McClendon v. Sposato

Filing 10

ORDER: SO ORDERED that this action shall proceed in accordance with the Order of Consolidation, a copy of which is annexed hereto. Since plaintiffs financial status, as set forth in his declaration in support of the application to proceed in forma pa uperis, qualifies him to file the complaint without prepayment of the filing fees, see 28 U.S.C. § 1915(a)(1), the application to proceed in forma pauperis is granted. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal f rom this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. The Clerk of Court is directed to mail a copy of this Order and the Order of Consolidation to the pro se plaintiff at his last known address. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 7/9/2015. (Attachments: # 1 order of consolidation) (Florio, Lisa)

UNITED STATES DISTRlCT COURT
EASTERN DISTRlCT OF NEW YORK

---------------------------------------------------)(
DWAYNE M. REID,

FILE 0

IN CLERK'S OFFICE
·U.S. DISTRICT COURT E.D.N.Y.

Plaintiff,
ORDER
13-CV-1192(SJF)(WDW)

-against-

Defendants.

---------------------------------------------------)(
KEVIN LEE BENLOSS,

Plaintiff,
'13-CV-1316 (SJF)(WDW)

SERGEANT KRUEGER, Shield #52,
Administrative Seg. Unit, NASSAU
COUNTY SHERlFF'S DEPARTMENT,
SHERlFF OF NASSAU COUNTY
DEPARTMENT, CAPTAIN FORD,
Chief Administrative Officer,
Defendants.

---------------------------------------------------)(

NELSON HERRERA,

Plaintiff,
-against-

'13-CV-1637 (SJF)(WDW)

NASSAU COUNTY SHERlFF'S
DEPARTMENT CORRECTIONAL
CENTER,
Defendant.

---------------------------------------------------)(

MAY802011

*

LONG ISI.ANO OFFICE

NASSAU COUNTY SHERlFF'S
DEPARTMENT, SHERlFF SPOSATO,
Individually and in his Official Capacity
as Sheriff ofNassau County, JOHN
DOE, Superintendent of Nassau County
Jails,

-against-

*

----------------------------------------------------)(
JOV ANY HENRIUS,

Plaintiff,
-against-

I

13-CV-2349 (SJF)(WDW)

THE COUNTY OF NASSAU AND
MICHAEL SPOSATO, Individually and
in his Official Capacity as Sheriff,
Defendants.

---------------------------------------------------)(
DAQUAN WAGNER,

Plaintiff1
'13-CV-2460 (SJF)(WDW)

-againstNASSAU COUNTY SHERIFF'S
DEPT. AND SHERIFF SPOSATO,
Individually and in his Official Capacity
as Sheriff of Nassau County,
Defendants.

---------------------------------------------------)(

ABIGAIL TORRES,

Plaintiff,
-against-

•13-CV-2600 (SJF)(WDW)

THE COUNTY OF NASSAU AND
MICHAEL SPOSATO, as Sheriff of
Nassau County,
Defendants.

---------------------------------------------------)(
CHRISTIAN DELOSRIOS,

Plaintiff,
-against-

"13-CV-2601 (SJF)(WDW)

THE COUNTY OF NASSAU AND
MICHAEL SPOSATO, as Sheriff of
Nassau County,
Defendants.

---------------------------------------------------)(
2

--------------------------------------------------)(
FERNANDO CAZARES,

Plaintiff,
,13-CV-2604 (SJF)(WDW).

-againstTHE COUNTY OF NASSAU AND
MICHAEL SPOSATO, Individually and
in his Official Capacity as Sheriff of
Nassau County,
Defendants.

---------------------------------------------------)(

MONTAVIOUS JACKSON,

Plaintiff,
-against-

• 13-CV-2608 (SJF)(WDW)

THE COUNTY OF NASSAU AND
MICHAEL SPOSATO, as Sheriff of
Nassau County,
Defendants.

---------------------------------------------------)(

JOHANS CABRERA,

Plaintiff,
-against-

I

13-CV-2610 (SJF)(WDW)

THE COUNTY OF NASSAU AND
MICHAEL SPOSATO, as Sheriff,
Defendants.

