United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE.
Reginald Nelson, an Alabama prison inmate proceeding pro
se and in forma pauperis, filed a complaint
under 42 U.S.C. § 1983. This action has been referred to
the undersigned Magistrate Judge for appropriate action
pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR
72(a)(2)(R). Based upon a careful review of the record, it is
RECOMMENDED that this Plaintiff's claims
against COI A. Madison and COI Tony Lett be
DISMISSED as duplicative of those currently
pending in Nelson v. COI A. Madison, et al., CA No.
16-00476-WS-MU, and that his claims against Warden Cynthia
Stewart be CONSOLIDATED with the
Nature of Proceedings
Nelson's complaint before this Court, he asserts that he
was stabbed on August 18, 2016, while being escorted back to
his segregation cell by Defendants Madison and Tony Lett
following a telephone call. (Doc. 1 at 3). Plaintiff names as
Defendants in the present action: COI A. Madison, COI Tony
Lett, and Warden Cynthia Stewart. (Id. at 4-5).
screening Plaintiff's complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B), the Court examined its docket and found
that Plaintiff has another action pending before the Court,
namely Nelson v. COI A. Madison, et al., CA No.
16-00476-WS-MU, which was filed prior to the instant
action. (Doc. 1 at 2). In Plaintiff's controlling amended
complaint in the earlier filed action, he names as
Defendants: COI A. Madison, COI Tony Lett, Lieutenant A.
Kidd, and Lieutenant D. Brown. (CA No. 16-00476-WS-MU, Doc.
22 at 4-5). In that action, Plaintiff alleges that on August
18, 2016, while being returned to his segregation cell by
Defendants Madison and Lett, after having made a telephone
call to his mother, he was stabbed by another inmate.
(Id. at 3). In both cases, Plaintiff asserts an
Eighth Amendment failure to protect claim against the
correctional Defendants, including Madison and Lett, in
connection with the inmate attack on August 18, 2016.
Court, in an order dated August 9, 2018, directed Nelson to
show cause why the instant case should not be dismissed as
duplicative of his earlier filed case. In his response,
Nelson argues that the two ostensibly duplicative actions are
distinct because, in the instant matter, he named Warden
Cynthia Stewart as a defendant, which he did not do in his
earlier filed action. (Id. at 1). According to
Nelson, he seeks to hold Warden Stewart accountable for
“allowing her COI officers to allow a close custody
inmate to go to HCU with a prison knife . . ., ” in
addition to her having allowed only one (1) correctional
officer to escort the inmate, instead of two. (Id.).
Nelson further advises that the instant action should be
viewed as being brought against Defendants in their
individual capacity. (Id. at 2).
part of its general power to administer its docket, a
district court may stay or dismiss a suit that is duplicative
of another federal court suit.” Curtis v.
Citibank, 226 F.3d 133, 138 (2d Cir. 2000); see
Colo. River Water Conservation Dist. v. United States,
424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976)
(“It is well established that ‘as between federal
district courts, . . . the general principle is to avoid
duplicative litigation.'”) (citation omitted). The
considerations behind this principle are “[w]ise
judicial administration, giving regard to conservation of
judicial resources[, ] and comprehensive disposition of
general rule is that a suit is duplicative of another suit if
the parties, issues[, ] and available relief do not
significantly differ between the two actions.” I.A.
Durbin, Inc. v. Jefferson Nat'l Bank, 793 F.2d 1541,
1551 (11th Cir. 1986). Broad discretion is given trial courts
“in determining whether to stay or dismiss litigation
in order to avoid duplicating a proceeding already pending in
another federal court.” Id.
review of Nelson's pending actions, it is clear that his
claims asserted against Defendants Madison and Lett in this
action are duplicative of those asserted in the earlier filed
action. While Nelson contends that he is suing Defendants
Madison and Lett in their individual capacity in this case, a
review of the earlier filed action reflects that Nelson's
claims against these same Defendants are being construed as
both “official capacity” claims and
“individual capacity” claims; thus, his claims in
the instant action, even if treated as “individual
capacity” claims, are still encompassed in the earlier
filed action. Accordingly, the undersigned recommends that
Nelson's claims against Defendants Madison and Lett be
dismissed as duplicative of his claims asserted against them
in the earlier filed action.
noted supra, Nelson has also asserted claims against
Warden Stewart. While Warden Stewart is not named as a
defendant in the earlier filed action, Nelson's claims
against her also arise out of the August 2016 inmate attack,
and raise related issues of staffing on the day in question.
Because of the similarity between both actions, and because
both cases are still in the early stages, this Court finds
that it would "avoid unnecessary cost and delay" to
consolidate Nelson's claims against Warden Stewart in
this case with his earlier filed action pursuant to Federal
Rule of Civil Procedure 42(a). "Rule 42(a) should be
used to expedite trial and eliminate unnecessary repetition
and confusion. A motion to consolidate is not required; the
court may invoke Rule 42(a) sua sponte." Miller v.
United States Postal Service, 729 F.2d 1033, 1036 (5th
Cir. 1984). In this manner, government officials need not
defend against multiple, similar suits. Accordingly, the
undersigned recommends that Nelson's claims against
Warden Stewart in this case be consolidated with Nelson
v. COI A. Madison, et al., CA No. 16-00476-WS-MU, his
earlier filed action.
reasons set forth above, it is RECOMMENDED
that Plaintiffs' claims against Defendants Madison and
Lett be DISMISSED as duplicative of his
claims in CA No. 16-00476-WS-MU, and his remaining claims
against Warden Stewart be CONSOLIDATED with
his earlier filed action.
of Right to File Objections
of this report and recommendation shall be served on all
parties in the manner provided by law. Any party who objects
to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document,
file specific written objections with the Clerk of this
Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b); S.D. ALA. GenLR 72(c). The parties should note that
under Eleventh Circuit Rule 3-1, “[a] party failing to
object to a magistrate judge's findings or
recommendations contained in a report and recommendation in
accordance with the provisions of 28 U.S.C. § 636(b)(1)
waives the right to challenge on appeal the district
court's order based on unobjected-to factual and legal
conclusions if the party was informed of the time period for
objecting and the consequences on appeal for failing to
object. In the absence of a proper objection, however, the
court may review on appeal for plain error if necessary in
the interests of justice.” 11th Cir. R. 3-1.
In order to be specific, an objection ...