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Holifield v. Rivamonte

United States District Court, E.D. Wisconsin

October 19, 2016

AL HOLIFIELD, Plaintiff,
JONATHAN RIVAMONTE, et al., Defendants.


          HON. PAMELA PEPPER United States District Judge

         Plaintiff Al Holifield is a state prisoner who is representing himself. On September 27, 2016, he filed a complaint under 42 U.S.C. §1983, Dkt. No. 1, along with a motion to proceed without prepayment of the filing fee, Dkt. No. 2. On October 18, 2016, the court ordered him to pay an initial partial filing fee of $35.73 by November 9, 2016. Dkt. No. 16. After the plaintiff pays the initial partial filing fee, the court will screen his complaint to determine whether he has stated claims against the named defendants.

         Since filing his complaint, the plaintiff has filed a motion to consolidate this case with and Case No. 14-cv-1486 (his habeas corpus petition against Warden Paul Kemper and defendant Ronald Malone) (Dkt. No. 7); a motion to hold this case in abeyance (Dkt. No. 14); and a motion for the appointment of counsel (Dkt. No. 10). This order addresses those three motions.

         I. Motion to Consolidate

         On October 13, 2016, the plaintiff filed a motion to consolidate this case with case no. 14-cv-1486, Holifield v. Malone, Dkt. No. 7. Both cases are pending before this court. The plaintiff explains that his request “is based on the fact that most of the evidence that[']s in support of the plaintiff's complaint is already on record in case #14-cv-1486.” Id. at 1. He goes on to request that, if the court declines to consolidate the cases, the court provide the plaintiff with a copy of the record in case no. 14-cv-1486. Id. at 2. (In a separate letter, the plaintiff notified the court that he no longer has copies of the filings in case no. 14-cv-1486, that he needs copies of those filings to support his claims in this lawsuit, and that he has insufficient funds to pay for copies of those filings. Dkt. No. 13.)

         The district court has discretion to decide whether to consolidate cases. Fleishman v. Prudential-Bache Securities, Inc., 103 F.R.D. 623, 624 (E.D. Wis. 1984). In order for a court to consider consolidation, there be common questions of law or fact, “consolidation must not result in prejudice to a party, ” and the party seeking consolidation must show that consolidation would “promote trial convenience and economy in administration due to factors other than mere commonality of legal and factual issues.” Id. at 624-25. Factors that courts consider in determining whether to consolidate include “judicial economy, avoiding delay, and avoiding inconsistent or conflicting results.” Van Patten v. Wright, Nos. 07-C-788, 07-C-26, 2009 WL 1886010, at *2 (E.D. Wis. June 30, 2009).

         The court will not consolidate the plaintiff's cases. Although the cases arise from the same general set of facts, the legal issues, and relief the plaintiff requests in each case, are very different. In his habeas case, the plaintiff (there, the petitioner) asks the court to reverse his judgment of conviction and either grant an evidentiary hearing or order a new trial. In this civil rights case, the plaintiff asks for compensatory and punitive damages. The cases involve different parties-the respondent in the habeas case is the warden of the correctional facility where the petitioner is housed, while the defendants in his civil rights case are police officers, police departments, and other law enforcement agencies. It is not clear at this stage, but it is possible that the plaintiffs in the civil rights case will end up being different than the petitioner in the habeas case. The plaintiff filed the civil rights complaint in his name, as well as in the names of his grandparents, Cora and Edward Holifield. The court has ordered that if Mr. and Mrs. Holifield wish to be plaintiffs in this suit, they must sign the complaint and file the signed copy with the court by November 4. Dkt. No. 12.

         In addition, the cases are at two very different stages. The plaintiff's petition for a writ of habeas corpus is fully briefed, and the court is considering it for decision; the plaintiff filed this civil rights complaint only three weeks ago; the court has not yet screened it. If the court were to grant the plaintiff's motion to consolidate, it would have to significantly delay a decision in the habeas case while the parties conduct discovery, and brief dispositive motions, in the civil rights case. This would prejudice the plaintiff, the defendants in this case, and the respondents in the habeas case.

         It appears that the main reason the plaintiff wants the court to consolidate the cases is that he filed, in the habeas case, the only copies he had of documents that support his claims. He now believes that he needs those documents to support his civil rights claims. He believes that if the court consolidates the two cases, that will give him access (presumably free of charge) to the documents he filed in the habeas case. This is not an appropriate basis for the court to grant a motion to consolidate.

         Even if the cases were appropriate for consolidation, the plaintiff would not receive free copies of the documents he filed in the habeas case. If the plaintiff would like to purchase copies of any documents he filed in the habeas case, and wants to purchase them now (before the court has screened his civil rights complaint), he may do so at a rate of $0.10 per page. Alternatively, the plaintiff may wait to see whether the court allows the plaintiff to proceed on claims in this civil rights suit. If the court does allow him to proceed beyond the screening stage, he may then try to obtain the documents he believes he needs from the defendants through discovery. (The plaintiff may not serve discovery requests on the defendants in this case until after the court screens his complaint and, if appropriate, enters a scheduling order setting a discovery deadline.) The court understands that many parties have difficulty affording the costs associated with litigation, but the court does not have adequate resources to cover those costs for litigants.

         The court will deny the plaintiff's motion to consolidate. Dkt. No. 7.

         II. Motion to Hold Case in Abeyance

         On October 17, 2016, the plaintiff filed a motion to hold this case in abeyance pending the outcome of his petition for a writ of habeas corpus. Dkt. No. 14. The plaintiff explains that he expects a decision soon, and, if the petition is granted, he intends to amend his complaint. Id. at 1. He also refers the court to his motion to consolidate. Id.

         The court will deny the plaintiff's motion. As stated at the beginning of this order, the plaintiff has not yet paid the initial partial filing fee in this case, and the court has not yet screened the plaintiff's complaint. In addition, the court is not sure who the plaintiffs will be in this case; it has given the plaintiff's grandparents a deadline of November 4 to decide whether they wish to join the case as plaintiffs. While it is true that the plaintiff's habeas case is fully briefed, the ...

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