* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata , and collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 28 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

COURTNEY J. VAN RIPER,

Plaintiff - Appellant,

v. CORRECTIONAL MEDICAL SERVICES, a Missouri corporation; JOHN COYLE, M.D.; DEBRA SWAN; BRENDA POWERS, individually, Defendants - Appellees, and JEFF DEISS,

Defendant. No. 01-8088 (D.C. No. 00-CV-149-D) (D. Wyoming)

ORDER AND JUDGMENT *

Before MURPHY , ANDERSON , and HARTZ , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he 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 de fendants, asserting that they were deliberately indifferent t o his serious medical needs, denied him physician-prescribed medication, denied him necessary medical treatment, and retaliated against him. The distric t court granted summary judgment in favor of defendants and plaintiff appea ls. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

PROPOSED ABATEMENT Defendants have moved to abate the appeal on the ba sis that their liability insurer, PHICO, was declared insolvent and is beingliquidated 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 st ay 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-3-

fees will be minimal. In any case, a state court s imply 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 giv en 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 l aw, res judicata requires identity of the causes of action, which d oes 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-4-

res judicata ). Therefore, full faith and credit does not requi re 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 obligate d to defend a party.” Pa. Stat. Ann. tit. 40, § 991.1819(a). PHICO was declared in solvent on February 1, so the ninety days have now passed. The state court’s ord er 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 anyevent, 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 jurisd ictionally 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 m erits, there are few, if any, new fees to be generated.

MERITS The magistrate judge denied plaintiff’s motion to f ile a second amended and supplemental complaint on the basis that it was not filed in good faith and1 Defendant Jeff Deiss was dismissed by stipulation o f the parties. -5- would be unduly prejudicial to defendants. Defendants 1 later moved for summary judgment. The magistrate judge thoroughly reviewedthe evidence detailing the history of plaintiff’s medical treatment. The magi strate judge concluded that plaintiff failed to show that defendants consciousl y disregarded a substantial risk to his health or denied him physician-prescribed me dication or treatment; that defendants’ conduct deviated from a medically-estab lished 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 p roximate cause of any damages he claimed. The magistrate judge further determine d that plaintiff failed to show that defendants falsified his medical records or re taliated against him because he refused to be admitted to the prison infirmary for a diagnostic test. The magistrate judge concluded that there were no genui ne issues of material fact to be tried, and that defendants were entitled to summ ary judgment. In light of plaintiff’s objections to the magistrate judge’s re commendation, 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 p laintiff to file a second amended and supplemental complaint. Accordingly, the court entered judgment in favor of defendants.-6-

Plaintiff argues on appeal, first, that the distric t court erred in dismissing his Eighth Amendment claims of deliberate indiffere nce because his evidence demonstrated a pervasive denial of prescribed medic ation, a denial of urgently needed medical attention, and prolonged physical pa in and suffering and possible permanent physical injury. Next, plaintiff asserts that the district court erred in rejecting as completely conclusory his claims of fa lsified 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 mo ving for summary judgment, but limiting his claims and evidence to the supplem ental 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 app ropriate “if the pleadings, depositions, answers to interrogatories, and admiss ions on file, together with the affidavits, if any, show that there is no genuine i ssue 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).-7-

We have carefully reviewed the parties’ materials i n 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 adoptedby the district court. The motion to abate the appeal is denied. The judg ment of the district court is AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge