Darwynn Lemonte Barwick, Plaintiff-appellant, v. City of Aurora, Animal Car Division, Defendant-appellee, 39 F.3d 1191 (10th Cir. 1994)

ORDER AND JUDGMENT¹ 

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); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Darwynn L. Barwick's motion to proceed on appeal without prepayment of costs or fees is denied. The issues in this case are res judicata having been considered by this court in Barwick v. City of Aurora, No. 93-1140 (10th Cir. Feb. 22, 1994), affirming the decision of the district court on the merits. The district court's repeated refusal to revive the lawsuit below based upon motions filed under Fed. R. Civ. P. 60(b) are so clearly within the court's discretion under the circumstances of this case that an appeal therefrom is frivolous; and, as we stated in our previous opinion, we will not entertain new arguments or attempts to introduce new evidence on appeal. We conclude that this appeal is legally frivolous. Accordingly, the appeal is DISMISSED. The mandate shall issue forthwith.