Smith et al v. Schwarzenegger et al

Filing 102

ORDER Vacating Findings and Recommendations of September 4, 2014 and Granting Request for Consolidation in Case Number: 1:13-cv-01822-AWI-GSA (PC); ORDER for Clerk to Consolidate Case Number: 1:13-cv-01822-AWI-GSA (PC) with Case Number: 1:14-cv-00060-LJO-SAB, signed by Magistrate Judge Gary S. Austin on 9/30/14. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DONALD WRIGHT,

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Plaintiff,

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vs.
EDMUND G. BROWN, JR., et al.,

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Defendants.

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ORDER VACATING FINDINGS AND
RECOMMENDATIONS OF
SEPTEMBER 4, 2014
(ECF No. 10.)
ORDER GRANTING PLAINTIFF’S
REQUEST FOR CONSOLIDATION
(ECF No. 13.)
ORDER FOR CLERK TO
CONSOLIDATE THIS CASE WITH
CASE 1:14-cv-00060-LJO-SAB

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1:13-cv-01822-AWI-GSA (PC)

I.

BACKGROUND

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On November 12, 2013, Plaintiff Donald Wright, a state prisoner, filed this civil rights

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action pursuant to 42 U.S.C. § 1983 while proceeding in pro per, alleging failure to provide

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medical care in violation of the Eighth Amendment. (ECF No. 1.)

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On September 4, 2014, the court entered findings and recommendations to dismiss this

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action based on Plaintiff’s failure to comply with the court’s orders of November 13, 2013 and

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March 10, 2014, which ordered Plaintiff to submit the court’s form indicating consent to or

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decline of Magistrate Jurisdiction. (ECF No. 10.) On September 18, 2014, Plaintiff filed a

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stipulation to substitute Attorney Benjamin Pavone as his attorney of record.

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On September 18, 2014, Attorney Pavone filed a notice of related cases, objections to the

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findings and recommendations, and a request for consolidation, on Plaintiff’s behalf. (ECF

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Nos. 12, 13.) On September 26, 2014, the court approved the stipulation for substitution of

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attorneys. (ECF No. 14.)
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(ECF No. 11.)

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II.

CONSOLIDATION

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Plaintiff contends that this case is related to Smith v. Schwarzenegger, No. 1:14-cv-

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00060-LJO-SAB, because the defendant parties and claims, based on unlawful contraction of

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the disease known as Valley Fever, are similar within the meaning of Local Rule 123(a).

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Plaintiff requests consolidation of this case with Smith, arguing that assignment to the same

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judges will maximize judicial economy and efficiency.

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The purpose of consolidation is to avoid unnecessary cost or delay where the claims and

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issues contain common aspects of law or fact. E.E.O.C. v. HBE Corp., 135 F.3d 543, 551 (8th

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Cir. 1998). In determining whether to consolidate cases, “a court weighs the interest of judicial

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convenience against the potential for delay, confusion and prejudice caused by consolidation.”

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Southwest Marine, Inc. v. Triple A Mach. Shop, Inc., 720 F.Supp. 805, 807 (N.D. Cal. 1989).

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Smith is proceeding on the claim that state officials were deliberately indifferent to the

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substantial risk of harm by exposing the named plaintiffs to the risk of contracting Valley

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Fever. The defendants are all alleged to have participated in implementing or continuing the

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same policy of inaction despite their knowledge of the risk.

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The discovery issues in these actions for those defendants named in both complaints

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will be identical in each case.

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incurred due to identical discovery and motion practice occurring in separate actions.

Consolidating these actions will avoid unnecessary costs

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Common questions of law and fact appear to exist in these actions.

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It is in the interest of judicial economy to avoid duplication by consolidating these

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actions for all pretrial purposes.

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resources of the parties by addressing identical issues in a single case. Resolution of these

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actions will involve overlapping facts and witnesses as to the claims raised. It serves judicial

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economy to “avoid the inefficiency of separate trials involving related parties, witnesses, and

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evidence.” E.E.O.C., 135 F.3d at 551.

Consolidation will conserve judicial resources and the

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At this point in the litigation, the plaintiffs in Smith have been granted the opportunity

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to file a consolidated complaint. Plaintiff’s complaint in this action has not been served, and no

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defendants have appeared in the action. Consolidation of these actions will not cause a delay,
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but will actually expedite the litigation in this action by allowing Plaintiff to be included in the

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consolidated complaint which can be addressed by one responsive pleading.

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There is no risk of confusion due to the consolidation of these actions, as the claims will

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be identical as to each named defendant. Similarly, the evidence and issues will be the same in

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each case for each defendant. Finally, the Court can discern no prejudice to any of the parties

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by consolidating these actions and consolidating these actions will avoid the danger of having

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inconsistent verdicts in the related cases.

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consolidating these actions for all purposes.

The factors considered weigh in favor of

In light of this order, the court’s findings and recommendations of September 4, 2014

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shall be vacated.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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VACATED;
2.

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The Clerk’s Office is directed to consolidate this action with Smith v.
Schwarzenegger, No. 1:14-cv-00060-LJO-SAB;

4.

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Plaintiff’s request for consolidation, filed on September 18, 2014, is
GRANTED;

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The court’s findings and recommendations of September 4, 2014 are

Smith v. Schwarzenegger, No. 1:14-cv-00060-LJO-SAB shall be designated as
the lead case; and

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The Clerk’s Office is directed to close this action.

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IT IS SO ORDERED.
Dated:

September 30, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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