---------------------------------------------------)(
GUILLERMO TORRES,

Plaintiff,
-against-

'13-CV-2627 (SJF)(WDW)

THE COUNTY OF NASSAU AND
MICHAEL SPOSATO, as Sheriff of
Nassau County,
Defendants.

---------------------------------------------------)(
3

FEUERSTEIN, District Judge:
Pursuant to a February 13, 2012 Order in Anderson, et al. v. Sposato, et al., 11-CV-5663
(SJF)(WDW) ("the Anderson case"), over one hundred (1 00) separate prose complaints brought
pursuant to 42 U.S.C. § 1983 ("Section 1983") challenging the prison conditions allegedly existing
at the Nassau County Correctional Center ("NCCC") have been consolidated. By Order dated
February 11, 2013, the Court entered a scheduling order ("the Scheduling Order") governing
discovery, motion practice and the trial in the Anderson case. The eleven (11) above-captioned pro

se complaints were filed in this Court near or after the expiration of several discovery deadlines set
forth in the Scheduling Order, all of which are accompanied by applications to proceed in forma

pauperis. Like the complaints in the Anderson case, the above-captioned complaints are brought
pursuant to Section 1983 and challenge similar prison conditions allegedly existing at the NCCC.
Since the financial status of the above-captioned plaintiffs, as set forth in their declarations in
support of their applications to proceed in forma pauperis, qualifies them to commence their
respective actions without prepayment of the filing fees, see 28 U.S.C. § 19l5(a)(l), the abovecaptioned plaintiffs' applications to proceed in forma pauperis are granted.

I.

Consolidation of Actions
As noted above, the instant complaints allege the existence of unhealthy, unsanitary and/or

hazardous conditions at theN CCC. Rule 42(a) ofthe Federal Rules ofCi vii Procedure provides that
"[i]f actions before the court involve a common question of law or fact, the court may:

***

consolidate the actions; or issue any other orders to avoid unnecessary cost or delay." See Devlin
v. Transportation Communications Intern. Union, 175 F.3d 121, 130 (2d Cir. 1999). District courts
have broad discretion to determine whether consolidation is appropriate, see Johnson v. Celotex
4

Corp., 899 F.2d 1281, 1284-1285 (2d Cir. 1990), and may consolidate actions under Rule 42(a) sua

sponte. See Devlin, 175 F.3d at 130. Consolidation "should be prudently employed as a valuable
and important tool of judicial administration, * * *, invoked to expedite trial and eliminate
unnecessary repetition and confusion." Devlin, 175 F.3d at 130 (internal quotations and citations
omitted). Nonetheless, although considerations of judicial economy generally favor consolidation,
"[c]onsiderations of convenience and economy must yield to a paramount concern for a fair and
impartial trial." Johnson, 899 F.2d at 1285; see also Devlin, 175 F.3d at 130 ("[E]fficiency cannot
be permitted to prevail at the expense of justice * * *.") In determining whether consolidation is
appropriate, the court must consider:
Whether the specific risks of prejudice and possible confusion are overborne by the
risk of inconsistent adjudications of common factual and legal issues, the burden on
parties, witnesses, and available judicial resources posed by multiple lawsuits, the
length of time required to conclude multiple suits as against a single one, and the
relative expense to all concerned of the single-trial, multiple-trial alternatives.
Johnson, 899 F.2d at 1285 (internal quotations and citations omitted).
All eleven (11) of the above-captioned actions were recently filed, have not yet proceeded
to discovery and allege similar unsanitary and hazardous conditions existing at the NCCC, and there
will be minimal, if any, prejudice or confusion to the parties in consolidating these actions.
Therefore, in the interests of judicial economy and efficiency, and to minimize the expense and
burden on all parties in prosecuting and defending multiple lawsuits, the eleven ( 11) above-captioned
actions are consolidated for all pretrial purposes and for trial, which will be bifurcated on the issue
of liability and damages, with leave for any party to seek to sever the actions for the purpose of any
trial on the issue of damages within ten (10) days following the close of discovery in this
consolidated action. The actions will henceforth proceed under docket number 13-cv-1192 (the
"lead case"), all papers filed in these actions shall henceforth bear only the lead case docket number,
the caption of this consolidated action shall be amended in accordance with this Order and the

5

actions assigned docket numbers other than the lead docket number shall be administratively closed
with leave to reopen for the purpose of any trial on the issue of damages.

