843 F2d 1318 Facteau v. E Sullivan Pnm Pnm

843 F.2d 1318

Arthur R. FACTEAU, Plaintiff-Appellant,
George E. SULLIVAN, Individually and in his official
capacity as P.N.M. Warden; Wilfred Romero,
Individually and in his official
capacity as Maj. P.N.M., North

No. 87-1473.

United States Court of Appeals,
Tenth Circuit.

April 8, 1988.

Arthur R. Facteau, pro se.

William McEuen, Asst. Atty. Gen. (Hal Stratton, Atty. Gen., State of N.M., with him on brief), Santa Fe, N.M., for defendants-appellees.

Before MOORE and TACHA, Circuit Judges, and BRIMMER, Chief District Judge.*


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After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.8. The cause is therefore ordered submitted without oral argument.


This is an appeal from an order of the United States District Court for the District of New Mexico dismissing plaintiff's prison civil rights suit as barred by an ongoing class action over conditions at the same prison, Duran v. Anaya, No. 77-721 (D.N.M.), but referring plaintiff's allegations and forwarding his pleadings to the special master appointed in the latter. We construe the district court's order as a dismissal without prejudice to refiling in the event plaintiff's claims are rejected as outside the scope of the Duran class action. See generally Herron v. Beck, 693 F.2d 125, 127 (11th Cir.1982); Goff v. Menke, 672 F.2d 702, 704-05 (8th Cir.1982).


The Duran class action was commenced in 1978 on behalf of all persons confined at the New Mexico State Penitentiary in Santa Fe, generally challenging the conditions of confinement there. On July 17, 1980, the Duran district court entered an order approving a consent decree that, by its terms, applied to all present and future inmates "incarcerated in the Penitentiary of New Mexico at Santa Fe or at any maximum, close, or medium security facility open for operation by the State of New Mexico after June 12, 1980." That consent order, along with the attached policy statements and previously filed partial consent decrees, reflected the parties' settlement of the disputes raised in Duran, though the district court expressly retained jurisdiction "for such time as is necessary to enforce or modify this Order and settlement with, if necessary, all appropriate orders including contempt sanctions."


Issues relating to the scope, effect, and enforcement of the consent order were later clarified by the district court in an order entered March 15, 1984. By the latter, the district court found that the Fed.R.Civ.P. 23 requirements of class definition, notice, and adequacy of representation had been satisfied and, accordingly, held its consent order to be binding on all members of the class, thus precluding collateral actions for injunctive relief relating to issues resolved therein. The March 15 order also refers to the previous appointment of a special master "to assist the Court in monitoring the state of defendant's compliance with all remedial orders," whose duties are "to observe, monitor, find facts, report or testify as to his findings, and make recommendations to the court concerning steps that should be taken to achieve compliance." The district court went on to state that all documents subsequently filed by class members seeking equitable relief pursuant to 42 U.S.C. Sec. 1983 for matters covered by the consent order would be forwarded to the special master in Duran for his initial consideration. If such documents were pleadings giving rise to separate lawsuits, those individual suits were to be dismissed in favor of the enforcement procedure already in place in Duran.


Plaintiff commenced the instant Sec. 1983 action for injunctive relief on February 20, 1987, seeking modification of present policy at the New Mexico State Penitentiary regarding body cavity searches. The case was promptly disposed of five days later in accordance with the orders entered in Duran discussed above. Specifically, the district court referred the factual allegations set forth in plaintiff's complaint to the special master and concluded:


It is ordered, adjudged and decreed that the above-captioned civil action is dismissed.


It is further ordered that the Clerk of this court shall forward forthwith all documents filed by the plaintiff in this civil action as described in the Court's Order of March 15, 1984, in Duran v. Anaya, No. 77-0721 JB.

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On appeal plaintiff contends that his action should not have been dismissed because body cavity searches are not covered by the Duran consent decree. Defendants counter by arguing that, whatever the merit in plaintiff's position on the scope of Duran, the district court simply directed plaintiff to the appropriate forum for resolution of the matter, and the order effecting that transfer is neither final nor appealable, citing In re Dalton, 733 F.2d 710, 714-15 (10th Cir.1984), cert. dismissed, 469 U.S. 1185, 105 S.Ct. 947, 83 L.Ed.2d 959 (1985) (order transferring venue of an action, even if the transfer is to a district in another circuit, is interlocutory and unappealable except by certification), and Jesko v. United States, 713 F.2d 565, 567-68 (10th Cir.1983) (order transferring action from district court to Court of Claims is interlocutory and unappealable). We agree, although we note that the instant order, which contemplates not only the transfer of plaintiff's claims but their consolidation with those of the Duran class and the formal dismissal of his independent lawsuit, presents a more complicated procedural situation than either Dalton or Jesko.


The critical determination is whether plaintiff has been effectively excluded from federal court under the present circumstances. See Pioneer Properties, Inc. v. Martin, 776 F.2d 888, 891 (10th Cir.1985), discussing Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 10-11, 103 S.Ct. 927, 933-34, 74 L.Ed.2d 765 (1983). We believe he has not. If plaintiff's allegations fall within the scope of the Duran litigation, he will have his claim decided by the Duran district court; if plaintiff's allegations fall outside the parameters of Duran, he may be transferred back to the original transferor court for reinstatement of his suit or he may simply refile on his own. In either case, plaintiff will have his day in federal district court, with the opportunity then to appeal, if necessary.


Accordingly, plaintiff's appeal is DISMISSED.


Honorable Clarence A. Brimmer, Chief Judge, United States District Court for the District of Wyoming, sitting by designation