Ford v. Mischeviz , 68 F. App'x 877 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 5 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
LARRY L. FORD,
Plaintiff - Appellant,
v.
No. 03-1008
JENNIFER MISCHEVIZ, Nurse;
(D.C. No. 02-Z-1991)
JORJE JACAYO, P.A.; C.J.C.
(D. Colo.)
MEDICAL STAFF, EL PASO
COUNTY, CO.; COLORADO
DEPARTMENT OF CORRECTIONS,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before EBEL, HENRY, and HARTZ, Circuit Judges.
Larry L. Ford, a prisoner in the custody of the Colorado Department of
Corrections proceeding pro se, sued the defendants pursuant to 42 U.S.C. § 1983alleging that they violated his rights under the Eighth Amendment by refusing to
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order is not binding precedent, except under the doctrines of law of the case, res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; nevertheless, an order may be cited under the terms and conditions of 10th
Cir. R. 36.3.
provide him with medical treatment for his serious heart condition. He appeals
the dismissal of his case by the United States District Court for the District of
Colorado.
The district court dismissed the underlying case, Case No. 02-Z-1991,
without prejudice because the defendant had previously filed a then-pending
action asserting the same claims:
Plaintiff filed a previous action, Case No. 02-ES-1770, in which he
alleges the same cause of action as he asserts in the instant
complaint. Two of the Defendants named in Case No. 02-ES-1770
are also named in this case. Plaintiff may combine claims against
multiple Defendants in the same action. The Court, therefore, will
direct Plaintiff to combine the claims into one action and name all
defendants on one Complaint form in Case No. 02-ES-1770. The
Court will also dismiss this action.
Order & J. of Dismissal of Nov. 13, 2002, at 2. The court reiterated, in denying
Ford’s subsequent Motion to Reconsider, that Ford “has the opportunity to name
all defendants he desires to name in Case No. 02-ES-1770, as the Court has
directed him to amend that Complaint in that action and do just that.” Order Den.
Mot. to Reconsider of Dec. 27, 2002, at 3. Despite the district court’s repeated
instruction, Ford filed the instant appeal to challenge the dismissal of Case No.
02-Z-1991.
“As part of its general power to administer its docket, a district court may
stay or dismiss a suit that is duplicative of another federal court suit.” Curtis v.
Citibank, N.A., 226 F.3d 133, 138 (2nd Cir. 2000). The power “is meant to foster
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judicial economy and the comprehensive disposition of litigation. The doctrine is
also meant to protect parties from the vexation of concurrent litigation over the
same subject matter.” Id. (internal quotation marks and citations omitted). We
review a district court’s dismissal of a case as being duplicative of another case
pending before the court for abuse of discretion. See Serlin v. Arthur Anderson
& Co., 3 F.3d 221, 223 (6th Cir. 1993).
The district court did not abuse its discretion in dismissing the instant case.
“[G]enerally, a suit is duplicative if the claims, parties, and available relief do not
significantly differ between the two actions.” Id. (internal quotation marks and
citations omitted). The cause of action raised in the instant case is the same as
that raised in the other pending lawsuit, and several of the defendants overlap.
By dismissing the underlying case without prejudice and with direction to Ford to
amend the complaint in the pending suit to include all defendants he wishes to
name, the court has preserved Ford’s ability to litigate against all potential
defendants while moving the litigation toward the most comprehensive, efficient
resolution possible. This is sound management of the district court’s docket, not
an abuse of discretion.
We AFFIRM the district court’s dismissal of the complaint in Case No. 02-
Z-1991. Ford’s motion to proceed before this court without prepayment of fees is
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GRANTED. However, Ford is obligated to continue making partial payments of
the appellate filing fee until the entire fee has been paid.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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