Troupe v. Washington State Penitentiary et al

Filing 272

ORDER REGARDING CONSOLIDATION - denying 268 Motion for Reconsideration. Troupe v. Brodhead CV-13-5028-EFS and the single remaining Eighth Amendment claim against Office Brodhead is merged into CV-13-5038-EFS. All future filings in either case sh all be filed under Case No. CV-13-5038-EFS unless the Court later directs otherwise. Case No. CV-13-5028-EFS shall be administratively closed. Signed by Senior Judge Edward F. Shea. (VR, Courtroom Deputy)**7 PAGE(S), PRINT ALL**(David Troupe, Prisoner ID: 765714)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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No. 13-CV-5028-EFS

DAVID TROUPE,
Plaintiff,

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ORDER REGARDING CONSOLIDATION

v.

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KENNITH R. BRODHEAD,
Defendants.

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No. 13-CV-5038-EFS

DAVID TROUPE,
Plaintiff,

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v.

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KATRINA SUCKOW, BONNIE KLAHN, and
THOMAS ROE,

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Defendants.

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Before the Court are numerous motions by the parties as well as
the issue of consolidation. The Court takes each issue in turn.
I.

Consolidation of Cases
Federal Rule of Civil Procedure 42(a) permits a court to “join

for trial” or consolidate actions before the Court that “involve a
common

question

of

law

or

fact.”

On

April

18,

2016,

the

Court

requested briefing by the parties on whether consolidating these two
cases was appropriate. The Court believed that given the similar
questions

of

law

and

fact

and

ORDER REGARDING CONSOLIDATION - 1

the

similar

procedural

postures,

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consolidation was appropriate. The Defendants responded and are in

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favor of consolidation but request a continuance if the Court choses

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to do so. ECF Nos. 203 & 204. Plaintiff does not oppose consolidation

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but requests mediation if the Court consolidates.

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Both of these cases are now past the discovery and summary

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judgment stages of litigation. Plaintiff in both cases alleges Eighth

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Amendment

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Penitentiary. The backgrounds in these two cases are substantially

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the same. Therefore, pursuant to Federal Rule of Civil Procedure

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42(a), the Court consolidates these two cases finding that both cases

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have similar questions of law and fact, and that judicial economy and

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the ends of justice are best served by combining these two cases. The

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Court

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deadlines below.

sets

As

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violations

to

new

trial

by

employees

and

Plaintiff’s

pretrial

request

for

of

the

dates,

as

mediation,

Washington

well

the

as

State

additional

Court

is

not

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opposed to the idea. However, the Court will not force the parties to

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mediate if they do not want to participate. It is clear that the

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Plaintiff seeks mediation. However, the Court will order mediation

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only if the Defendants believe it also proper. By no later than May

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31, 2016, Defendants must file a notice with the Court indicating

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whether they support referring this case to mediation.

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II.

Motion for Protective Order, Case No. 13-CV-5038, ECF No. 195

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Plaintiff seeks a protective order in Troupe v. Suckow, 13-CV-

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5038. ECF No. 195. Plaintiff appears to seek an order requiring

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either that 1) Ms. Amy Clemmons be forced to remain as the attorney

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of

record

in

this

case

or

2)

ORDER REGARDING CONSOLIDATION - 2

bar

all

other

attorneys

for

the

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Washington State Attorney General’s office from accessing the records

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in

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83.2(d)(3) states: “Where there has simply been a change (withdrawal

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or

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substitution is not required.” If two attorneys practice in the same

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law firm, they may substitute in on a case without permission from

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the Court. Therefore, the Court will not force Ms. Clemmons to remain

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on this case if the Attorney General’s Office believes it in its best

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interest to substitute counsel.

this

matter.

addition)

of

As

to

counsel

Plaintiff’s

within

the

first

same

request,

law

firm,

Local

and

Rule

order

of

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As to Plaintiff’s privacy concerns, the Court expects that the

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Attorney General’s Office, and all the attorneys working on this

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case, will take reasonable measures to protect the medical and mental

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health records of Plaintiff. However, the Court will not bar certain

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individuals who work in that office from accessing those records.

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Therefore, Plaintiff’s Motion for Protective Order, ECF No. 195, is

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denied.

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III. Motion for 25 Blank Subpoenas, Case No. 13-CV-5038, ECF No. 212

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Plaintiff asks for “25 blank subpoenas for witnesses in #13-CV-

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5038-EFS July 18, 2016 trial” without explanation or clarification.

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The Court assumes that this request is in response to the Court’s

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previous Order Regarding Plaintiff’s Trial Witnesses, ECF No. 202. As

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the

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witnesses, “he must first file a motion with the Court clearly and

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specifically identifying 1) the first and last name of each witness

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for whom he seeks the issuance of a trial subpoena, and 2) the

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witness’s

Court

stated

address

in

at

that

which

order,

if

service

ORDER REGARDING CONSOLIDATION - 3

Plaintiff

will

be

wants

to

effected.”

subpoena

A

motion

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requesting 25 blank subpoenas, more than is currently on his witness

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list, without explanation or clarification, does not suffice.
Additionally,

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Plaintiff

has

failed

to

abide

by

the

Court’s

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scheduling order in that his witness list, ECF No. 214, fails to

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“include a brief description of the witness, a brief summary of the

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witness' anticipated testimony, whether the witness will be called as

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an expert, and any known trial date/time conflicts that witness has.”

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ECF No. 173.

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For these reasons, Plaintiff’s Motion for 25 Blank Subpoenas,

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ECF No. 212, is denied. If Plaintiff wants to subpoena witnesses for

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trial,

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stating what he expects each witness to testify to and why that

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testimony is relevant to the narrow Eighth Amendment claims in these

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cases. The Court will then send the subpoenas for those witnesses and

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will not permit him to subpoena witnesses that have not been approved

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by the Court. New deadlines for witness lists are delineated below.

