Messer v. United States Penitentiary Atwater Food Service Department

Filing 9

ORDER GRANTING 8 Motion to Consolidate Cases; ORDER DIRECTING Clerk to Consolidate Case 1:13-cv-1866-BAM-PC with this Case; ORDER for Plaintiff to File First Amended Complaint, as Instructed by this Order; Thirty Day Deadline to File First Amended Complaint signed by Magistrate Judge Gary S. Austin on 1/14/2014. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

CECIL MESSER,

11

Plaintiff,

12
13
14

vs.
UNITED STATES PENITENTIARYATWATER FOOD SERVICE
DEPARTMENT, et al.,

15

Defendants.

16
17

ORDER GRANTING MOTION TO
CONSOLIDATE CASES
(Doc. 8.)
ORDER DIRECTING CLERK TO
CONSOLIDATE CASE 1:13-CV-01866BAM-PC WITH THIS CASE
ORDER FOR PLAINTIFF TO FILE
FIRST AMENDED COMPLAINT, AS
INSTRUCTED BY THIS ORDER
THIRTY DAY DEADLINE TO FILE
FIRST AMENDED COMPLAINT

18
19

1:13-cv-01300-GSA-PC

I.

BACKGROUND

20

Cecil Messer (APlaintiff@) is a federal prisoner proceeding pro se and in forma pauperis

21

with this civil rights action, pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971).

22

On August 16, 2013, Plaintiff filed the Complaint commencing this action. (Doc. 1.) On

23

October 15, 2013, Plaintiff consented to the jurisdiction of a Magistrate Judge in this action,

24

pursuant to 28 U.S.C. § 636(c), and no other parties have appeared in this action. (Doc. 7.)

25
26

On January 13, 2014, Plaintiff filed a motion for the court to consolidate his pending
case 1:13-cv-01866-BAM-PC with this case.1 (Doc. 8.)

27
28

1

Plaintiff also consented to Magistrate Judge jurisdiction in case 1:13-cv-01866-BAM-PC, and
no other parties have appeared in that action. (Court Record.)
1

1

II.

CONSOLIDATION OF CASES – RULE 42(a)

2

A.

3

Consolidation is governed by Rule 42(a) of the Federal Rules of Civil Procedure, which

4

provides, AIf actions before the court involve a common question of law or fact, the court may

5

(1) join for hearing or trial any or all of the matters at issue in the actions; (2) consolidate the

6

actions; or (3) issue any other orders to avoid unnecessary cost or delay.@ Fed. R. Civ. P. 42(a).

7

Consolidation may be ordered on the motion of any party or on the court=s own motion

8

whenever it reasonably appears that consolidation would aid in the efficient and economic

9

disposition of a case. See In re Air Crash Disaster at Florida Everglades on December 29,

10

1972, 549 F.2d 1006 (5th Cir. 1977). The grant or denial of a motion to consolidate rests in the

11

trial court=s sound discretion, and is not dependent on party approval. Investors Research Co.

12

v. United States Dist. Ct., 877 F.2d 777 (9th Cir. 1989); Cantrell v. GAF Corp., 999 F.2d 1007,

13

1007, 1001 (6th Cir. 1993). In determining whether to consolidate actions, the court weighs the

14

interest of judicial convenience against the potential for delay, confusion, and prejudice caused

15

by consolidation. Southwest Marine, Inc., v. Triple A. Mach. Shop, Inc., 720 F. Supp. 805, 807

16

(N.D. Cal. 1989).

17

B.

Legal Standard

Plaintiff’s Motion

18

Plaintiff requests consolidation of his pending case 1:13-cv-01866-BAM-PC, filed on

19

November 18, 2013, with this case. Plaintiff argues that the two cases “have exactly the same

20

characteristics,” involving similar events during which Plaintiff was served food containing

21

sharp pieces of metal by the Food Department at USP-Atwater, causing injury to Plaintiff’s

22

mouth. (Motion, Doc. 8 at 1.) Plaintiff also argues that he names the same defendants and

23

brings the same claims in both cases.

24

C.

25

The Court has reviewed the Complaints in both of Plaintiff’s cases and finds common

Discussion

26

questions of law and fact. In the instant case, Plaintiff alleges that on May 2, 2013, at USP-

27

Atwater, he was served food by the Food Service Department, began eating, and bit into a

28

sharp and rusty staple contained in the food. In case 1:13-cv-01866-BAM-PC, Plaintiff alleges
2

1

that on May 17, 2013, at USP-Atwater, he was served food by the Food Service Department,

2

began eating, and bit into a sharp piece of metal later identified as part of a can of food that had

3

been opened. In both cases, Plaintiff’s mouth was injured and began bleeding, became painful,

4

and required medical care. Plaintiff names the same defendants in both cases, the USP-Atwater

5

Food Service Department and a Doe Defendant (Supervisor/Administrator of the Food Services

6

Department). Plaintiff also brings the same claims in both cases, for violation of due process

7

under the Fifth Amendment, cruel and unusual punishment under the Eighth Amendment, and

8

negligence. Plaintiff requests monetary relief in both cases. Both cases are civil rights cases

9

pursuant to 42 U.S.C. § 1983, and the law governing both cases is the same. Consolidation of

10

these actions would result in judicial economy, because Plaintiff’s claims would be resolved in

11

one case instead of two. The court does not foresee any confusion of the issues, delay, or

12

prejudice resulting from consolidation in this instance. Therefore, Plaintiff’s motion for

13

consolidation shall be granted.

14

Plaintiff shall be required to file an amended complaint combining the allegations made

15

in both of his consolidated cases, within thirty days. Plaintiff may not add allegations of events

16

occurring after November 18, 2013, or change the nature of this suit by adding new, unrelated

17

claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no

18

“buckshot” complaints). Plaintiff is advised that Local Rule 220 requires that an amended

19

complaint be complete in itself without reference to any prior pleading. As a general rule, an

20

amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th

21

Cir. 1967). Once an amended complaint is filed, the original complaint no longer serves any

22

function in the case. Therefore, in an amended complaint, as in an original complaint, each

23

claim and the involvement of each defendant must be sufficiently alleged.

24

III.

CONCLUSION

25

Based on the foregoing, IT IS HEREBY ORDERED that:

26

1.

27

///

28

Plaintiff’s motion for consolidation, filed on January 10, 2014, is GRANTED;

///
3

1

2.

The Clerk of Court is directed to consolidate case 1:13-cv-01866-BAM-PC with

2

this case, and the two consolidated cases shall proceed together as one case

3

under case number 1:13-cv-01300-GSA-PC;

4

3.

5

The Clerk shall administratively close case number 1:13-cv-01866-BAM-PC,
and no further filings will be allowed in that case;

6

4.

The Clerk shall send Plaintiff a § 1983 civil rights complaint form;

7

5.

Within thirty (30) days of the date of service of this order, Plaintiff shall file an

8

amended complaint using the court’s form, combining all of the allegations

9

made in both of his consolidated cases;

10

6.

Plaintiff shall boldly caption the amended complaint AFirst Amended

11

Complaint,@ use case number 1:13-cv-01300-GSA-PC, and sign the amended

12

complaint under penalty of perjury;

13

7.

All future filings shall bear case number 1:13-cv-01300-GSA-PC; and

14

8.

Plaintiff’s failure to comply with this order shall result in the dismissal of this

15

action.

16
17
18
19

IT IS SO ORDERED.
Dated:

20
21
22

January 14, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

6i0kij8d

23
24
25
26
27
28
4