United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.
Jesse Alcala and Wendy Milano, who proceed without counsel,
filed two actions on May 28, 2019 against Butte County Social
Services, Theresa Murphy, Karen Ely and others.See Alcala et
al. v. Murphy et al., 2:19-cv-00969-KJM-CKD (E.D. Cal.)
(“Alcala I”); Alcala et al. v. Butte
County Social Services et al., 2:19-cv-00970-KJM-CKD
(E.D. Cal.) (“Alcala II”).
Alcala I and Alcala II, plaintiffs request
leave to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915. (See Alcala I, ECF No. 2; Alcala
II, ECF No. 2.) Plaintiffs' applications in support
of their requests to proceed in forma pauperis make the
showing required by 28 U.S.C. § 1915. Accordingly,
plaintiffs' requests to proceed in forma pauperis may be
the determination that plaintiffs may proceed in forma
pauperis does not complete the required inquiry. Pursuant to
28 U.S.C. § 1915, the court is directed to dismiss a
case at any time if 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
plaintiffs present two complaints that are nearly identical,
except for some minor and inconsequential differences. At the
heart of each complaint, plaintiffs allege that defendants
violated their rights under the Fourth and Fourteenth
Amendments, when they removed plaintiffs' child from
plaintiffs' home without a warrant and conducted a blood
draw without consent. (See generally, Alcala
I, ECF No. 1; Alcala II, ECF No. 1.)
“Parents and children have a well-elaborated
constitutional right to live together without governmental
interference. That right is an essential liberty interest
protected by the Fourteenth Amendment's guarantee that
parents and children will not be separated by the state
without due process of law except in an emergency.”
Hardwick v. Cty. of Orange, 844 F.3d 1112, 1116 (9th
on the limited record in this matter, the court cannot
conclude at this time that either complaint fails to state a
claim upon which relief can be granted or that plaintiffs
seek monetary relief from an immune defendant. At the same
time, because both of these complaints raise the same claims,
Alcala II is frivolous and should be closed.
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. “The district
court has broad discretion under this rule to consolidate
cases pending in the same district.” Investors
Research Co. v. United States District Court for the
Central District of California, 877 F.2d 777 (9th Cir.
1989). In determining whether to consolidate actions, the
Court weighs the interest of judicial convenience against the
potential for delay, confusion, and prejudice caused by
consolidation. Southwest Marine, Inc., v. Triple A. Mach.
Shop, Inc., 720 F.Supp. 805, 807 (N.D. Cal. 1989).
actions before the court involve common questions of law and
clearly arise out of the same nucleus of common facts.
Addressing these common questions in one case would
prevent-rather than cause-delay, confusion, and prejudice.
Thus, consolidation is warranted. Moreover, in the interest
of judicial convenience and to ensure that plaintiffs'
claims are fully stated in the surviving action,
plaintiffs' claims ought to be restated in a single
unified amended complaint in Alcala I,
amended complaint shall be clearly captioned “First
Amended Complaint.” Plaintiffs are informed that the
court cannot refer to a prior complaint or other filing in
order to make plaintiffs' first amended complaint
complete. Local Rule 220 requires that an amended complaint
be complete in itself without reference to any prior
pleading. As a general rule, an amended complaint supersedes
the original complaint, and once the first amended complaint
is filed, the original complaint no longer serves any
function in the case.
IT IS HEREBY RECOMMENDED that:
1. The actions Alcala et al. v. Murphy et al.,
2:19-cv-00969-KJM-CKD and Alcala et al. v. Butte County
Social Services et al., 2:19-cv-00970-KJM-CKD be
2. The Clerk of Court be directed to close Alcala et al.
v. Butte County Social Services et al.,
3. All future filings be in Alcala et al. v. Murphy et
4. Plaintiffs be directed to file a first amended complaint