPORATION; VENCOR/HILLHAVEN CORPORATION; ILIFF CARE CENTER,

Defendants-Appellees.

No. 98-1288

(D.C. No. 97-B-595)

(D. Colo.)

ORDER AND JUDGMENT^(*)

Before ANDERSON, KELLY, and BRISCOE, 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 case is before the court on plaintiff's pro se motion to proceed on appeal in forma pauperis. The district court granted summary judgment to defendants in plaintiff's wrongful termination action and denied plaintiff's cross motion for summary judgment. In granting defendants' motion, the district court concluded that (1) plaintiff was properly terminated, irrespective of whether defendants had in place progressive disciplinary policies; (2) plaintiff failed to identify the type of illegal discrimination she allegedly suffered; and (3) plaintiff failed to present a prima facie case of retaliation for engaging in protected conduct. In light of this conclusion, the district court denied plaintiff leave to proceed on appeal in forma pauperis.

This court has reviewed plaintiff's appellate pleadings and the record on appeal. After that review, this court is convinced that the district court did not err in granting summary judgment to defendants. Plaintiff's attempt to raise new legal theories on appeal or to present new factual allegations that were not before the district court is of no avail. See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992) (holding that this court will not consider an issue on appeal that was not raised in the district court).

Accordingly, plaintiff's motion for leave to proceed on appeal in forma pauperis is DENIED, and defendants' motion to dismiss this appeal is hereby GRANTED. Plaintiff's "Petition for Rehearing" is construed as a motion for reconsideration of this court's order referring defendants' motion to dismiss to the merits panel and is DENIED. The mandate shall issue forthwith.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

FOOTNOTES
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^*. 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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