United States District Court, W.D. Washington
BRANDON J. RUBIO, Plaintiff,
KING COUNTY, et al ., Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO CONSOLIDATE
CASES AND GRANTING CONTINUANCE OF DEFENDANTS' SUMMARY
P. DONOHUE Chief United States Magistrate Judge.
a civil rights action brought under 42 U.S.C. § 1983.
Currently pending before the Court are plaintiff's motion
to consolidate cases and issue a new scheduling order (Dkt.
40), plaintiff's multiple motions to extend the pretrial
deadlines (Dkts. 30, 31 and 43), and plaintiff's motion
for appointment of counsel (Dkt. 42). Also pending are
defendants' motion for summary judgment (Dkt. 34), and
plaintiff's request to defer of deny the summary judgment
motion under Fed.R.Civ.P. 56(d). The Court, having reviewed
each of the pending motions, all briefing related to those
motions, and the balance of the record, hereby finds and
ORDERS as follows:
Plaintiff's motion to consolidate cases and issue a new
scheduling order (Dkt. 40) is DENIED. Plaintiff, through
counsel, seeks to consolidate the instant action with another
pending case, Rubio v. DeJesus, C16-1307-JCC-BAT.
Plaintiff argues that consolidation is appropriate because
the cases were filed within a few days of each other and they
involve the same plaintiff, similar allegations of medical
mistreatment, similar defendants, and the same counsel for
all defendants. (Dkt. 40 at 5.) Defendants oppose
plaintiff's motion to consolidate.
to Fed.R.Civ.P. 42(a), where actions before the court involve
“a common question of law or fact” the court may
consolidate the actions. This rule affords courts
“broad discretion” to consolidate cases pending
in the same district either on motion by a party or sua
sponte. In re Adams Apple, Inc., 829 F.2d 1484,
1487 (9th Cir. 1987). In deciding whether
consolidation is appropriate, the Court considers a number of
factors including “judicial economy, whether
consolidation would expedite resolution of the case, whether
separate cases may yield inconsistent results, and the
potential prejudice to a party opposing consolidation.”
First Mercury Ins. Co. v. SQI, Inc., 2014 WL 496685,
at *2 (W.D.Wash. Feb.6, 2014). Having considered these
factors, this Court concludes that consolidation is not
appropriate in this instance.
operative complaint in this action is plaintiff's amended
complaint filed on October 3, 2016. (See Dkt. 9.)
Plaintiff alleges therein that his Eighth Amendment right to
be free from cruel and unusual punishment was violated when
he contracted MRSA (Methicillin-resistant Staphylococcus
aureus) after being housed with another inmate who had an
active MRSA infection, and when the antibiotics prescribed to
treat the infection were confiscated during a routine cell
inspection thereby interfering with the directives of medical
personnel and exacerbating plaintiff's medical condition.
(Id. at 2.) The events relating to this claim
occurred between approximately March 23, 2016 and April 21,
2016. (See Dkt. 45 at 2. See also, Dkt. 35
at 3-7.) Defendants in this action are King County and King
County Corrections Officer Chan. (See Dkt. 9 at 2.)
operative complaint in case C16-1307 is plaintiff's
amended complaint filed on September 27, 2016.
(C16-1307-JCC-BAT, Dkt. 9.) Plaintiff alleged therein that
after sustaining an ankle injury during an altercation with
other inmates on February 14, 2016, and receiving treatment
at Harborview Medical Center, he was denied crutches or a
brace upon his return to jail, resulting in pain and
permanent damage to the ankle. (Id. at 2-3.)
Plaintiff also alleged that on July 14, 2016, he was
re-injured when King County Corrections Officer Arnel DeJesus
zip-tied plaintiff's restraints to his aircast, causing
him to trip twice and resulting in a renewed need for
crutches. (Id. at 3.) Plaintiff's allegations
regarding the adequacy of his follow-up care for his ankle
injury were dismissed prior to service. (See id.,
Dkts. 10, 11.) Thus, the only claim remaining in case
C16-1307 concerns the conduct of Officer DeJesus.
