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Rubio v. King County

United States District Court, W.D. Washington

May 17, 2017

BRANDON J. RUBIO, Plaintiff,
KING COUNTY, et al ., Defendants.


          JAMES P. DONOHUE Chief United States Magistrate Judge.

         This is 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:

         (1) 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.

         Pursuant 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.

         The 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.)

         The 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.

         While 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.

         Though, 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 benefit.

         The 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.

         (2) 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.)

         A 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.)

         The 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.

         (3) Plaintiff's fourth motion for appointment of counsel (Dkt. 42) is STRICKEN as moot given that counsel has now appeared on plaintiff's behalf.

         (4) Plaintiff's request under Fed.R.Civ.P. 56(d) to deny defendants' pending summary judgment motion or to allow plaintiff additional time to ...

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