Jose Hector LOPEZ, Plaintiff-Appellant, v. Commissioner James FERGUSON, Commissioner Jennifer Arena, NYS Executive Department, "Department Head," NYS Executive Department-Division of Parole, Defendants-Appellees, 361 F. App'x 225

SUMMARY ORDER 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, 96 S.Ct. 1236, 47 L.Ed.2d 483 (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. 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.