II.

Conclusion
For the foregoing reasons, it is hereby:
0 RD ERED that plaintiffs' respective applications to proceed in forma pauperis are granted;

and it is further,
ORDERED that the eleven (11) above-captioned actions are consolidated for all purposes,
including trial, to proceed under docket number 13-cv-1192 ("the consolidated action"), with leave
to move to sever the actions for the purpose of any trial on the issue of damages within ten {10)
days following the close of discovery in this consolidated action; and it is further,
ORDERED that the Clerk of Court shall: (1) amend the caption of the lead case in
accordance with this Order, (2) administratively close the actions assigned docket numbers other
than the lead docket number, with leave to reopen as set forth herein and (3) forward to the United
States Marshal for the Eastern District ofNew York copies of the summonses, complaints, and this
order for service upon all named defendants without prepayment of the filing fee; and it is further,
ORDERED that when any pro se action relating to the subject matter of this consolidated
action or the Anderson case is hereafter filed in this Court, the Clerk ofthe Court shall: (I) assign
such action a new case number ("newly-filed action") to proceed before the undersigned and
Magistrate Judge William D. Wall; 1 (2) docket this order in each newly-filed action; (3) consolidate
1

The actions consolidated herein, and any newly-filed action
hereunder, are deemed "related" only to the extent that they relate to
the subject matter of this consolidated action or the Anderson case.
Any future civil action commenced by any of the pro se plaintiffs in
this consolidated action and any newly-filed action hereunder shall
not be deemed "related" within the meaning of Local Civil Rule
50.3.l(e) (2) and, thus, shall not be automatically assigned to the
undersigned unless such plaintiff has filed an action unrelated to the
subject matter of this consolidated action that was previously

6

each newly-filed action with this consolidated action and make an appropriate entry on the
consolidated action's docket so indicating; (4) mail a copy of this order to the plaintiffin the newlyfiled acti~n and so indicate on the consolidated action's docket; and (5) administratively close each
newly-filed action; and it is further,
ORDERED that any party to a newly-filed action, i.e., the plaintiff filing the newly-filed
action and any named defendant therein, may move to sever any claim raised in such newly-filed
action that was not raised in the eleven (11) above-captioned actions or in the Anderson case within
thirty (30) days after the Clerk of the Court mails the plaintiff filing the newly-filed action a
copy of this order, or they will be deemed to have waived their right to seek severance, except as
otherwise provided herein, i.e., for trial on the issue of damages. Any plaintiff of a newly-filed
action with a severed claim may proceed with such claim after the resolution of this consolidated
action by moving to have the newly-filed action reopened within thirty (30) days of the entry of
judgment in this consolidated action, or the severed claim will be deemed voluntarily withdrawn;
and it is further,
ORDERED that the United States Marshal Service shall serve the summonses and
complaints, together with a copy of this order, upon defendants without prepayment of the filing fee;
and it is further,
ORDERED that pursuant to Rule 77(d)(l) of the Federal Rules of Civil Procedure, the Clerk
of the Court shall serve notice of entry of this order upon all parties in accordance with Rule S(b) of
the Federal Rules of Civil Procedure, including mailing a copy of this order to each plaintiffs

assigned to me.
Rather, any such future actions shall be either
randomly assigned or automatically assigned to the district judge who
presided over any prior action filed by such plaintiff.

7

address of record pursuant to Rule 5(b)(2)(C).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would
not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any
appeal. See Coppedge v. United States, 369 U.S. 438,444-45,82 S. Ct. 917,8 L. Ed.2d 21 (1962).
SO ORDERED.

Sandra J. Feuerstein
United States District Judge
Dated:

M~y

20,2013
Central Islip, New York

8