Garza v. McConnell Unit

Filing 10

AMENDED ORDER TO CONSOLIDATE CASES RE: 9 ORDER TO CONSOLIDATE CASES. (Signed by Magistrate Judge Jason B Libby) Parties notified.(srussell, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JOSE F. GARZA,
Plaintiff,
VS.
MCCONNELL UNIT et al
Defendants.

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November 07, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. 2:16-CV-225
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CIVIL ACTION NO. 2:16-CV-414

AMENDED ORDER OF CONSOLIDATION AND WITHDRAWING
MEMORANDUM AND RECOMMENDATION
Plaintiff filed this prisoner civil rights complaint pursuant to 42 U.S.C. § 1983 on
June 13, 2016. (Case No. 2:16-cv-225, D.E. 1). Plaintiff failed to pay the filing fee or to
request to proceed in forma pauperis (“IFP”) and was notified his pleadings were
therefore deficient. (Case No. 2:16-cv-225, D.E. 2 and D.E. 4). Plaintiff failed to correct
this deficiency and on August 18, 2016, the undersigned entered a Memorandum and
Recommendation (“M&R”) recommending this case be dismissed for failure to
prosecute.1 (Case No. 2:16-cv-225, D.E. 5). Petitioner has not filed any objections to
this M & R. However, on September 28, 2016, Plaintiff filed a second action with a
similar prisoner civil rights complaint as well as an IFP application which was assigned
Case No. 2:16-cv-414. In a letter received by the Court on October 24, 2016, Plaintiff
indicates he would like the undersigned stop interfering with his case. (Case No. 2:16-

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Plaintiff has since filed an inmate trust account statement (D.E. 7), however, he has not filed an application to
proceed in forma pauleris in Cause No. 2:16-cv-225.

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cv-414, D.E. 8). Therefore, it appears Plaintiff filed a new action in an attempt to have
his case assigned to a different judge.2
Plaintiff is advised that Senior United States District Judge Hilda G. Tagle remains
the presiding judge in his case. Judge Tagle will make the final trial court decision on
dispositive motions and any memoranda and recommendations from a magistrate judge.
Should Plaintiff’s case proceed to trial, Judge Tagle will be the presiding judge at trial.
However, Plaintiff’s case has been referred to the undersigned magistrate judge for
pretrial matters pursuant to Judge Tagle’s standing order3 and 28 U.S.C. § 636.
The M&R to dismiss for failure to prosecute in Plaintiff’s case in Cause No.
2:16-cv-225 (D.E. 5) has not been adopted and remains pending for the District Judge’s
consideration. However, for the reasons stated herein, the M&R to dismiss for failure to
prosecute (No. 2:16-cv-225, D.E. 5) is WITHDRAWN.
Plaintiff has filed Complaints raising the same or similar claims and, in his second
case, a fully completed IFP application. Plaintiff has now complied with the applicable
deficiency orders. Consolidation of his two cases is appropriate pursuant to Federal Rule
of Civil Procedure 42(a) as the actions are pending before the same court, involving the
identical or sufficiently similar parties and questions of law, and consolidation will
conserve judicial resources and reduce time and cost of trying the cases separately.

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Both of Plaintiff’s cases are assigned to Senior United States District Judge Hilda G. Tagle. Case No. 2:16-cv-225
has been referred to the undersigned for case management, ruling on non-dispositive motions, and making
recommendations on dispositive motions. Case No. 2:16-cv-414 has been referred to U.S. Magistrate Judge B.
Janice Ellington. Judge Ellington agrees the cases should be consolidated.
3
See Special Order No. 2015-1 on file with the District Clerk.

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Accordingly, the Clerk of Court shall CONSOLIDATE Civil Action 2:16-cv-414
with 2:16-cv-225. The Clerk of Court is ordered to administratively close and terminate
all motions as pending in Case No. 2:16-cv-414 and to file Plaintiff’s Complaint4, IFP
application and trust fund account statement in Case No. 2:16-cv-225.

All future

pleadings shall be filed in Case No. 2:16-cv-225.
The Clerk of Court is further directed to WITHDRAW the pending memorandum
and recommendation in Cause No. 2:16-cv-225 (D.E. 5).
The Clerk of Court is further directed to send this Order and Judge Tagle’s Special
Order No. C-2015-1 to Plaintiff.
The undersigned will consider Plaintiff’s IFP application and set a Spears hearing
at a later date. Plaintiff shall not file letters with this Court and shall refrain from filing
further pleadings until after a hearing has been conducted and/or Defendants have been
served.
ORDERED this 7th day of November, 2016.
___________________________________
Jason B. Libby
United States Magistrate Judge

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The Complaints in both cases shall be filed in Cause No. 2:16-cv-225 to ensure all of Plaintiffs claims are before
the Court.

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