Brian Mcclellan, Plaintiff-appellant, v. Gary Johnson, Governor; Correctional Medical Services Inc.;karl L. Sanniks, Secretary of Corrections; John Shanks,warden of Central Nm Correctional Center; Central Newmexico Correctional Facility, Medical Staff, Defendants-appellees, 61 F.3d 916 (10th Cir. 1995)

ORDER AND JUDGMENT¹ 

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); 10th Cir. R. 34.1.9. Therefore, the case is ordered submitted without oral argument.

Petitioner-Appellant Brian McClellan ("McClellan") filed this action pursuant to 42 U.S.C.1983 to obtain injunctive relief for the inadequate medical attention he alleges he receives²  in violation of his constitutional rights at the Central New Mexico Correctional Facility where he is incarcerated. The district court dismissed the action sua sponte, ruling that the action was barred by an ongoing class action and consent decree governing conditions in New Mexico's prisons. The court then referred McClellan's factual allegations to the special master appointed according to the consent decree.³  Following our prior decision of Facteau v. Sullivan, 843 F.2d 1318 (10th Cir. 1988), we hold that the district court's order is not final or appealable and dismiss the appeal.

In Facteau, an inmate in a New Mexico prison brought a civil rights action challenging the conditions of his incarceration, and the district court dismissed the action as barred by the ongoing class action and consent decree of Duran v. Anaya, No. 77-721 (D.N.M. July 17, 1980), as modified by Duran v. King, No. 77-721 (D.N.M. March 15, 1984).⁴  We interpreted the 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." Facteau, 843 F.2d at 1318. Accordingly, we ruled that the order effecting the transfer was not final or appealable, explaining that if plaintiff's claims fell within the Duran litigation his claims would be decided as part of that ongoing action, and that if his claims fell outside the scope of Duran his individual civil rights suit could be refiled or transferred back to the original district court and reinstated. Id. at 1319-20.

The circumstances of the instant action mirror those in Facteau. Accordingly, we treat this dismissal as one without prejudice to refile in the event that Plaintiff's claims are not considered in Duran v. King, No. 77-721 (D.N.M. March 15, 1984). McClellan's appeal is DISMISSED. The mandate shall issue forthwith.