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Turney v. Atencio

United States District Court, D. Idaho

January 17, 2019

PHILIP A. TURNEY, an individual; BILLY RAY BARTLETT, an individual; MICHAEL A. McCALL, an individual; and REUBEN J. CORTES, an individual, Plaintiffs,


          B. Lynn Winmill U.S. District Court Judge


         On January 3, 2018, five pro se prisoners in custody of the Idaho Department of Correction (IDOC)-Philip A. Turney, Billy Ray Bartlett, James S. Hendrickson, [1]Michael A. Hall, and Reuben J. Cortes (Plaintiffs)-filed a joint Complaint about inadequate prison medical treatment for their Hepatitis C conditions, seeking monetary and injunctive relief. (Dkt. 11.)

         In early 2018, the Court permitted Plaintiffs to proceed, but severed their individual claims into separate lawsuits because prison security policy generally prevents prisoners from possessing other prisoners' medical records (Dkts. 21, 23.) On August 13, 2018, Plaintiffs gave notice of their stipulation to consolidate their cases into one action through newly-retained attorneys Richard Hearn and John B. Inglestrom (collectively “Hearn”) (Dkt. 47.) On September 19, 2018, the cases were consolidated. (Dkt. 50.)

         The case that Plaintiffs seek to consolidate with this case is Workman, et al. v. Atencio, et al., No. 1:16-CV-00309-BLW, which was filed on July 8, 2016, about two years before the Turney plaintiffs filed their pro se lawsuit. In Workman, prisoners Kenneth Workman and Ray Nichols sought Hepatitis C treatment. They alleged that- even though Hepatitis C can now be cured with a costly new drug, a non-interferon direct-action antiviral medication (“DAA”)-IDOC/Corizon withholds that treatment from all but the prisoners with the most severe symptoms because of the financial cost. Workman and Nichols asserted that prison officials instead should treat all prisoners infected with Hepatitis C to cure them before their symptoms become severe. In their complaint, Workman and Nichols sought only injunctive and declaratory relief.

         The parties in Workman agree that Workman recently has been treated and essentially cured of Hepatitis C. Workman asserts that the lack of past treatment caused permanent liver damage. Nichols has not been treated because his symptoms are not severe, but he would like to be cured before his symptoms worsen.

         Attorney Hearn now represents Workman. Nichols proceeds pro se.


         1. Standard of Law

          Federal Rule of Civil Procedure 42(a) permits consolidation of actions that share “a common question of law or fact.” To determine whether to exercise discretion to consolidate cases, a reviewing court “weighs the saving of time and effort consolidation would produce against any inconvenience, delay or expense that it would cause.” Huene v. United States, 743 F.2d 703, 704 (9th Cir. 1984). The court may consider factors such as disparate trial dates or different stages of discovery as weighing against consolidation of the cases. 9 Wright & Miller, Federal Practice and Procedure § 2383 (2006).

         Consolidation may take the form of a court order to “(1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay.” Fed.R.Civ.P. 42(a). In addition, “[f]or convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues [or] claims.”

          2. Discussion

         On October 4, 2018, counsel for all plaintiffs except Nichols filed a motion to consolidate the Workman and Turney cases. The Workman case is two years older than the Turney case, but the Workman case took an irregular course. Plaintiffs, rather than Defendants, first filed a pro se motion seeking summary judgment, but did so without adequate supporting evidence. Disclosure and discovery disputes existed at the time of the summary judgment filing, and disputes remain outstanding today even though the Court previously ordered Defendants to supplement their disclosures.[2] Defendants have now filed for summary judgment on some claims, but the motion will not dispose of all claims in that case.

         Thus, Workman is not procedurally much farther ahead than the Turney case. The Turney case needs a new comprehensive case management plan, given the parties' outstanding requests, which range from amendment to class action status to preliminary injunctive relief. Consolidation of these similar cases will serve judicial efficiency. An overarching case management plan regarding disclosure, discovery, and all other outstanding requests will reduce duplicative attorney time spent on tasks on both sides. In addition, the same expert witnesses and other evidence likely can be used in all the cases, reducing the attendant costs of litigation for the parties.

         Finally, no party has shown that prejudice will occur because of consolidation. Nor has any party shown that inconveniences associated with consolidation will be greater than the benefits. The only difficulty is that one plaintiff remains pro se; however, the Rules of Civil Procedure provide the Court with authority to issue orders catering to the particular needs of the claims and cases within a consolidated action.

         Accordingly, the Court has concluded that consolidation of these cases is appropriate. By separate order in the Workman case, the Court has ordered Plaintiff Nichols to clarify how he desires to proceed. If Nichols decides to proceed pro se, then the Court will determine whether his case will be handled differently within the consolidated case because of privacy, security, and case management concerns that arise in pro se cases.

         Hereinafter, the Workman and Turney cases will be referred to as the Turney case.

         THE BALLA CLASS'S ...

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