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Anderson v. Delten

United States District Court, D. Montana, Helena Division

November 8, 2017

MICHAEL HENRY ANDERSON, Plaintiff,
v.
DAN DELTEN, Defendant. MICHAEL HENRY ANDERSON, Plaintiff,
v.
TOM SMIKINS and DAN JOHNSON, Defendants.

          ORDER

          John Johnston United States Magistrate

         Plaintiff Michael Anderson, a prisoner proceeding without counsel, filed two Complaints alleging that officers at Montana State Prison told other inmates he was a sex offender and a homosexual and as a result he was assaulted on several occasions. Rule 42(a) of the Federal Rules of Civil Procedure permits the Court to consolidate cases which, in the Court's judgment, involve common questions of law or fact. Fed.R.Civ.P. 42(a). The Court has “broad discretion” under Rule 42(a) “to consolidate cases pending in the same district.” Inv'rs Research Co. v. U.S. Dist. Ct. for Cent. Dist. of Cal., 877 F.2d 777, 777 (9th Cir. 1989). In exercising this discretion, the Court “balance[s] the interest of judicial convenience against the potential for delay, confusion and prejudice that may result from such consolidation.” Sapiro v. Sunstone Hotel Inv'rs, L.L.C., 2006 WL 898155, at *1 (D. Ariz. Apr. 4, 2006) (citations omitted).

         Upon consideration of these factors and independent review of the two complaints, the Court concludes that the cases should be consolidated. The cases raise common questions of fact and the cases can be consolidated without giving rise to delay, confusion, or prejudice.

         To clarify the nature of the claims raised in these actions, the Court will require Mr. Anderson to file an amended complaint which includes all his claims.

         I. STATEMENT OF THE CASES

          A. Parties

         Mr. Anderson is incarcerated at Montana State Prison in Deer Lodge, Montana. In Civil Action 17cv63 he names Dan Delten as a Defendant. In Civil Action 17cv70 he names Tom Smikins and Dan Johnson. All Defendants are officers employed at Montana State Prison.

         B. Allegations

         1. Civil Action No. 17cv63

         In the body of his Complaint, Mr. Anderson alleged that Dan Delton, a disciplinary hearing officer threatened him and stated “If I close this door, I would cut off your fingers or even kill you and noone would know.” (Doc. 2.)

         In his “Inmate Statement” filed as a supplement, Mr. Anderson alleged that on February 22, 2017 he heard Tom Smikins tell Dan Delton that, “I/M Anderson is a fag and he is a cho mo (child molester).” (Doc. 4 at 1.) Later Dan Delton asked Mr. Anderson who he had molested. Later Tom Smikins called Mr. Anderson into his office with Brad Miller and Joanne Reese and said, “so you want to slap me huh.” Mr. Anderson asked Officer Smikins what he was talking about. Mr. Anderson wrote an informal grievance about this issue which was not processed. He alleges he got beat up on his block because of this matter and suffered a dislocated shoulder. Later that day he was put in the hole for threatening Tom Smikins. When he got out of max and back to his unit, he was beat up several more times because inmates found out that he was a sex offender and was gay. He alleges Dan Delton told other inmates of his crime which led to him being beaten up. (Doc. 4.)

         He alleges he reported his shoulder injury to medical and they put him on Meloxicam and since he has been there his seizures have been getting worse. Dr. Kohut ordered CT scans and an MRI to look for further evidence of trauma to his brain. (Doc. 4 at 2.)

         He alleges these men caused much harm to his safety and body. He alleges he has lost around $300-$350 because of the loss of his hobby, his job, and because he had to send out property due to being put in the hole. (Doc. 4 at 2.)

         2. Civil Action No. 17cv70

         Mr. Anderson alleges that on February 22, 2017, Tom Smikins told Officer Dan Johnson that Mr. Anderson was a sex offender and was gay. Later, Officer Johnson asked Mr. Anderson “who did you molest you fagot?” Mr. Anderson alleges Officer Johnson was telling other inmates “how I must of been sucking off old guys to get in here.” Later Mr. Anderson got beat up by three inmates and dislocated his shoulder. He alleges Tom Smikins told other staff and inmates about his crimes and being a homosexual which got him beaten up.

         Mr. Anderson then repeated his allegations that Tom Smikins called him into his office, how he got beat up and suffered a dislocated shoulder. (Doc. 5.)

         II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915, 1915A

         A. ...


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