Zavala v. Rios et al

Filing 55

ORDER Consolidating Action with Case Number 1:09-cv-00679-MJS (PC) and Closing Case, (2) Requiring Plaintiff to File Motion Seeking Leave to Amend and Proposed Sixth Amended Complaint in 1:09-cv-00679-MJS(PC), and (3) Directing Clerk of Court to File and Serve Order Both Actions, signed by Magistrate Judge Sheila K. Oberto on 2/13/13. CASE CLOSED.(Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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RAUL SANCHEZ ZAVALA,

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CASE NO. 1:12-cv-00930-SKO (PC)

Plaintiff,

ORDER (1) CONSOLIDATING ACTION
WITH CASE NUMBER 1:09-cv-00679-MJS
(PC) AND CLOSING CASE, (2) REQUIRING
PLAINTIFF TO FILE MOTION SEEKING
LEAVE TO AMEND AND PROPOSED SIXTH
AMENDED COMPLAINT IN 1:09-cv-00679MJS (PC), AND (3) DIRECTING CLERK OF
COURT TO FILE AND SERVE ORDER IN
BOTH ACTIONS

v.
UNITED STATES,

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Defendant.

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(Doc. 1)
/

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Plaintiff Raul Sanchez Zavala, a federal prisoner proceeding pro se and in forma pauperis,

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filed this civil action pursuant to the Federal Tort Claims Act (FTCA) on June 8, 2012. 28 U.S.C.

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§ 1346(b)(1).

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The underlying facts giving rise to Plaintiff’s FTCA claim are the same facts being litigated

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in case number 1:09-cv-00679-MJS (PC) Zavala v. Rios, et al. The Court has broad discretion to

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consolidate actions which involve a common question of law or fact. Fed. R. Civ. P. 42(a)(2);

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Pierce v. County of Orange, 526 F.3d 1190, 1203 (9th Cir. 2008). The Court declines to permit

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Plaintiff to pursue his FTCA claim in this action while separately pursuing in 1:09-cv-00679-MJS

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(PC) his civil rights claims against the individual federal employees under Bivens v. Six Unknown

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Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Plaintiff’s

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litigation strategy is wasteful of the Eastern District of California’s scare resources, and it has the

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potential to prejudice one or more parties given the possibility of conflicting rulings and/or should

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Plaintiff be attempting to do an end run around prior court orders and/or the advice of counsel in

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1:09-cv-00679-MJS (PC).
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Rather than filing a separate action, Plaintiff should have sought leave to amend to add his

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FTCA claim in case number 1:09-cv-00679-MJS (PC). Valadez-Lopez v. Chertoff, 656 F.3d 851,

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855-57 (9th Cir. 2011). Accordingly, the Court HEREBY ORDERS as follows:

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1.

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This action is consolidated with case number 1:09-cv-00679-MJS (PC) and case
number 1:12-cv-00930-SKO (PC) is closed;

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2.

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Plaintiff is required to file a motion seeking leave to amend and a proposed sixth
amended complaint in case number 1:09-cv-00679-MJS (PC); and

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3.

The Clerk of the Court shall file and serve this order in both actions.

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IT IS SO ORDERED.

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Dated:
ie14hj

February 13, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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