Amaker v. Fischer et al
ORDER denying 30 Motion to Consolidate Cases. Signed by Hon. H. Kenneth Schroeder, Jr on 9/13/2016. (KER)(Mailed to Plaintiff)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BRIAN S. FISCHER, et al.,
BRIAN S. FISCHER, et al.,
DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the
assignment of 10-CV-88 to the undersigned to conduct all proceedings in this case,
including the entry of final judgment. Dkt. #27.
10-CV-464 was referred to the undersigned by the Hon. Richard J.
Arcara, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report
upon dispositive motions. Dkt. #9. It was subsequently transferred to the Hon.
Lawrence J. Vilardo. Dkt. #69.
Currently before the Court is plaintiff’s motion to consolidate the two
actions. 10-CV-88 at Dkt. #30 & 10-CV-464 at Dkt. #68. A motion to dismiss (Dkt. #16)
and motion to amend (Dkt. #28) are pending in 10-CV-88; 10-CV-464 is ready for a
scheduling order following resolution of defendants’ third motion to dismiss plaintiff’s
complaint. Dkt. # 65.
The proposed amended complaint in 10-CV-88 names defendants from
the Elmira Correctional Facility (“Elmira”); Southport Correctional Facility (“Southport);
and the Central Offices of the New York State Department of Corrections and
Community Supervision, alleging, inter alia, claims of denial of due process during
disciplinary hearings at Elmira in late 2009 and early 2010, following an ongoing dispute
as to whether prison regulations allowed plaintiff to wear dreadlocks and claim Nation of
Islam as his religion,1 as well as denial of access to the courts and interference with
personal and legal mail claims following his transfer to Southport. Dkt. #28-1.
10-CV-464 claims denial of due process during a disciplinary hearing on
May 22, 2010 at the Wende Correctional Facility (“Wende”), following a dispute as to
whether plaintiff was required to double bunk upon his arrival at Wende. Dkt. #57.
In 06-CV-490, the Hon. William M. Skretny entered a Preliminary Injunction Order
dated December 18, 2007, enjoining NYSDOCCS’ defendants from punishing plaintiff for
refusing to cut his hair or refusing to change his religious affiliation and from precluding
plaintiff’s attendance at Nation of Islam services and classes because of his dreadlocks. Dkt.
#115. On June 23, 2010, the Hon. Richard J. Arcara made the preliminary injunction
permanent and awarded plaintiff summary judgment on his cause of action alleging a violation
of free exercise rights pursuant to the First Amendment of the United States Constitution. Dkt.
In support of the motion, plaintiff argues that for purposes of analyzing
atypical and significant hardship, the 155 days spent in disciplinary confinement from
December 10, 2009 through May 14, 2010 as a result of the unconstitutional acts which
occurred at Elmira should be considered together with the 165 days spent in
disciplinary confinement from May 14, 2010 through October 26, 2010 as a result of the
unconstitutional acts which occurred at Wende. 10-CV-464 at Dkt. #68.
Rule 42(a) of the Federal Rules of Civil Procedure provides that the court
may consolidate actions which “involve a common question of law or fact.” A district
court “has broad discretion to determine whether consolidation is appropriate,”
Johnson v. Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir.), cert. denied, 498 U.S. 920
(1990), and “can consolidate related cases under Federal Rule of Civil Procedure 42(a)
sua sponte.” Devlin v. Transportation Communications Int’l. Union, 175 F.3d 121, 130
(2d Cir. 1999).
Consolidation should be prudently employed as a valuable and important
tool of judicial administration, invoked to expedite trial and eliminate unnecessary
repetition and confusion. Id. at 130. “In assessing whether consolidation is appropriate
in given circumstances, a district court should consider both equity and judicial
economy.” Id. However, “efficiency cannot be permitted to prevail at the expense of
justice – consolidation should be considered when savings of expense and gains of
efficiency can be accomplished without sacrifice of justice.” Id. (internal quotation
Although “[o]verlapping disciplinary penalties may, under some
circumstances, have to be aggregated for purposes of determining whether a liberty
interest was violated,” Reynoso v. Selsky, 292 Fed. Appx. 120 (2d Cir. 2008), those
circumstances appear to require not only that plaintiff’s SHU sentences be contiguous,
but also that they were either imposed by the same disciplinary hearing officer or based
on the same administrative rationale and executed under the same conditions. Toliver
v. Stefnik, 9:12-CV-77, 2016 WL 3349316, at *8 (N.D.N.Y. June 15, 2016), quoting
Taylor v. Artus, No. 9:05-CV-271, 2007 WL 4555932, at *8 (N.D.N.Y. Dec. 19, 2007)
(collecting cases). As the rationale for the imposition of disciplinary confinement in the
instant cases is distinct and the disciplinary hearings were conducted at two separate
correctional facilities, even if defendants were to argue that plaintiff did not possess a
liberty interest with respect to his confinement in SHU for 155 days at Elmira/Southport
or his 165 days at Wende, it does not appear that aggregation would be appropriate.
As a result, plaintiff’s motion to consolidate is denied.
Buffalo, New York
September 13, 2016
s/ J. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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