United States District Court, E.D. Wisconsin
DECISION DENYING PLAINTIFF'S MOTION TO
CONSOLIDATE (DKT. NO. 7), DENYING HIS MOTION TO HOLD CASE IN
ABEYANCE (DKT. NO. 14), AND DENYING WITHOUT PREJUDICE HIS
MOTION TO APPOINT COUNSEL (DKT. NO. 10)
PAMELA PEPPER United States District Judge
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.
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.
Motion to Consolidate
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.)
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).
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.
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.
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.
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.
court will deny the plaintiff's motion to consolidate.
Dkt. No. 7.
Motion to Hold Case in Abeyance
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
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