                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         AUG 28 2002
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    COURTNEY J. VAN RIPER,

               Plaintiff - Appellant,

    v.                                                 No. 01-8088
                                                 (D.C. No. 00-CV-149-D)
    CORRECTIONAL MEDICAL                              (D. Wyoming)
    SERVICES, a Missouri corporation;
    JOHN COYLE, M.D.; DEBRA
    SWAN; BRENDA POWERS,
    individually,

               Defendants - Appellees,

         and

    JEFF DEISS,

               Defendant.


                            ORDER AND JUDGMENT          *




Before MURPHY , ANDERSON , and HARTZ , Circuit Judges.




*
       This order and judgment is not binding precedent, except under the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 and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff Courtney J. Van Riper, a prisoner of the State of Wyoming

proceeding pro se , filed this suit under 28 U.S.C. § 1983 against defendants,

asserting that they were deliberately indifferent to his serious medical needs,

denied him physician-prescribed medication, denied him necessary medical

treatment, and retaliated against him. The district court granted summary

judgment in favor of defendants and plaintiff appeals. We have jurisdiction under

28 U.S.C. § 1291, and affirm.


                              PROPOSED ABATEMENT

       Defendants have moved to abate the appeal on the basis that their liability

insurer, PHICO, was declared insolvent and is being liquidated by the State of

Pennsylvania. Defendants submit that the full faith and credit statute, 28 U.S.C.

§ 1738, requires this court to honor the February 1, 2002 order of the

Commonwealth Court of Pennsylvania purporting to stay all proceedings in which

PHICO has a duty to defend.

       We deny the request. PHICO is not a party to this appeal. It was fully

briefed at the time of the motion to abate and the generation of further attorney

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fees will be minimal. In any case, a state court simply has no power to enjoin an

action in federal court.   Baker by Thomas v. Gen. Motors Corp.       , 522 U.S. 222,

236 n.9 (1998). Although a federal court may very well decline to decide an

in rem action for property involved in ongoing state court insurance company

liquidation proceedings,    see United States v. Bank of N.Y. & Trust Co.     , 296 U.S.

463, 477-79 (1936), that is not the situation here. The liquidation of PHICO by

the State of Pennsylvania is   in rem . See id. at 475. This civil rights and medical

malpractice case is in personam . A decision in rem does not ordinarily bar a

subsequent proceeding      in personam . See Princess Lida v. Thompson , 305 U.S.

456, 466-67 (1939); Grimes v. Crown Life Ins. Co. , 857 F.2d 699, 701 n.2

(10th Cir. 1988).

       Full faith and credit requires “that a federal court must give to a state-court

judgment the same preclusive effect as would be given that judgment under

the law of the State in which the judgment was rendered.”       Migra v. Warren City

Sch. Dist. Bd. of Educ. , 465 U.S. 75, 81 (1984). But under Pennsylvania law,

res judicata requires identity of the causes of action, which does not exist here.

In re Iulo , 766 A.2d 335, 337 (Pa. 2001);    cf. Balent v. City of Wilkes-Barre   ,

669 A.2d 309, 315 (Pa. 1995) (holding that a distinction between an         in rem and

an in personam proceeding that is merely technical does not bar application of




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res judicata ). Therefore, full faith and credit does not require us to abate this

appeal in accordance with the state court’s order.

       Pennsylvania law provides for a ninety-day stay of “[a]ll proceedings in

which the insolvent insurer is party or is obligated to defend a party.” Pa. Stat.

Ann. tit. 40, § 991.1819(a). PHICO was declared insolvent on February 1, so the

ninety days have now passed. The state court’s order somewhat ambiguously

ordered a stay “to the extent provided by applicable law.”    See Aplees’ Mot. for

Stay, Attach. A at 10 ¶ 24. If the court meant the ninety-day statutory stay, then

the state court’s stay has already expired. In any event, defendants have not

argued that this court is required to defer to the state statute under the

McCarran-Ferguson Act, 15 U.S.C. § 1012(b), and we therefore need not consider

that possibility. In sum, a stay is neither jurisdictionally required nor prudentially

advisable inasmuch as PHICO is not a party to this case, but merely under a duty

to defend and, in light of the disposition on the merits, there are few, if any, new

fees to be generated.


                                        MERITS

       The magistrate judge denied plaintiff’s motion to file a second amended

and supplemental complaint on the basis that it was not filed in good faith and




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would be unduly prejudicial to defendants. Defendants   1
                                                            later moved for summary

judgment. The magistrate judge thoroughly reviewed the evidence detailing the

history of plaintiff’s medical treatment. The magistrate judge concluded that

plaintiff failed to show that defendants consciously disregarded a substantial risk

to his health or denied him physician-prescribed medication or treatment; that

defendants’ conduct deviated from a medically-established standard of care or

was obviously deficient; that he was ever in acute distress from any of his medical

impairments; or that defendants’ actions were the proximate cause of any damages

he claimed. The magistrate judge further determined that plaintiff failed to show

that defendants falsified his medical records or retaliated against him because he

refused to be admitted to the prison infirmary for a diagnostic test. The

magistrate judge concluded that there were no genuine issues of material fact to

be tried, and that defendants were entitled to summary judgment. In light of

plaintiff’s objections to the magistrate judge’s recommendation, the district court

thoroughly reviewed the report   de novo and adopted it. The court also affirmed

the decision of the magistrate judge not to allow plaintiff to file a second

amended and supplemental complaint. Accordingly, the court entered judgment

in favor of defendants.




1
      Defendant Jeff Deiss was dismissed by stipulation of the parties.

                                         -5-
       Plaintiff argues on appeal, first, that the district court erred in dismissing

his Eighth Amendment claims of deliberate indifference because his evidence

demonstrated a pervasive denial of prescribed medication, a denial of urgently

needed medical attention, and prolonged physical pain and suffering and possible

permanent physical injury. Next, plaintiff asserts that the district court erred in

rejecting as completely conclusory his claims of falsified medical records even

though defendants did not deny the claims or present any evidence to the contrary.

Finally, plaintiff argues that the district court abused its discretion by allowing

defendants to submit additional affidavits after moving for summary judgment,

but limiting his claims and evidence to the supplemental complaint.

       We review the grant of summary judgment         de novo , using the same

standard as that applied by the district court.     Whitesel v. Sengenberger , 222 F.3d

861, 867 (10th Cir. 2000). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c). We review the district court’s decision denying plaintiff leave to amend

his complaint for abuse of discretion.      See Lambertsen v. Utah Dep’t of Corr.   ,

79 F.3d 1024, 1029 (10th Cir. 1996).




                                              -6-
      We have carefully reviewed the parties’ materials in light of the record on

appeal. We are not persuaded by plaintiff’s claims of error, and affirm for

substantially the reasons stated in the magistrate judge’s thorough and

well-reasoned report and recommendation, as adopted by the district court.

      The motion to abate the appeal is denied. The judgment of the district

court is AFFIRMED.


                                                    Entered for the Court



                                                    Michael R. Murphy
                                                    Circuit Judge




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