This case, in which plaintiff is proceeding in propria persona, was referred to the undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). On November 10, 2009, the court dismissed plaintiff's complaint with leave to amend within thirty days. On December 8, 2009, plaintiff filed an interlocutory appeal from the order dismissing the complaint with leave to amend. As the November 10, 2009, order was not a final appealable order, the U.S. Court of Appeals dismissed the appeal on January 20, 2010 and the mandate spread on February 12, 2010. Therefore, on February 25, 2010, the undersigned granted plaintiff an additional opportunity to amend his complaint in conformance with the November 10, 2009 order. Dckt. No. 11. On March 2, 2010, plaintiff filed an amended complaint. Dckt. No. 12.
On March 24, 2010, plaintiff filed a separate complaint and motion to proceed in forma pauperis. See Case No. Civ. S-10-0734 MCE EFB PS. Examination of that complaint and the amended complaint in this action reveals that the two cases involve similar (if not identical) parties, similar factual questions, and similar legal issues. Resolution of the two cases by different judges would "entail substantial duplication of labor," and the court therefore finds the cases related under Local Rule 123(a). Under the regular practice of this court, related cases are generally assigned to the judge and magistrate judge to whom the first filed action was assigned. Accordingly, Case No. Civ. S-10-0734 MCE EFB PS will be reassigned.
Given that the amended complaint in this action and the complaint in Case No. Civ. S-10-0734 MCE EFB PS involve similar parties, factual questions, and legal issues, the Court also finds that they should be consolidated under Federal Rule of Civil Procedure 42(a). The two complaints will be construed as one amended complaint; the Clerk will be directed to administratively close the file in Case No. Civ. S-10-0734 MCE EFB PS; plaintiff's motion therein to proceed in forma pauperis will be denied as moot; and the parties will be directed to file all future pleadings or other documents in this action.
Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a case filed pursuant to the in forma pauperis statute if, at any time, it determines that the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. The court cannot make this determination on the present record. Therefore, the court reserves decision on these issues until the record is sufficiently developed.
For the reasons stated above, IT IS HEREBY ORDERED that: 1. This action, Case No. Civ. S-09-2565 JAM EFB PS, is related to plaintiff's complaint at Case No. Civ. S-10-0734 MCE EFB PS within the meaning of Local Rule 123(a). The cases shall also be consolidated pursuant to Fed. R. Civ. P. 42(a). Accordingly, Case No. Civ. S-10-0734 MCE EFB PS is hereby REASSIGNED to District Judge John A. Mendez and Magistrate Judge Edmund F. Brennan. The Clerk is directed to make appropriate adjustment in the assignment of civil cases to compensate for the reassignment. In accordance with this order,
a. Case No. Civ. S-09-2565 JAM EFB PS is designated as the "master file";
b. The motion to proceed in forma pauperis in Case No. Civ. S-10-0734 MCE EFB PS is denied as moot;
c. The Clerk is directed to copy the complaint in Case No. Civ. S-10-0734 MCE EFB PS and to place said copy in the "master file";
d. The Clerk is directed to administratively close Case No. Civ. S-10-0734 MCE EFB PS; and
e. The parties are directed to file all future pleadings and other documents ONLY in Case No. Civ. S-09-2565 JAM EFB PS.
2. The amended complaint in Case No. Civ. S-09-2565 JAM EFB PS, Dckt. No. 12, and the complaint in Case No. Civ. S-10-0734 MCE EFB PS, shall be construed together as one second amended complaint.
3. The Clerk of the Court is directed to issue forthwith all process pursuant to Federal Rule of Civil Procedure 4.
4. The Clerk of Court shall send plaintiff two USM-285 forms, one summons, a copy of the second amended complaint (including the amended complaint in Case No. Civ. S-09-2565 JAM EFB PS, Dckt. No. 12, and the original complaint from Case No. Civ. S-10-0734 MCE EFB PS), this court's scheduling order, and the forms providing notice of the magistrate judge's availability ...