UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
June 16, 2010
ELONZA JESSE TYLER, PLAINTIFF,
EDWARD ALAMEIDA, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION TO CONSOLIDATE
Plaintiff Elonza Jesse Tyler, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 20, 2004. On April 5, 2010, Plaintiff filed a motion seeking to consolidate this case with case number 1:06-cv-00092-SMS PC Tyler v. Davis, et al. Both cases involve Eighth Amendment medical care claims against Defendant Dennis C. Smith relating to Plaintiff's injured knee. Plaintiff's claim in this case relates to pre-surgery issues and Plaintiff's claim in 1:06-cv-00092-SMS relates to post-surgery issues. On June 4, 2010, Defendant Smith's counsel in case number 1:06-cv-00092-SMS filed a notice of non-opposition to the consolidation of the cases, but none of the defendants in this case filed a response.*fn1
Federal Rule of Civil Procedure 42(a) permits the Court to consolidate actions involving a common question of law or fact, and consolidation is proper when it serves the purposes of judicial economy and convenience, e.g., Devlin v. Transportation Communications Intern. Union, 175 F.3d 121, 130 (2d Cir. 1999); Young v. City of Augusta, 59 F.3d 1160, 1169 (11th Cir. 1995).*fn2
In case number 1:06-cv-00092-SMS, Defendant Smith did not meet his burden in moving for summary judgment, and the case is set for jury trial on Plaintiff's claim against Smith. In this case, default was entered against Defendant Smith on February 9, 2010, and there is a pending motion for default judgment against Smith.*fn3 Although the two cases involve common questions of law and fact, there very different procedural postures precluding consolidation.
Accordingly, Plaintiff's motion to consolidate, filed April 5, 2010, is HEREBY ORDERED DENIED.
IT IS SO ORDERED.