Winkel v. Hammond , 601 F. App'x 754 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 4, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ROBERT W. WINKEL,
Plaintiff – Appellant,
v. No. 14-3191
(D.C. No. 5:14-CV-03032-SAC)
GEOFFERY HAMMOND, MD, Medical (D. Kan.)
Director, Larned State Hospital, in his
individual capacity; DILIP PATEL, MD,
Larned State Hospital, in his individual
capacity; JOHN DOE, MD, Larned State
Hospital, in his individual capacity, a/k/a
(FNU) Oleachea; JOHN DOES, at least six
unknown John Does, security and other
staff, Larned State Hospital, in their
individual capacities,
Defendants – Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
_________________________________
After examining the briefs and appellate record, this panel determined
unanimously that oral argument would not materially assist in 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This order and judgment is not binding precedent, except under the doctrines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. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appellant Robert Winkel, a state prisoner proceeding pro se and in forma
pauperis, filed a 28 U.S.C. § 1983 action with the United States District Court for the
District of Kansas against numerous medical personnel and staff at Larned State
Hospital. He alleges that defendants all played a role in involuntarily administering
medication to him to make him competent to stand trial, violating various
constitutional rights.
The district court examined Appellant’s claims and found them to be
duplicative of claims he raised in another action in the same court, Case No. 5:13-
CV-03103-SAC, Winkel v. Hammond, et al. The court dismissed the present action
as frivolous under 28 U.S.C. § 1915(e), and this appeal followed.
Appellant agrees this action is essentially identical to his first § 1983 case,
which he voluntarily dismissed without prejudice in September 2013. In February
2014, he filed a motion to reopen that case. While the motion was being considered
by the district court, he filed this second action. Appellant was apparently afraid the
district court would deny the motion to reopen the action which he voluntarily
dismissed in September 2013, and his time to refile the dismissed action would
elapse in the meantime.
We review a district court’s dismissal under 28 U.S.C. § 1915(e) for an abuse of
discretion. See Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997). After
examining the briefs and the record in this case, we agree it essentially duplicates claims
Appellant made in the earlier case filed in June 2013, which is currently pending review
on the merits after the district court granted Appellant’s motion to reopen. “Repetitious
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litigation of virtually identical causes of action may be dismissed under § 1915 as
frivolous or malicious.” McWilliams v. State of Colo., 121 F.3d 573, 574 (10th Cir.
1997) (internal quotation marks and brackets omitted).
We accordingly find no abuse of discretion in the district court’s decision to
dismiss Appellant’s duplicative action, regardless of his reason for filing it, and
AFFIRM the district court’s dismissal of this case. The district court granted
Appellant’s motion to proceed in forma pauperis on appeal, and we remind him of
his obligation to continue making partial payments until the entire filing fee has been
paid in full. Appellant’s “Motion to Compel” is DENIED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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