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Fugate v. Martin

United States District Court, S.D. Indiana, Terre Haute Division

May 10, 2019

DALE FUGATE, Plaintiff,


          Mark J. Dinsmore, United States Magistrate Judge.

         On January 31, 2019, the Court issued Orders to Show Cause in Cause No. 2:16-cv-00063-JMS-MJD [Dkt. 107] and Cause No. 2:18-cv-00321-JMS-MJD [Dkt. 44] ordering the parties to “show cause why these actions should not be consolidated pursuant to Rule 42(a).” The Court has reviewed the parties' responses to the Orders to Show Cause and hereby CONSOLIDATES the two cases.

         I. Background

         A. Fugate v. Martin, et al., Cause No. 2:16-cv-00063-JMS-MJD

         On February 24, 2016, Plaintiff, an inmate at Wabash Valley Correctional Facility, filed his claims pro se against Defendants: (1) Martin, (2) Lang, (3) Dwyer, (4) Rankin, (5) Hobson, (6) Leturgez, (7) Knust, (8) York, (9) Willis, (10) Robinson, (11) Wright, (12) Allen, (13) Brown, and (14) Corizon Medical Provider. [Dkt. 2.] Plaintiff “has been diagnosed with and treated for Hepatitis C, Type 2 diabetes, diabetic nerve pain, suppurative otits media, and hip pain.” [Dkt. 10 at 2.] To control Plaintiff's diabetes and pain, Plaintiff was given “an expensive insulin” called Lantus, beginning in 2008. [Dkt. 10 at 2.] Between 2013 and 2014, Plaintiff asserted his prescription for Lantus was changed to a “cheaper drug” which Plaintiff claimed caused him to develop an allergic reaction and skin infection. [Dkt. 10 at 2.] Plaintiff stated when he complained about the issues with the new prescription Plaintiff was told to continue taking the insulin, as it would not be changed back to the old prescription. [Dkt. 10 at 2.] Later Plaintiff contended his pain medication ceased to be administered by Defendants. [Dkt. 10 at 3.] On August 6, 2014, Plaintiff filed a formal grievance regarding deprivation of insulin and pain medication but again was told to adhere to the insulin treatment plan before any pain medication would be reinstated. [Dkt. 10 at 4.] By late 2014, Plaintiff was prescribed Novalin, “a slightly more expensive insulin” which also produced an allergic reaction. [Dkt. 10 at 4.] Treatment of Plaintiff's skin infection included administration of Vancomycin and Zosyn; Plaintiff's dosage of Vancomycin was enlarged on December 6, 2014 but incorrectly entered into the computer.[1] [Dkt. 10 at 5.] Plaintiff claimed he was given an overdose of Vancomycin between December 6 and December 18, 2014, which led to symptoms of nausea and vomiting, significant weight loss, and severe pain. [Dkt. 10 at 5.] On December 18, 2014 Plaintiff suffered cardiac arrest, was taken to Terre Haute Regional Hospital emergency room, and “had several heart attacks” while in route to the medical facility. [Dkt. 10 at 5.]

         Plaintiff “was diagnosed with critical kidney failure, respiratory failure, nephrotoxicity, cardiac arrest, and was septic, which were all caused by his Vancomycin overdose.” [Dkt. 10 at 6.] Plaintiff stated as a result of the increase dosage, Plaintiff “suffered and continues to suffer brain damage, resulting in memory loss, kidney damage, and heart damage.” [Dkt. 10 at 6.] In this action, Plaintiff brings Eighth Amendment deliberate indifference claims against Defendants, along with violations of Indiana medical negligence law. [Dkt. 10 at 6.] On April 11, 2016, in the Court's Entry Screening Complaint and Directing Further Proceedings, the Court found “the allegations [were] sufficient to establish [all] claims against all of the defendants.” [Dkt. 10 at 6.] Further, the Court allowed Plaintiff's Eighth Amendment policy claim against Defendant Corizon, regarding Corizon's allowance of prescriptions of “inexpensive medications” that allegedly caused Plaintiff's allergic reactions to occur, to proceed; Plaintiff's state law negligence claims against Corizon were also found sufficient to go forward. [Dkt. 10 at 7.]

         On May 5, 2016, the Court granted Plaintiff's motion for counsel and appointed Attorney Kenneth J. Falk of the American Civil Liberties Union (ACLU) to represent Plaintiff through final judgment in this matter. [Dkt. 17.] On May 12, 2016, and pursuant to the Court's Entry [Dkt. 17], Mr. Falk entered his appearance for Plaintiff. [Dkt. 21.] Subsequently, on November 2, 2016, Mark W. Sniderman also entered his appearance for Plaintiff in this matter. [Dkt. 51.] On December 9, 2016, the Court granted the parties' joint motion to stay and administratively closed the matter pending resolution of Plaintiff's medical malpractice proceedings before the Indiana Department of Insurance [Dkt. 63 at 1]; the Court lifted the stay in this action on June 29, 2018 [Dkt. 69 at 1]. Subsequent to the filing of Plaintiff's cause of action in Fugate v. Byrd, et al., Cause No. 2:18-cv-00321-JRS-MJD, the Court issued its January 31, 2019 Order to Show Cause [Dkt. 107] why these actions should not be consolidated pursuant to Rule 42(a).

