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Antron Russell, et al v. United States of America

July 9, 2012


The opinion of the court was delivered by: Magistrate Judge Carlson

(Judge Conner)



Defendant United States of America has moved to have the above-captioned action consolidated with other similar cases currently pending in this district pursuant to Rule 42 of the Federal Rules of Civil procedure.*fn1 (Doc. 49.) Each of the actions subject to the motion was commenced by pro se inmate Plaintiffs in the custody of the Bureau of Prisons, all of whom were incarcerated at the Canaan United States Penitentiary in Waymart, Pennsylvania ("USP-Canaan"), on June 25, 2011. Each of the Plaintiffs in these actions claims to have become sickened as a result of consuming chicken that was contaminated with salmonella, and which was served in the prison's main dining hall on June 25, 2011, as part of a chicken fajita entree.

The United States has provided notice of the motion to the Plaintiffs in this action, as well as to the Plaintiffs in the other actions that Defendant seeks to have consolidated with this case. In spite of this notice, no Plaintiff in any of these cases has responded to the government's motion, and it remains unopposed.

Upon consideration of the motion, and in consideration of the somewhat unusual procedural posture of the related actions that are subject to the motion to consolidate, we will grant the motion in part and deny it in part, without prejudice to Defendant's right to renew its request at a later point in the litigation. We explain below.


As noted above, in each of the cases subject to the government's motion, the Plaintiffs are pro se inmates who claim to have been housed at USP-Canaan on June 25, 2011, and who all claim to have been sickened by eating chicken fajitas served at the prison that were allegedly contaminated with salmonella. Although there are some differences in the claims brought by each of the Plaintiffs in each of the actions, they all arise out of a common nucleus of facts, and generally involve similar questions of law.

Some of the Plaintiffs have limited their claims to allegations that the United States should be liable for negligence under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., whereas others have brought either alternative or additional Bivens*fn2 claims charging individual Defendants employed at USP-Canaan or by the Bureau of Prisons with various constitutional violations allegedly related to the salmonella outbreak, including claims that certain Defendants conspired to conceal the salmonella outbreak; denied individual Plaintiffs' right of access to the courts; denied or restricted necessary medical treatment; and otherwise engaged in retaliatory conduct or mistreatment of inmates.

These cases involve multiple Plaintiffs, and each case was filed independently. As a result of the way in which these cases have been brought, the cases have been assigned to multiple district judges in the Middle District of Pennsylvania.*fn3 A number of these cases, including each of the cases that the government seeks to have consolidated, have been assigned to the undersigned magistrate for pretrial purposes. All of the cases remains in a preliminary posture, and the Defendants in each of the cases have not yet answered or otherwise responded to the complaints that have been filed.


The United States has moved the Court to consolidate each of the six actions identified above on the grounds that each of the cases arises out of the same alleged incident, occurred at the same time, in the same place, and involves the same Defendants. As a result, the government contends that each of the actions involves the same facts and common legal questions, and "any relief accorded in one suit will directly affect and possibly control the relief accorded in other suits." (Doc. 50, at 8.) In addition, the government submits that consolidation of each of the actions is desirable because it will avoid the need to manage multiple lawsuits, will therefore conserved judicial resources, and will reduce costs that would otherwise be incurred by all parties.

Rule 42(a) of the Federal Rules of Civil Procedure provides that "[i]f actions before the court involve a common question of law or fact, the court may: ... (2) consolidate the actions." Fed. R. Civ. P. 42(a).*fn4 Accordingly, a threshold requirement for consolidation is whether there exists a common question of law or fact. In re Consol. Parlodel Litig., 182 F.R.D. 441, 444 (D.N.J.1998). Although the existence of common issues is a prerequisite for consolidation, the mere fact that multiple actions involve common issues of fact or law does not compel consolidation. Liberty Lincoln Mercury, Inc. v. Ford Mktg. Corp., 149 F.R.D. 65, 80 (D.N.J.1993). Rather, a court may consolidate cases if, in its discretion, "consolidation would facilitate the administration of justice." Waste Distillation Tech., Inc. v. Pan Am. Resources, Inc., 775 F. Supp. 759, 761 (D. Del.1991).

A district court has broad power and discretion when determining whether consolidation is appropriate.Liberty Lincoln Mercury, 149 F.R.D. at 80. In the exercise of this discretion, a court should weigh the benefits of judicial economy against the potential for new delays, expense, confusion or prejudice. Id. A motion to consolidate may be denied if the common issue is not a principal one, if it will cause delay in one of the cases, or will lead to confusion or prejudice in the trial of a case. See 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, ยง 2382 (Civil 2d.1995). "Where the evidence in one case is not ...

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