plaintiff's two cases both relate to his incarceration at
the King County Jail in 2016, and will require application of
similar laws, the cases do not involve the same set of facts
or the same parties. See Coughlin v. Rogers, 130
F.3d 1348, 1351 (9th Cir. 1997) (the “mere fact that
all Plaintiffs' claims arise under the same general law
does not necessarily establish a common question of law or
fact”). As noted above, the instant action involves a
discrete series of events which transpired over the course of
approximately a month in March and April of 2016. Case
C16-1307 involves, at this juncture, a single incident which
occurred in July 2016 and concerns the conduct of a single
individual, conduct which is wholly unrelated to the conduct
underlying plaintiff's claims in this action.
as defendants point out, there may have been some efficiency
in consolidating parts of the discovery process given that
plaintiff's jail medical records would have been
discoverable in both cases, it appears that plaintiff's
counsel is now in possession of those records and, thus, no
additional benefit would be achieved by consolidating the
cases at this time. Moreover, the instant action is in a more
advanced procedural posture than case C16-1307. While a
pretrial scheduling order has yet to be issued in the
C16-1307 case, the pretrial deadlines established in this
case have passed and a motion for summary judgment is now
pending. Consolidation would inevitably result in a lengthy
delay of the instant action, and with little resulting
only apparent advantage to consolidating the two cases would
be to allow plaintiff's counsel, who appeared in this
action only recently, additional time get up to speed.
However, the Court can manage such timing issues within the
context of this case and without the significant delays and
complications which would result from consolidation. For the
foregoing reasons, plaintiff's motion to consolidate the
instant action with C16-1307, and to issue a new scheduling
order consistent with that case, is denied.
Plaintiff's motions for an extension of the pretrial
deadlines (Dkts. 30, 31 and 43) are DENIED. Pursuant to
Fed.R.Civ.P. 16(b)(4), “[a] schedule may be modified
only for good cause and with the judge's consent.”
The “‘good cause' standard primarily
considers the diligence of the party seeking the
amendment.” Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992).
Defendants oppose plaintiff's motions, arguing that
plaintiff has not demonstrated any diligence or otherwise
established good cause for the requested modification of the
pretrial deadlines. (See Dkt. 32 at 3.)
Pretrial Scheduling Order was issued in this case on December
21, 2016. (Dkt. 22.) That Order established a discovery
deadline of March 20, 2017, and a dispositive motion filing
deadline of April 20, 2017. (Id.) On the same date,
the Court issued an Order denying two motions for appointment
of counsel which were filed by plaintiff in November 2016.
(See Dkt. 21.) Plaintiff filed a third motion for
appointment of counsel in January 2017, which was also
denied. (See Dkt. 29.) On March 23, 2017, three days
after the discovery deadline had passed, the Court received
plaintiff's first request for an extension of the
pretrial deadlines. (See Dkt. 30.) A week later, the
Court received a second such request. (See Dkt. 31.)
Plaintiff's third request for an extension of the
pretrial deadlines was received on April 10, 2017. (Dkt. 43.)
Plaintiff asserts in those motions that a corrections officer
employed at the Washington Corrections Center
(“WCC”) threw away some of his legal materials
and interfered with his ability to litigate this action.
(See Dkt. 30 at 1-2; Dkt. 31, Dkt. 43 at 2.)
Plaintiff also claims that the law library at WCC is
out-of-date and that the Lexis/Nexis software is not user
friendly. (See Dkt. 30 at 2.)
question of whether plaintiff diligently pursued his claims
prior to counsel appearing on his behalf in April 2017 is the
subject of additional briefing relative to plaintiff's
request to deny or defer defendants' pending summary
judgment motion and will be discussed in more detail below.
For purposes of plaintiff's pro se motions for
modification of the pretrial schedule, it is sufficient to
note that based on plaintiff's prior activity in this
case, there appears no reason plaintiff could not have
submitted a timely request to extend the pretrial deadlines,
and it would be patently unfair to defendants to scrap the
original pretrial schedule and begin anew at this late date.
Plaintiff's fourth motion for appointment of counsel
(Dkt. 42) is STRICKEN as moot given that counsel has now
appeared on plaintiff's behalf.
Plaintiff's request under Fed.R.Civ.P. 56(d) to deny
defendants' pending summary judgment motion or to allow
plaintiff additional time to ...