         On February 12, 2019, Plaintiff, by his appointed counsel, filed his Response to the Court's Order and argued the following against consolidation: 1) though both cases question the medical treatment Plaintiff received, “this [2016] case focuses on the treatment of plaintiff leading to his cardiac arrest and hospitalization in December of 2014 . . . the alleged failure to properly administer Vancomycin and other medications, and to monitor plaintiff, while he suffered from a serious infection”; 2) the 2018 matter “focuses on unrelated treatment decisions made in the latter part of 2016 and 2017”; 3) the 2016 case brings claims against medical Defendants comprised of nurses and doctors; 4) the 2018 case does not involve any nurses; and 5) though Defendants Brown and Health Service Administrators are common Defendants in both cases, the “underpinning” of the matters are different. [Dkt. 108 at 1-2.] Defendants did not object to case consolidation. [Dkts. 109, 110, & 114.]

         B. Fugate v. Byrd, et al., Cause No. 2:18-cv-00321-JMS-MJD

         On July 18, 2018, Plaintiff filed his claims pro se against Defendants: 1) Byrd, 2) Chavez, 3) Hobson, 4) Brown, and 5) the I.D.O.C. Commissioner Carter [Dkt. 2.] Plaintiff asserted the following among his claims: 1) Defendants Doctors Chavez and Byrd denied the Plaintiff pain medication and consequently Plaintiff had a mild stroke; 2) Plaintiff did not receive adequate treatment for conditions of Hepatitis C and renal failure; 3) Defendant Hobson was aware of Plaintiff's treatment grievances and failed to “remedy the situation”; 4) Plaintiff's treatment was terminated by Defendants “in retaliation for receiving a letter from the ACLU[2] . . . regarding the plaintiff's medical care and grievances about his care”; and 5) Defendants Warden Brown and I.D.O.C. Commissioner Robert Carter were aware of Plaintiff's complaints and failed to intervene to “ensure that the Plaintiff receive[d] adequate medical treatment.” [Dkt. 14 at 2.] On September 18, 2018, in the Court's Entry Screening Complaint and Directing Further Proceedings, the Court found these aforementioned Eighth Amendment medical care and First Amendment retaliation claims will proceed against all Defendants; Plaintiff's Eighth Amendment claim involving his lack of treatment for Hepatitis C would be addressed in a separate Court order due to a pending class action[3] before the Court. [Dkt. 14 at 3.]

         On January 31, 2019, the Court issued its Order to Show Cause [Dkt. 44] why the 2016 and current 2018 causes of action should not be consolidated pursuant to Rule 42(a). On February 7, 2019, Corizon Defendants filed their Response stating no objection to consolidation. [Dkt. 45.] On February 14, 2019, State Defendants filed their Response stating no objection to consolidation. [Dkt. 48.] Plaintiff, pro se, did not file a Response to state any objection to consolidation.

         II. Legal Standard

         Federal Rule of Civil Procedure 42(a) governs the Court's ability to order the consolidation of cases. “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 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). “The trial court may order consolidation on its own initiative” absent motions from the parties. 9A Fed. Prac. & Proc. Civ. § 2383 (3d. ed.). “The fact that the cases may be in different stages does not bar consolidation.” Werner, 797 F.Supp. at 1212; see also Am. Airlines, Inc. v. Port of N.Y. Auth., 94 F.R.D. 672, 673 (S.D.N.Y. 1982) (citing 5 James W. Moore et al., Moore's Federal Practice § 42.02(3) (2d. 1982) (“different discovery stages is not fatal to the consolidation motion.”)). Moreover, “the fact that discovery [in one action] has progressed further [than another] should not, standing alone, prevent consolidation and may, in fact, even favor it. Since the two actions share issues of law and fact, much of the discovery [for one case] should be applicable to the [other] action.” Internet Law Library, Inc. v. Southridge Capital Mgmt., 208 F.R.D. 59, 62 (S.D.N.Y. 2002).

         Consolidation itself serves “[t]he primary purpose . . . to promote convenience and judicial economy.”Miller v. Wolpoff & Ambramson, LLP, No. 1:06-CV-207-TS, 2007 WL 2473431, at *2 (N.D. Ind. Aug. 28, 2007). This Court's workload dictates that every effort must be made to ensure the speedy and efficient administration of justice.[4] Federal Rule of Civil Procedure 42 operates as a “‘managerial device [that] makes possible the streamlined processing of groups of cases, often obviating the need for multiple lawsuits and trials.'” Miller, 2007 WL 2473431, at *2 (quoting 8 James W. Moore et al., Moore's Federal Practice § 42.10, at 42-8 (3rd ed. 2005)). “District courts enjoy substantial discretion in deciding whether and to what extent to consolidate cases.” Hall v. Hall, 138 S.Ct. 1118, 1131 (2018). In turn, a district court's decision to consolidate cases is subject to review “only for an abuse of discretion.” Star Ins. Co. v. Risk Marketing Group, Inc., 561 F.3d 656, 660 (7th Cir. 2009).

         III. ...

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