United States District Court, D. Arizona
HONORABLE JOHN Z. BOYLE UNITED STATES MAGISTRATE JUDGE
before the Court are several motions from Plaintiff John
Sherman Jolicoeur, including: (1) “Motion Joinder of
Claims and Remedies” (doc. 41); (2) Motion to Join
Parties under Rule 19(a) (doc. 42); (3) Motion to Appoint
Counsel (doc. 68); (4) Motion for Court Order (doc. 72); (5)
Motion to Compel Production of Documents (doc. 74); and (6)
Motion for Waiver of Copy Fees (doc. 80). The Court will
address each motion below.
March 29, 2017, Plaintiff filed a pro se Civil Rights
Complaint. (Doc. 1.) In the Court's June 22, 2017
Screening Order (doc. 7), the Court provided the following
summary of Plaintiff's claims, relevant to his pending
Plaintiff alleges that he suffers from intervertebral disc
disorders and that from September 7, 2016, to January 18,
2017, he experienced multiples lapses and irregularities in
the provision of his prescribed pain medications, gabapentin
and Roboxin. (Doc. 1 at 6.) Plaintiff also alleges that the
lapses in medication that occurred in September 2016 resulted
in the discontinuation of his gabapentin prescription.
(Id.) . . .
Plaintiff alleges that his medical treatment violated the
terms of the settlement agreement in Parsons v. Ryan
[CV 12-00601-PHX-DJH (DKD)], and that Defendants Ryan and
Pratt, as signatories to that agreement, are therefore liable
for his constitutional injuries. (Id. at 13-14.)
Plaintiff further alleges that Defendant Ryan has adopted a
policy prohibiting inmates from appealing denials of their
medical grievances to Ryan. (Id.) Now, Plaintiff
claims, prisoners are forced to seek remedies for conduct
that violates the Parsons agreement “from the
very medical administration and staffing of medical who are
the causes of those violations.” (Id. at 14.)
(Doc. 7 at 3-4 (footnotes omitted).) The Court screened the
Complaint and found that
Plaintiff's claim against Defendant Pratt is too vague
and conclusory to state a claim. Plaintiff alleges that Pratt
was required to ensure that Plaintiff's medications were
either transferred to the Buckley Unit when Plaintiff was
“or otherwise provided at the receiving prison without
interruption.” However, Plaintiff does not allege any
facts to show that Pratt knew that Plaintiff was going to be
transferred or knew about any resulting lapses in
Plaintiff's medications. Accordingly, Plaintiff has
failed to state a claim for relief against Defendant Pratt,
and this Defendant will be dismissed without prejudice.
(Id. at 9.)
Motion Joinder of Claims and Remedies.
December 11, 2017, Plaintiff filed his “Motion Joinder
of Claims and Remedies of [Parsons v. Ryan] ¶
12-00601-PHX-DJH (DKD) and [Jolicoeur v. L. Minor]
¶ 17-00930-PHX-PGR (JZB) Rule 18(a)(b).” (Doc.
41.) Plaintiff asserts that he is “a member of
Parsons v. Ryan class action civil case[, ]”
and therefore the settlement agreement reached there applies
to this action. (Id. at 2.) In his Motion, Plaintiff
asserts no new claims. “A party asserting a claim,
counterclaim, crossclaim, or third-party claim may join, as
independent or alternative claims, as many claims as it has
against an opposing party.” Fed.R.Civ.P. 18(a).
Motion is not the model of clarity, but Plaintiff appears to
seek consolidation of this action with Parsons v.
Ryan, CV12-00601-PHX-DJH (DKD). Plaintiff's
intention is apparent for several reasons: (1) Plaintiff has
asserted no new claims; (2) Plaintiff's Motion includes
the case numbers of this action and of Parsons, (3)
Plaintiff alleges he is a member of the Parsons
class, and notes that Defendant Ryan and Mr. Pratt are
defendants in Parsons; (4) Plaintiff alleges that
both actions involve the same questions of fact; and (5)
Plaintiff alleges that “Defendant Ryan delayed three
years after signing Parsons v. Ryan settlement
agreement and one year after this Plaintiff's transfer on
9/7/2016, for Defendant Ryan to affect a policy revision to
ensure inmates are transferred with [their] chronic pain
medications.” (Id. at 10.)
the above listed facts indicates that Plaintiff does not
intend to join independent or alternative claims to this
action under Rule 18, but rather to consolidate this action
with Parsons. Accordingly, the Court will treat
Plaintiff's Motion Joinder of Claims and Remedies as a
Motion to Consolidate. Woods v. Carey, 525 F.3d 886,
890 (9th Cir. 2008) (directing the district court to treat as
a motion to amend a second habeas corpus petition filed while
the first petition was pending) (citing United States v.
