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Matthew James Dury v. J. Ciufo

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 15, 2013

MATTHEW JAMES DURY,
PLAINTIFF,
v.
J. CIUFO, DEFENDANT.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER

(1) CONSOLIDATING ACTION WITH AND CLOSING CASE, (2) REQUIRING PLAINTIFF TO FILE MOTION SEEKING LEAVE TO AMEND AND PROPOSED FIRST AMENDED COMPLAINT IN 1:13-cv-00161-AWI-BAM (PC), AND (3) DIRECTING CLERK OF COURT TO FILE AND SERVE THIS ORDER IN BOTH ACTIONS (ECF No. 1)

Matthew James Dury, a federal prisoner proceeding pro se and in forma pauperis, filed this civil action on February 27, 2013 pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for the violation of civil rights by federal actors.

The underlying facts and law giving rise to Plaintiff's Bivens claim are the same facts and law being litigated in case number 13--cv--00161--AWI-BAM--PC, Matthew James Dury v. J. Ciufo. 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 Bivens claim asserting in this action a violation of 28 C.F.R. § 540.12 relating to postage stamps due him for February 2013, while separately pursuing in 1:13-cv-00161 AWI-BAM (PC) a violation of 28 C.F.R. § 540.12 by Defendant relating to postage stamps due Plaintiff for January 2013. Plaintiff's litigation strategy is wasteful of the Eastern District of California's scarce 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 in 1:13-cv-00161-AWIBAM (PC). Rather than filing a separate action, Plaintiff should have sought leave to amend to add his ongoing claim in case number 1:13-cv-00161-AWI-BAM (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 1:13-cv-00161-AWI-BAM (PC) and case number 1:13-cv-00288-LJO-MJS (PC) is closed;

2. Plaintiff is required to file a motion seeking leave to amend and a proposed first amended complaint in case number 1:13-cv-00161-AWIBAM (PC) within thirty (30) days from service of this Order; and

3. The Clerk of the Court shall file and serve this Order in both actions.

IT IS SO ORDERED.

20130315

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