[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 99-2163

VICTOR DAVILA,

Plaintiff, Appellant,

v.

MICHAEL T. MALONEY, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Torruella, Chief Judge, Boudin and Lipez, Circuit Judges.

Victor Davila on Memorandum pro se. Nancy Ankers White, Special Assistant Attorney General, and Joel J. Berner, Counsel, Department of Correction, on Memorandum of Law for appellees.

December 27, 2000 Per Curiam. Appellant Victor Davila presently is

incarcerated at M.C.I. Cedar Junction in Massachusetts. He

filed the instant civil rights action against various prison

officials. The district court granted the defendants'

motion to dismiss the case and appellant now appeals.

As its first reason for dismissal, the court held

that there currently was pending a class-action suit in the

Massachusetts Suffolk Superior Court which concerned

substantially the same issues appellant was raising in the

federal action and in which appellant was a class member.

Although the district court did not cite to any authority in

relying on the pending state case as a reason not to

consider appellant's claims, the Supreme Court's decision in

Colorado River Water Conservation Dist. v. United States,

(1976), covers this situation.

In Colorado River . . . the Supreme Court listed various circumstances under which a federal district court might decline to exercise jurisdiction based on the pendency of a state action arising out of the same transaction. The Colorado River approach was premised upon "consideration of 'wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.'" Gonzalez v. Cruz,

(1st Cir. 1991) (citation

omitted).

Based on the particular circumstances of this case,

we think that the deferral of federal jurisdiction under

Colorado River is warranted. The federal case is

duplicative of the state case, appellant essentially having

conceded that he is a member of the plaintiff class of

prisoners in the state suit and that the suit concerns

substantially the same issues as in the federal action. See

Congress Credit Corp. v. AJC Int'l, Inc.,

, 689-

90 (1st Cir. 1994). The state court was the first to obtain

jurisdiction and the litigation there has progressed much

further. See Cruz v. Melecio,

(1st Cir.

2000). Finally, there is no question that the state court

is adequate to protect appellant's rights. Indeed,

appellant basically was asking for a deferral of federal

court jurisdiction, as per Colorado River, when he requested

a stay due to the pendency of the state court suit.

In closing, we note that, in referring to the

pending state case and opining that the issues in that case

were the same as the issues in the federal case, the

district court specifically declined to offer any views

concerning the merits of these issues. Because we agree

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the state case and because we find Colorado River

applicable, we emphasize that we, too, express no view on

the merits of appellant's claims or on the second part of

the district court's decision. In this second part, the

district court, in paragraphs labeled A through D, concluded

that if appellant were attempting to raise any claims

separate from the ones involved in the state litigation, he

had failed to state a claim. Appellant has not adequately

identified any separate claims, so we need not pass on

paragraphs A through D.

Based on the foregoing, the order dismissing

appellant's action is vacated and the case is remanded for

reinstatement and for issuance of a stay of the proceedings

pending the disposition of the prisoner-plaintiffs' case

against the defendants in the state court. The district

court is, of course, free to vacate the stay, or to issue

other orders in the event the circumstances change.

So Ordered.

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