UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
February 13, 2013
RAUL SANCHEZ ZAVALA,
The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER (1) CONSOLIDATING ACTION WITH AND CLOSING CASE, (2) REQUIRING PLAINTIFF TO FILE MOTION SEEKING LEAVE TO AMEND AND PROPOSED SIXTH AMENDED COMPLAINT IN AND (3) DIRECTING CLERK OF COURT TO FILE AND SERVE ORDER IN BOTH ACTIONS (Doc. 1)
Plaintiff Raul Sanchez Zavala, a federal prisoner proceeding pro se and in forma pauperis, filed this civil action pursuant to the Federal Tort Claims Act (FTCA) on June 8, 2012. 28 U.S.C. § 1346(b)(1).
The underlying facts giving rise to Plaintiff's FTCA claim are the same facts being litigated in case number 1:09-cv-00679-MJS (PC) Zavala v. Rios, et al. The Court has broad discretion to consolidate actions which involve a common question of law or fact. Fed. R. Civ. P. 42(a)(2); Pierce v. County of Orange, 526 F.3d 1190, 1203 (9th Cir. 2008). The Court declines to permit Plaintiff to pursue his FTCA claim in this action while separately pursuing in 1:09-cv-00679-MJS (PC) his civil rights claims against the individual federal employees under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Plaintiff's litigation strategy is wasteful of the Eastern District of California's scare resources, and it has the potential to prejudice one or more parties given the possibility of conflicting rulings and/or should Plaintiff be attempting to do an end run around prior court orders and/or the advice of counsel in 1:09-cv-00679-MJS (PC).
Rather than filing a separate action, Plaintiff should have sought leave to amend to add his FTCA claim in case number 1:09-cv-00679-MJS (PC). Valadez-Lopez v. Chertoff, 656 F.3d 851, 855-57 (9th Cir. 2011). Accordingly, the Court HEREBY ORDERS as follows:
1. This action is consolidated with case number 1:09-cv-00679-MJS (PC) and case number 1:12-cv-00930-SKO (PC) is closed;
2. Plaintiff is required to file a motion seeking leave to amend and a proposed sixth amended complaint in case number 1:09-cv-00679-MJS (PC); and
3. The Clerk of the Court shall file and serve this order in both actions.
IT IS SO ORDERED.
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