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Kirkland v. Kerestes

United States District Court, Third Circuit

December 5, 2013

BARRY KIRKLAND, Plaintiff,
v.
JOHN KERESTES, et al., Defendants. BARRY KIRKLAND, Plaintiff,
v.
JOHN KERESTES, et al., Defendants.

MEMORANDUM

YVETTE KANE, District Judge.

Barry Kirkland ("Kirkland"), an inmate at the State Correctional Institution at Mahanoy ("SCI-Mahanoy"), Pennsylvania, filed the above civil rights complaints pursuant to 42 U.S.C. § 1983. Named as Defendants in each of these actions are John Kerestes, Superintendent at SCI-Mahanoy, and Edward M. Marsico, Jr., the District Attorney of Dauphin County, Pennsylvania. Kirkland proceeds in forma pauperis in these matters.[1] For the reasons that follow, Civil Action No. 1:CV-13-2841 will be consolidated into Civil Action No. 1:CV-13-2588 pursuant to Federal Rule of Civil Procedure 42(a), and the consolidated matter will proceed under Civil Action No. 13-2588, which was the initially filed action. The consolidated complaint will be dismissed pursuant to the screening provisions of 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. This dismissal is without prejudice to any right Kirkland may have to pursue his claims in a petition for writ of habeas corpus.

I. Consolidation of Complaints

Kirkland filed Civil Action No. 13-CV-2588 on October 18, 2013, pursuant to 42 U.S.C. § 1983. He names Kerestes and Marsico as Defendants. In the complaint, Kirkland alleges that Kerestes is maintaining unlawful custody of him without authorization and against his will. He further alleges that Marsico prosecuted him and gained a conviction that resulted in his unlawful confinement. He claims that Marsico refuses to correct matters that have resulted in his confinement. As relief, Kirkland seeks monetary damages for his unlawful confinement. He also seeks his immediate release.

On November 21, 2013, Kirkland filed the second action captioned above pursuant to 42 U.S.C. § 1983, Civil Action No. 13-CV-2841. Kerestes and Marsico are named as Defendants. In the complaint, Kirkland sets forth the same claims against Defendants as in his earlier action. The only notable difference is that Kirkland attaches two (2) exhibits to his complaint. The first exhibit is an "Agency Attestation" from the Records Supervisor at SCI-Mahanoy. The second exhibit is a docket sheet from the Pennsylvania Supreme Court. Both exhibits are in support of Kirkland's claims that he is being held unlawfully. He again requests his release and an award of monetary damages for his illegal confinement.

Federal Rule of Civil Procedure 42(a) provides as follows:

(a) Consolidation. If actions before the court involve a common question of law or fact, the court may:
(1) join for hearing or trial any or all matter 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).

The allegations and Defendants set forth in both of Kirkland's actions are identical. Consequently, since the actions contain common factors of law and fact, the Court will consolidate the two actions pursuant to Rule 42(a), and proceed with the consolidated matter under the initially filed action, Civil Action No. 13-CV-2588. The Clerk of Court will be directed to close the later filed action, Civil Action No. 13-CV-2841.

II. Screening of Consolidated Complaint

28 U.S.C. § 1915 imposes obligations on prisoners who file civil actions in federal court and wish to proceed in forma ...


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