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IV.

he

must

file

a

list

of

witnesses

with

the

Court

clearly

Motion to Approve a Subpoena, Case No. 13-CV-5038, ECF No. 215
Plaintiff asks the Court to approve a discovery subpoena in

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Troupe

v.

Suckow,

13-CV-5038.

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Plaintiff that discovery in these cases has ended. All that remains

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for both of these cases is to prepare for trial using the discovery

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already obtained. No further discovery subpoenas will be approved.

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Only trial subpoenas will be issued and only after the requirements

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in the Court’s orders have been met. Therefore, Plaintiff’s Motion to

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Approve Subpoena, ECF No. 215, is denied.

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/

ORDER REGARDING CONSOLIDATION - 4

ECF

No.

215.

The

Court

reminds

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V.

Motion for Reconsideration, Case No. 13-CV-5028, ECF No. 268

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Plaintiff asks the Court to reconsider its Order Granting in

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Part and Denying in Part Defendants’ Motion for Summary Judgment. ECF

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No. 268. Specifically, Plaintiff argues that Mr. Christopher Bowman

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should not be dismissed from this case. Plaintiff, however, provides

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no new evidence or case law supporting his proposition. He simply

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argues that Mr. Bowman retaliated against him in a different way. As

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the

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essential element of his First Amendment retaliation claim against

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Mr. Bowman and therefore summary judgment is appropriate. Therefore,

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Plaintiff’s Motion for Reconsideration, Case No. 13-CV-5028, ECF No.

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268, is denied.

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VI.

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Court

stated

in

its

order,

Plaintiff

has

failed

to

show

an

Conclusion & Deadlines
The parties must carefully read the Court’s prior Scheduling

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Order,

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superseded by the deadlines below. The following deadlines apply to

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the single consolidated remaining case:

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ECF

No.

173,

and

abide

by

Witness and Exhibit lists:
Lists filed and served:
Objections filed and served:
Deposition Designations:
Designated Transcripts served:
Cross-Designations served:
Objections filed and served:
All motions in limine filed
Joint Proposed Pretrial Order filed
and emailed to the Court
Confer with Courtroom Deputy
regarding JERS
PRETRIAL CONFERENCE

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ORDER REGARDING CONSOLIDATION - 5

its

requirements

that

are

September 1, 2016
September 9, 2016
August 12, 2016
August 19, 2016
August 26, 2016
September 1, 2016
September 23, 2016
1 Week Before Pretrial
October 4, 2016
1:30 P.M. - Richland

not

1

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Trial briefs, jury instructions,
verdict forms, requested voir dire,
and list of exhibits admitted
without objection, filed and
emailed to the Court
Mediation, if any, must be
completed by

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JURY TRIAL

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October 10, 2016

90 Days Before Trial
October 24, 2016
9:30 A.M. - Richland

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The parties do not need to refile the motions in limine they

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have

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pretrial conference. If the parties wish to file additional motions

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in limine, specific to the claim against Officer Brodhead, which are

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being consolidated into this case, they must do so by the deadlines

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listed above.

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already

1.

2.

3.

heard

at

the

October

4,

2016

Plaintiff’s Motion for Protective Order, Case No. 13-CV-

Plaintiff's Motion for 25 Blank Subpoenas, Case No. 13-CV-

Plaintiff’s Motion to Approve a Subpoena, Case No. 13-CV5038, ECF No. 215, is DENIED.

4.

Plaintiff’s

Motion

for

Reconsideration,

Case

No.

13-CV-

and

the

single

5028, ECF No. 268, is DENIED.

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be

5038, ECF No. 212, is DENIED.

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will

5038, ECF No. 195, is DENIED.

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Those

Accordingly, IT IS HEREBY ORDERED:

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filed.

5.

Troupe

v.

Brodhead,

4:13-CV-5028-EFS,

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remaining Eighth Amendment claim against Officer Brodhead

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is merged into this case.

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6.

All future filings in either case shall be filed under Case
Number

4:13-CV-5038-EFS,

ORDER REGARDING CONSOLIDATION - 6

unless

the

Court

later

directs

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otherwise.

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administratively closed.

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7.

Case

Number

4:13-CV-5028-EFS

The Caption is hereby AMENDED.

shall

be

All papers filed in this

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action shall hereinafter use the caption "DAVID TROUPE,

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Plaintiff,

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KLAHN,

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docket number, A4:13-CV-5038-EFS.@

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8.

All

v.

and

KENNITH

THOMAS

parties

in

BROADHEAD,

ROE,

both

KATRINA

Defendants,"

cases

are

to

and

SUCKOW,
shall

file

all

BONNIE

bear

the

documents

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pursuant to the deadlines set forth above and subject to

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the requirements set forth in the Court’s December 8, 2015

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Amended Scheduling Order, ECF No. 173.

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9.

Defendants must file a notice with the Court by May 31,

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2016,

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appropriate in this matter.

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10.

stating

whether

or

not

they

believe

mediation

is

Plaintiff’s Motion in Limine, ECF No. 196, and Defendants’

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Motion in Limine, ECF No. 181, are RESET to be heard at the

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October 4, 2016 pretrial conference.

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IT IS SO ORDERED.

The Clerk’s Office is directed to enter this

Order and provide copies to counsel and Mr. Troupe.
DATED this

17th

day of May 2016.

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s/Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

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Q:\EFS\Civil\2013\5028.5038.TROUPE.motions.lc2.docx

ORDER REGARDING CONSOLIDATION - 7