08-3833-pr
Lopez v. Ferguson

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document
filed with this court, a party must cite either the Federal Appendix or an electronic database
(with the notation “summary order”). A party citing a summary order must serve a copy of it
on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 19th day of January, two thousand ten.

PRESENT:
                     JOSÉ A. CABRANES,
                     ROSEMARY S. POOLER,
                     GERARD E. LYNCH ,
                                  Circuit Judges,

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JOSE HECTOR LOPEZ ,

                     Plaintiff-Appellant,

                     v.                                                    08-3833-pr

COMMISSIONER JAMES FERGUSON , COMMISSIONER
JENNIFER ARENA , NYS EXECUTIVE DEPARTMENT,
“DEPARTMENT HEAD ,” NYS EXECUTIVE DEPARTMENT
- DIVISION OF PAROLE ,

                     Defendants-Appellees.

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FOR APPELLANT:                            Jose Hector Lopez, pro se, Staten Island, NY.

FOR APPELLEES:                            Carol Fischer, Assistant Solicitor General, for Andrew M.
                                          Cuomo, Attorney General of the State of New York, New
                                          York, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Allyne R. Ross, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court is AFFIRMED.

        Plaintiff-appellant Jose Hector Lopez, pro se, appeals from the judgment of the District Court
dismissing without prejudice Lopez’s action brought under 42 U.S.C. §§ 1983, 1985(3), and 1986
because his action was duplicative of another action pending in federal court. On appeal, Lopez
argues that the District Court erred in dismissing his claim (1) because the issues presented in his
case differ from those presented in Graziano v. Pataki, S.D.N.Y. 06-cv-0480 and (2) because the
District Court failed to construe his complaint as asserting a due process claim. He also raises
several arguments for the first time on appeal—namely, (1) that his due process rights were violated
because defendant Arena was not qualified to serve as a Commissioner; (2) his case differs from
Graziano because he has an outstanding order of deportation; and (3) defendants violated his equal
protection and due process rights by denying his requests to be deported. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

         We review a district court’s dismissal of claims as duplicative for abuse of discretion. See
Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000) (“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.”
(citing Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)); cf. Sims v. Blot, 534
F.3d 117, 132 (2d Cir. 2008) (“A district court has abused its discretion if it based its ruling on an
erroneous view of the law or on a clearly erroneous assessment of the evidence or rendered a
decision that cannot be located within the range of permissible decisions.” (internal citations,
alterations, and quotation marks omitted)).

        We have specifically recognized that “plaintiffs have no right to maintain two actions on the
same subject in the same court, against the same defendant at the same time.” Curtis, 226 F.3d at
138. Here, the District Court properly dismissed Lopez’s claims against the “department head” of
the New York State Executive Department, Division of Parole (“DOP”) because those allegations
duplicated claims—including the due process claim that Lopez contends the District Court failed to
recognize—that are being raised in Graziano, a separate class action against the DOP and its
commissioner, and Lopez falls within the class certified in that case.


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        Defendants James Ferguson and Jennifer Arena, however, are not named as defendants in
Graziano. Nevertheless, the suits are duplicative because the suit involves essentially the same factual
background and legal questions as those presented in Graziano and Ferguson and Arena’s interests
are adequately represented by the defendants in Graziano. See Alpert’s Newspaper Delivery Inc. v. New
York Times Co., 876 F.2d 266, 270 (2d Cir. 1989) (holding that “one whose interests were adequately
represented by another vested with the authority of representation is bound by the judgment, even
though the first party was not formally a party to the litigation”). We conclude that the Department
Head of the DOP can adequately represent the interests of Ferguson and Arena, who are
Commissioners of the DOP, and thus, that the District Court did not err in dismissing Lopez’s
claims without prejudice.

       We decline to consider issues that were not presented to the District Court. In re Nortel
Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008).

                                          CONCLUSION

        For the reasons stated above, the judgment of the District Court is AFFIRMED.



                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk

                                                By:__________________________




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