*

 This order and judgment is not binding precedent, except under the doctrines of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.

UNITED STATES COURT OF APPEALS

Filed 7/25/96

TENTH CIRCUIT

STEPHEN D. HARRIS,

Plaintiff-Appellant,

 v.

CORRECTION MANAGEMENT

AFFILIATES, INC., CORRECTIONAL

SERVICES GROUP, INC., HINTON

ECONOMIC DEVELOPMENT

AUTHORITY, GREAT PLAINS

CORRECTIONAL FACILITY, HINTON

TOWN COUNCIL, JIMMY SMITH,

TOM C. MARTIN, LES HARMON,

ROBERT B. EZELL, V. BOMHOFF,

MAX WILEY, JOHN DOES, Members of

the Great Plains Correctional Facility Riot

Squad on August 23, 1994, and JOHN

DOES, Supervisors of the Great Plains

Correctional Facility Riot Squad on

August 23, 1994,

Defendants-Appellees.

No. 96-6133

(D.C. No. CIV-95-1499-C)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.
2

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. The case is therefore ordered

submitted without oral argument.

Stephen Harris, Lonnie Davis, and Gregory Sullivan filed this pro se class action

on behalf of themselves and other prisoners at Great Plains Correctional Facility in

Hinton, Oklahoma, as a result of events that occurred on August 23, 1994, when guards

allegedly used tear gas to quiet a perceived disturbance. Plaintiffs asserted claims under

42 U.S.C. § 1983 as well as negligence-based claims.

The magistrate court found plaintiffs had previously filed an action involving

essentially the same factual allegations, the same legal issues, and the same defendants,

and since a Martinez report had been ordered in the other case and it was filed first, this

action should be dismissed. The magistrate court recommended that plaintiffs be allowed

to amend the other action to include additional causes of action raised in this case. The

court found a class action was inappropriate. Fed. R. Civ. P. 23(a)(4) provides that "the

representative parties will fairly and adequately protect the interests of the class." Courts

are reluctant to certify a class represented by a pro se litigant because a layman

representing himself is considered "to be clearly too limited to allow him to risk the rights

of others." Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975).

Plaintiffs filed objections to the magistrate court's recommendation and filed an

application for class certification. The district court agreed with the recommendation of

the magistrate court and dismissed because of the pendency of the prior action and in the

interest of judicial economy. The court ordered that plaintiffs could amend their
3

complaint in the other action to assert additional causes of action asserted in this action. 

Plaintiffs moved for reconsideration, asserting the two cases should have been

consolidated. The court denied reconsideration, finding the motion asserted no law or

fact not previously considered.

On appeal, Harris contends the district court erred in stating in its denial of the

motion to reconsider that it had reviewed the consolidation issue when nothing had been

mentioned in its previous order of dismissal, and that consolidation was the best remedy. 

Harris relies on Walton v. Eaton Corporation, 563 F.2d 66 (6th Cir. 1977). In Walton, the

Sixth Circuit held plaintiffs had no right to maintain two separate actions involving the

same subject matter, at the same time, in the same court, and against the same defendants. 

The court stated that when the district court became aware of the two actions, it could

have dismissed the second complaint without prejudice, or could have stayed proceedings

in the second action until judgment was entered in the first action. The district court

consolidated the two actions. The Sixth Circuit found that consolidation may well be the

most administratively efficient procedure, but held filing of the second complaint and

consolidation with the first complaint must be regarded as no more than an amendment of

the first complaint. Id. at 70-71.

We have carefully examined Harris' appellate brief, all of the pleadings, and the

entire record on appeal and find that the district court did not err in dismissing this action. 

The district court specifically stated: "Prior to the filing of defendants' response in [the

other case], plaintiffs may amend their complaint to assert any causes of action asserted

here but not there. After the filing of defendants' response, plaintiffs may seek the Court's

permission to amend their complaint." RI, Doc. 11 at 3. Harris contends because the
4

district court denied the request to add claims for declaratory and injunctive relief in the

other action, he was prejudiced. This is an issue to be raised on appeal in that matter and

not in the present action.

AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe

Circuit Judge