Plummer v. McDermott et al

Filing 66

ORDER dismissing without prejudice 13-cv-02613-BNB by Judge Christine M. Arguello on 10/16/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02613-BNB
RONALD PLUMMER,
Plaintiff,
v.
LISA MCDERMOTT,
DAVID ALLRED,
BRAD CINK, and
JOHN DOE, Medical Trip Coordinator,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Ronald Plummer, initiated this action by submitting pro se a Prisoner
Complaint. He has been granted leave to proceed in forma pauperis under 28 U.S.C.
§ 1915.
The Court must construe Mr. Plummer’s filings liberally because he is
representing himself. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the
pro se litigant’s advocate. Hall, 935 F.2d at 1110. For the reasons stated below, the
Court will dismiss this action without prejudice.
On September 25, 2013, Magistrate Judge Boyd N. Boland issued an order to
directing Mr. Plummer to show cause, in writing and within thirty (30 days), why the
instant action should not be dismissed without prejudice as duplicative of the claims
Plaintiff asserts in Ronald Plummer v. McDermott, et al., Civil Action No. 13-cv-00440CMA-MJW, against the same defendants.

“[G]enerally, a suit is duplicative if the claims, parties, and available relief do not
significantly differ between the two actions.” Park v. TD Ameritrade Trust Co., Inc., No.
11-1157, 461 F. App’x 753, 755 (10th Cir. Feb. 14, 2012) (unpublished) (quoting Serlin
v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir.1993)) (internal quotation marks and
citation omitted). A duplicative suit may be dismissed for reasons of “wise judicial
administration.” Serlin, 3 F.3d at 223 (quoting Ridge Gold Standard Liquors v. Joseph E.
Seagram, 572 F. Supp. 1210, 1213 (N.D. Ill. 1983) (citing Colorado River Water
Conservation District v. United States, 424 U.S. 800, 817 (1976)); Curtis v. Citibank,
N.A., 226 F.3d 133, 138 (2d Cir. 2000) (district court may dismiss a suit that is
duplicative of another federal court suit); accord Williams v. Madden, Case No. 00-1130,
2001 WL 661086 at *1 and n.1 (10th Cir. June 13, 2001) (stating that the court has the
authority to dismiss “repetitious litigation reasserting virtually identical causes of
action”).
The Prisoner Complaints in the two actions assert identical claims against
Defendants McDermott, Allred, and Cink under Bivens alleging the denial of adequate
medical care in violation of Plaintiff’s Eighth Amendment right. Furthermore, the
Prisoner Complaints seek identical remedies. Although the Prisoner Complaint in this
action includes a claim against an additional Defendant, John Doe Medical Trip
Coordinator, and some related factual allegations that are not alleged in Civil Action No.
13-cv-00440-CMA-MJW, these minor differences are not a sufficient basis to maintain
two separate suits.
Mr. Plummer filed a “Motion to Show Cause” (response to the order to show
cause) [Doc. # 7] on October 11, 2013. In the response, Plaintiff explains that he filed
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this action because he failed to exhaust his administrative remedies before filing Civil
Action No. 13-cv-00440-CMA-MJW, and he was attempting to protect his rights as he
understood them under Steele v. United States Bureau of Prisons, 355 F.3d 1204, 1213
(10th Cir. 2003) (recognizing that prisoner who fails to exhaust administrative remedies
prior to filing suit may reinstitute the action, upon completion of the exhaustion process)
(internal citation omitted), over-ruled on other grounds by Jones v. Bock, 459 U.S. 199
(2007). The defendants in 13-cv-00440-CMA-MJW have moved for summary judgment
on the ground that Mr. Plummer failed to exhaust administrative remedies before
initiating the Bivens suit. [See 13-cv-00440-CMA-MJW, at # 40]. It appears that Plaintiff
completed the exhaustion procedure approximately one month after filing. [Id., Doc. #
48, at 3]. The Court has not yet ruled on the defendants’ dispositive motion.
The Court finds that the instant action should be dismissed in the interest of “wise
judicial administration.” Serlin, 3 F.3d at 223. Mr. Plummer concedes that this case is
duplicative of Civil Action No. 13-cv-00440-CMA-MJW. The fact that 13-cv-00440CMA-MJW may ultimately be dismissed for Plaintiff’s failure to exhaust administrative
remedies does not warrant the maintenance of two nearly identical actions. Moreover,
the Court notes that the defendants in 13-cv-00440-CMA-MJW have filed a motion to
dismiss, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), on grounds other than
exhaustion [id., Doc. # 54].
Mr. Plummer’s remedy is to await the outcome of 13-cv-00440-CMA-MJW. If the
action is dismissed without prejudice, Mr. Plummer may file a new civil suit at that time.
There is no significant risk that the applicable two-year statute of limitations will bar his
claims upon refiling because the acts he complains of began in October 2012. [See
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13-cv-00440-CMA-MJW, Doc. # 1, at 4]. See Indus. Constructors Corp. v. U.S. Bureau
of Reclamation, 15 F.3d 963, 968 (10th Cir.1994) (holding that Bivens claims are
“subject to the statute of limitations of the general personal injury statute in the state
where the action arose.”); COLO. REV. STAT. § 13-80-102 (2013) (providing for a twoyear statute of limitations for personal injury actions).
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status
will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Plummer files a notice of appeal he must also pay the full $455 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that this action is DISMISSED WITHOUT PREJUDICE as duplicative
of Action No. 13-cv-00440-CMA-MJW. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. Mr. Plummer may file a motion in the Tenth Circuit. It is

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FURTHER ORDERED that the clerk of the Court file a copy of this Order in
Ronald Plummer v. McDermott, et al., Civil Action No. 13-cv-00440-CMA-MJW .
DATED at Denver, Colorado, this

16th

day of

October

BY THE COURT:

s/Christine M. Arguello
CHRISTINE M. ARGUELLO,
United States District Judge, for
LEWIS T. BABCOCK, Senior Judge
United States District Court

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, 2013.