UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

FRANK BUTZ, 

 Plaintiff, 

 Case No. 2:15-CV-12232 

v. Judge Matthew F. Leitman 

 Magistrate Judge Anthony P. Patti 

JERRY CLAYTON, 

 Defendant. 

___________________________________/ 

OPINION AND ORDER DENYING WITHOUT PREJUDICE 

DEFENDANT’S MOTION TO CONSOLIDATE (DE 15) 

I. OPINION: 

A. Background 

 1. Case No. 2:15-cv-12232-MFL-APP (Butz v. Clayton)

Plaintiff is an in pro per party to two cases in this Court. On June 19, 2015, 

while incarcerated at the Washtenaw County Jail (WCJ) in Ann Arbor, Michigan, 

Plaintiff Frank Leonard Butz filed the instant lawsuit against Jerry Clayton, the 

Washtenaw County Sheriff. (DE 1 at 1-2.) In sum, Plaintiff’s complaint concerns 

an alleged inability to attend a court-ordered class due to his confinement in FBlock, an allegedly ambiguous disciplinary system and kites allegedly not being 

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delivered to the addressee. (See DE 1 at 3.) He seeks declaratory and injunctive 

relief, as well as an award of $2,000,000 for grief and suffering. (DE 1 a 4.) 

 2. Case No. 2:15-cv-12233-MFL-APP (Butz v. Clayton, et al.) 

 Plaintiff’s other lawsuit, also filed on June 19, 2015, concerns the 

conditions and cost of phone service at Washtenaw County Jail (WCJ) and was 

filed against Wayne County Sheriff Jerry Clayton and Securus Technologies.1

 See

Case No. 2:15-cv-12233-MFP-APP (E.D. Mich.). (DE 1 at 3.) He seeks 

injunctive relief, as well as an award of monetary damages for his frustration, grief 

and suffering. (DE 1 at 4.) 

B. Pending Motions in Each Case 

Currently pending in this case are Defendant Clayton’s September 16, 2015 

motion to dismiss (DE 9), regarding which a response was due on October 30, 

2015 (DE 10), and Defendant Clayton’s October 14, 2015 motion to consolidate 

both actions filed by Plaintiff (DE 15), regarding which a response was due on 

December 24, 2015 (DE 16). Instead of filing substantive responses to these 

motions, Plaintiff has twice filed an “affidavit and response,” each of which lists 

ten challenges he faces and contains the following prayer for relief: 

                                                            

1 Plaintiff’s complaint groups together “Securus Correctional Billing 

Services/Securus Technologies [and] T-Netix Inc.” (DE 1 at 2.) It appears that, 

around 2004, T-Netix and Evercom Systems merged and formed Securus 

Technologies. See http://apps.securustech.net/history.asp. Therefore, for the 

purposes of this report and recommendation, the Court assumes the sole defendant 

is Securus Technologies, Inc. 

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Plaintiff Frank Butz prays the Court grant a hearing to determine if 

[P]laintiff can be appointed legal counsel, how to proceed, explain 

“Dismiss With Prejudice”, grant Defendant(s) Motions, or whatever 

the Court deems appropriate. 

(DE 13 at 2 & DE 17 at 2.)2

 Currently pending in Plaintiff’s second case are two motions to dismiss (DEs 

10 & 11, DE 16), each of which was filed during September 2015. (See also DE 

12 (Declaration)). Pursuant to the Court’s September 14, 2015 order, Plaintiff’s 

responses to the first two were due on October 29, 2015. (DE 14.) Pursuant to the 

Court’s September 18, 2015 order, Plaintiff’s response to the latter was due on 

October 19, 2015. (DE 17.) Here, too, Plaintiff filed a similar “affidavit and 

response.” (DE 18.)3

 Sheriff Clayton has filed a reply. (DE 19.) 

C. Discussion 

 In his October 14, 2015 motion in the instant case, Defendant Clayton 

contends, in part: “it is clear that both lawsuits are grounded in a common factual 

basis; namely, the conditions of confinement during Mr. Butz’s period of 

incarceration at the Washtenaw County Jail.” (DE 15 at 10.) Defendant’s motion 

                                                            

2 Plaintiff filed another such document on October 1, 2015; however, it appears he 

intended to file it in Case No. 15-12233. (See DE 12.) 

