Kensu v. Rapelje et al
ORDER Denying 113 Motion to Consolidate Cases. Signed by District Judge Victoria A. Roberts. (LVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No: 12-11877
Hon. Victoria A. Roberts
LLOYD RAPELJE, et al.,
ORDER DENYING PLAINTIFF’S MOTION TO CONSOLIDATE CASES (DOC #113)
Before the Court is Plaintiff’s Motion to Consolidate Kensu v. Rapelje, et al. (Rapelje),
2:12-cv-11877, and Kensu v. Buskirk, et al. (Buskirk), 2:13-cv-10279. Consolidation is not
appropriate because the cases do not involve a common question of law or fact; and,
consolidation may create a risk of prejudice to Defendants.
The Court DENIES Plaintiff’s Motion.
Plaintiff Temujin Kensu is an inmate in the custody of the Michigan Department of
Corrections (“MDOC”). He is housed at Thumb Correctional Facility in Lapeer, Michigan.
Plaintiff filed the Rapelje action on April 26, 2012, alleging that Defendants have been
deliberately indifferent to his gluten and dairy intolerances. In the Rapelje action, Plaintiff
claims (1) retaliation and First Amendment violations, (2) Eighth Amendment violations,
(3) intentional infliction of emotional distress, (4) violation of the Americans with Disabilities
Act, and (5) discrimination based on handicap.
Plaintiff filed the Buskirk action on January 22, 2013, alleging that Defendants have been
deliberately indifferent to serious medical needs concerning his spine, shoulder, knee, ankle, and
joints. In the Buskirk action, Plaintiff claims an Eighth Amendment violation only.
III. STANDARD OF REVIEW
The Sixth Circuit held that “[w]hether cases involving the same factual and legal
questions should be consolidated for trial is a matter within the discretion of the trial court.”
Stemler v. Burke, 344 F.2d 393, 396 (6th Cir.1965); Cantrell v. GAF Corp., 999 F.2d 1007, 1011
(6th Cir. 1993).
Consolidation of cases is governed by Fed. R. Civ. P. 42(a):
If actions before the court involve a common question of law or fact, the court
(1) join for hearing or trial any or all matters at issue in the actions;
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay.
Furthermore, in Cantrell the court explained: “the decision to consolidate is one that must
be made thoughtfully . . . Care must be taken that consolidation does not result in unavoidable
prejudice or unfair advantage.” Cantrell, 999 F.2d at 1011.
Plaintiff argues consolidation is appropriate based on risk of prejudice, judicial economy,
and other factors courts traditionally use to determine if consolidation is appropriate. But, under
Fed. R. Civ. P. 42(a), a court must first determine the threshold issue: do the cases involve a
common question of law or fact?
The allegations in the two complaints make clear that these cases rely on markedly
different factual determinations. In Buskirk, the factual issue is whether Defendants were
deliberately indifferent to Plaintiff’s spine, shoulder, knee, ankle, and joint-related medical
needs. In Rapleje, the factual issue is whether Defendants were deliberately indifferent to
Plaintiff’s gluten and dairy intolerance. Unless the cases share a common question of law,
consolidation is not warranted.
Plaintiff’s Motion does not identify a common question of law. Plaintiff’s Motion alleges
that consolidation is appropriate because both cases include a common cause of action for Eighth
Amendment violations. Plaintiff’s conclusion is misguided because a common cause of action
is not a common question of law. For example, two cases involving a common question of law
could arise where the parties dispute the interpretation of statutory language. Consolidation may
be appropriate in that instance because once the court decides how the statute should be
interpreted that decision would resolve the issue for both cases. Plaintiff’s cases hinge on a jury
finding that defendants were indifferent to his gluten and dairy intolerance, in Rapelje, and spine,
shoulder, knee, ankle, and joint related issues, in Buskirk. Those separate factual determinations
are required for Plaintiff to sufficiently make valid Eight Amendment claims. The actions do not
hinge on a legal determination pertaining to the Eighth Amendment itself.
Even if Plaintiff’s cases involved a common question of law or fact, this Court would still
find consolidation inappropriate because it may create a risk of prejudice to Defendants
Couterier and Tyree. Plaintiff argues that these two Defendants will not be prejudiced by
consolidation. Plaintiff asserts that Defendants Couterier and Tyree are parties in both cases.
This is not true; the complaint from each action clearly reflects that Couterier is not a party to
Buskirk and Tyree is not a party to Rapelje.
Consolidation of these cases would create a risk of prejudice to Tyree because he is only
a party to Buskirk, which only alleges one count – for Eighth Amendment violations – based on
deliberate indifference to Plaintiff’s spine, shoulder, knee, ankle, and joint-related medical needs.
In contrast, Couturier is only a party to Rapelje, which alleges retaliation and First Amendment
violations, intentional infliction of emotional distress, violation of the Americans with
Disabilities Act, discrimination based on handicap, and Eighth Amendment violations – the only
common claim. Plaintiff’s complaint against Couturier is specifically tailored to gluten and dairy
intolerance, which requires a completely separate factual determination from Plaintiff’s claims
The Court finds that the cases do not involve a common question of law or fact and the
potential prejudice to Defendants make consolidation inappropriate.
Plaintiff’s Motion to Consolidate is DENIED.
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: April 14, 2014
The undersigned certifies that a copy of this document
was served on the attorneys of record and Temujin
Kensu by electronic means or U.S. Mail on April 14,
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