Seesing, 234 F.3d 456, 462 (9th Cir. 2001) (“Pro
se complaints and motions from prisoners are to be liberally
Rule of Civil Procedure 42(a) 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). “[C]onsolidation is
permitted as a matter of convenience and economy in
administration[, ]” and “district courts enjoy
substantial discretion in deciding whether and to what extent
to consolidate cases.” Hall v. Hall, 138 S.Ct.
1118, 1127 & 1131 (2018). But the existence of a common
question alone does not guarantee consolidation. See
Robert Kubicek Architects & Assocs., Inc. v. Bosley,
No. CV-11-02112-PHX-DGC, 2012 WL 6554396, at *8 (D. Ariz.
Dec. 14, 2012) (finding consolidation was not proper because
the two actions were at different stages of litigation, and
consolidation “would create substantial inconvenience
determining whether consolidation is appropriate, a court
“must balance the interest of judicial convenience
against the potential for delay, confusion and prejudice that
may result from such consolidation.” Bank of
Montreal v. Eagle Assoc., 117 F.R.D. 530, 532 (S.D.N.Y.
1987) (citing Katz v. Realty Equities Corp., 521
F.2d 1354, 1362 (2d Cir. 1975)); see also,
Kubicek Architects & Assocs., 2012 WL 6554396 at
*8. Factors such as differing trial dates or stages of
discovery usually weigh against consolidation. Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2383 (1995).
moving party bears the burden of proof on a motion for
consolidation. See, e.g., In Re Repetitive
Stress Injury Litig., 11 F.3d 368, 373 (2d Cir. 1993);
In re Consol. Parlodel Litig., 182 F.R.D. at 444.
argues that consolidation is appropriate in this instance
because there is a commonality of circumstances between the
class action plaintiffs in Parsons and himself.
Specifically, he states:
[W]hat all Plaintiffs of Parsons v. Ryan and
Plaintiff Jolicoeur have in common is the stipulations and
settle[ment] agreement afforded prisoners in Parsons v.
Ryan. . . Moreover, Plaintiffs have in common is their
alleged exposure, as a result of specified statewide ADC
Grievance Policy and Practices that govern the overall
conditions of healthcare services of inmates in confinement
with medical personnel who are the cause of harm to inmates
with a substantial continual risk of serious future harm to
which the Defendants are allegedly deliberately indifferent.
. . Defendant Ryan agreed to affect medical healthcare
changes in Parsons v. Ryan settlement agreement
measures, yet, made a grievance policy that every inmate must
address their administrative remedies with the people who are
the very cause of those healthcare violations. In Plaintiff
Jolicoeur's case all administrative remedies of
protection from suffering needlessly failed Plaintiff.
(Doc. 51 at 8.)
noted by Defendants, Parsons and this action are
entirely distinct and do not involve a common question of law
or fact. (See Doc. 47 at 4.) Parsons is a
class action dating back nearly six years ago, involving more
than 33, 000 inmates, having reached a settlement, and having
been in the monitoring phase for nearly three years. This
action is not a class action, is in the early litigation
stage, is “narrowly tailored to Plaintiff's
specific clinical presentation, symptomology, medical
history, comorbidities, diagnoses, etc.” (Id.
of these actions is not convenient and will not result in
economy in the judicial administration. The stages and nature
of the actions are so widely disparate that consolidation is
almost certain to cause prejudice to the parties in both
actions, as well as substantial delays, confusion, and
inconvenience. Additionally, because the stages and the
nature of the actions are so disparate, there is no obvious
benefit to the parties of either action.
more, there is little concern that the actions may have
inconsistent results. First, in Parsons, no verdict
was issued because the action was settled. Second,
Plaintiff's claims against Defendant Ryan and Mr. Pratt
are based on facts that took place after the settlement
agreement in Parsons was signed. Parsons as
a class action allows for differences in the ultimate
determination of class members' claims owing to their own
unique sets of facts.
any judicial resources potentially saved by consolidating the
cases at this stage do not outweigh the almost certain
prejudice and confusion that consolidation would cause.
Accordingly, the Court will deny Plaintiff's Motion to