United States District Court, W.D. Texas, Austin Division
BILLY L. SPEARS, Plaintiff,
STEVEN McCRAW, et al., Defendants.
PITMAN UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's Opposed Motion to Consolidate,
(Dkt. 31). Having reviewed the filings, the relevant law, and
the factual record, the Court issues the following order.
action is a suit by Plaintiff Billy L. Spears
(“Plaintiff” or “Spears”) against the
Texas Department of Public Safety (“TDPS”),
Steven McCraw, David Baker, Luis Gonzalez, Rhonda Fleming,
Michael Bradberry, Luis Sanchez, K.B. Wilkie, Brandon Negri,
Jimmy Jackson, and Marcus Stokke (collectively,
seeks relief pursuant to 42 U.S.C. § 1983
(“Section 1983”). In the instant action, which
was removed to this Court on June 15, 2015 (“Spears
I”), Plaintiff alleges that Defendants Jackson,
Negri, Wilkie, Sanchez, Bradberry, Fleming, Gonzalez, Baker,
and McCraw “retaliated against him for exercising his
right to petition for redress of grievances as guaranteed by
the First Amendment to the U.S. Constitution, ” denied
him the equal protection of the laws as guaranteed by the
Fourteenth Amendment to the U.S. Constitution, and
“denied him due process of law as guaranteed by the
Fourteenth Amendment to the U.S. Constitution.”
(Original Pet., Dkt. 1-3, ¶¶ 28- 30). Plaintiff
also alleges that Defendant Stokke “violat[ed] his
right to be free from unreasonable seizure as guaranteed by
the Fourth Amendment to the U.S. Constitution, ”
(id. ¶ 31), and asserts a supplemental claim
under the Texas Whistleblower Act, (id. ¶ 33).
moved for summary judgment on all of Plaintiff's claims.
(Mot. Summ. J., Dkt. 31). With respect to Plaintiff's
First, Fourth, and Fourteenth Amendment claims, the Court
found in favor of Defendants. (Order, Dkt. 51, at 15). With
respect to Plaintiff's Texas Whistleblower Act claims,
Defendants' Motion for Summary Judgment was denied.
Defendants' Motion for Summary Judgment was pending,
Plaintiff filed another suit pursuant to 42 U.S.C. §
1983. Spears v. McCraw et al., No. 1:17-cv-1105
(W.D. Tex.) (“Spears II”). Spears
II alleges that various defendants, including those in
Spears I but also including eight individuals not
named in the original suit, retaliated against Plaintiff
because he filed Spears I. (Mot. Consolidate, Dkt.
44, at 1; Compare Original Pet., Dkt. 1-3, with
Spears II Compl., Dkt. 44-1). According to Plaintiff,
“most of the parties and issues” in Spears
II overlap with those presented in Spears I.
(Mot. Consolidate, Dkt. 44, at 1).
Rule of Civil Procedure 42 provides that a court may
consolidate actions that “involve a common question of
law or fact.” Fed.R.Civ.P. 42; see also St. Bernard
Gen. Hosp., Inc. v. Hosp. Serv. Ass'n of New Orleans,
Inc., 712 F.2d 978, 989 (5th Cir. 1983
(“Consolidating actions in a district court is proper
when the cases involve common questions of law and fact, and
the district judge finds that it would avoid unnecessary
costs or delay.”)). Consolidation is improper, however,
if it would prejudice the rights of the parties. St.
Bernard, 712 F.2d at 989 (citation omitted).
district court's power to consolidate cases is
“purely discretionary.” Id.; see
also Morris v. Prescott, 92 F. App'x 79 (5th Cir.
2004) (mem. op.) (per curiam).
argues that Spears I and Spears II should be
consolidated because the claims in both matters “arise
from the same ongoing pattern of retaliation, ”
Plaintiff “will certainly not be prejudiced by
consolidation, ” and “Defendants do not explain
how they would be prejudiced by consolidation.” (Reply,
Dkt. 50, at 2). The Court disagrees. Defendants rightly note
that the instant case has been pending since 2015, that
discovery is complete, and that the dispositive motions
deadline has passed. In Spears II, in comparison,
the Court has not yet entered a scheduling order. Moreover,
while Plaintiff contends that both matters “arise from
the same ongoing pattern of retaliation, ” the
abbreviated briefing currently before the Court indicates
that (1) the alleged retaliation in Spears II took a
different form than the alleged retaliation in Spears
I; and (2) Defendants are likely to raise defenses in
Spears II that are irrelevant to the claims in
Spears I. (See, e.g., Spears II Compl., Dkt. 44-1,
24-42; Resp., Dkt. 49, at 1-2).
Opposed Motion to Consolidate, (Dkt. 31), is
DENIED. IT IS FURTHER
ORDERED that the instant case is set for a final
pretrial conference at 10:00 a.m. on April 11, 2018, and a
jury trial commencing at 9:00 a.m. on April 30, 2018. Both
the final pretrial conference and the jury trial will take
place in Courtroom 4 on ...