3 Technically, Defendant’s motion to consolidate (DE 15) is unopposed and could 

be granted on that basis. “A respondent opposing a motion must file a response, 

including a brief and supporting documents then available.” E.D. Mich. LR 

7.1(c)(1). Here, Plaintiff’s December 9, 2015 filing (DE 17) does not constitute a 

response to the substance of Defendant’s motion to consolidate (DE 15). 

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is based upon Fed. R. Civ. P. 42(a), which provides: “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) (“Consolidation.”). (See DE 15 at 2, 11 & 13.)4

 In particular, 

Defendant relies upon the factors set forth in Cantrell v. GAF Corp., 999 F.2d 

1007 (6th Cir. 1993): 

[W]hether the specific risks of prejudice and possible confusion [are] 

overborne by the risk of inconsistent adjudications of common factual 

and legal issues, the burden on parties, witnesses and available 

judicial resources posed by multiple lawsuits, the length of time 

required to conclude multiple suits as against a single one, and the 

relative expense to all concerned of the single-trial, multiple-trial 

alternatives. 

                                                            

4 In issuing this order, I assume a magistrate judge’s authority to rule upon a Fed. 

R. Civ. P. 42(a) motion to consolidate. See Carcaise v. Cemex, Inc., 217 F. Supp. 

2d 603, 604 n.1 (W.D. Pa. 2002) (“Pursuant to the Referral Orders entered by the 

District Court . . ., this magistrate judge has the authority to rule on the request to 

consolidate as a non-dispositive motion.”); see also Trafalgar Power, Inc. v. Aetna 

Life Ins. Co., 131 F. Supp. 2d 341, 343 (N.D.N.Y. 2001) (“In a Report, 

Recommendation and Order dated November 8, 2000 (the Report), the Magistrate 

Judge decided the motions for non-dispositive relief by granting Algonquin's 

motion for consolidation of 00–CV–1246 with 99–CV–1238, and denying Aetna's 

motion for leave to intervene as moot.”). But see Black v. Cockrell, No. 4:03-CV182-A, 2003 WL 21757297, at *1 n.1 (N.D. Tex. July 28, 2003) (“While the 

magistrate judge's reasoning in support of consolidation was sound, he did not 

possess the authority to consolidate the actions because he effectively disposed of 

the latter-filed action.”). 

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Cantrell, 999 F.2d at 1011 (citing Hendrix v. Raybestos–Manhattan, Inc., 776 F.2d 

1492, 1495 (11th Cir.1985)). (See also DE 15 at 11, 12, 13 & 17.) 

Even so, a decision to consolidate is within this Court’s discretion. 

“Whether cases present a common question of law or fact is only a threshold 

requirement; once a common question has been established, the decision to 

consolidate rests in the sound discretion of the district court.” Banacki v. OneWest 

Bank, FSB, 276 F.R.D. 567, 571 (E.D. Mich. 2011) (Rosen, C.J.). “In exercising 

its discretion, a court should weigh ‘the interests of judicial economy against the 

potential for new delays, expense, confusion, or prejudice.’” Banacki, 276 F.R.D. 

at 571 (quoting In re Consolidated Parlodel Litig., 182 F.R.D. 441, 444 (D.N.J.)

(citations omitted)); see also Thurman v. Ocwen Loan Servicing, LLC, No. 13-

10305, 2013 WL 2456382, at *2 (E.D. Mich. June 6, 2013) (Cox, J.) (“A district 

court's decision with respect to a motion for voluntary dismissal under Fed. R. Civ. 

P. 42(a)(2) is reviewed for abuse of discretion.”) (citing Bridgeport Music, Inc. v. 

Universal–MCA Music Pub., 583 F.3d 948, 953 (6th Cir.2009)). 

Exercising that discretion, I conclude that Defendant Clayton’s October 14, 

2015 motion to consolidate Case Nos. 2:15-cv-12232 and 2:15-cv-12233 should be 

denied at this time. While Defendant Clayton’s October 14, 2015 motion to 

consolidate distinctly addresses the issue of common questions of law and fact and 

also sets forth his arguments as to each of the five (5) Cantrell factors (DE 15 at 

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12-17), the fact remains that motions to dismiss have been filed in each case – on 

September 16, 2015 by Defendant Clayton in the instant case (DE 9), as well as on 

September 11, 2015 by Defendant Securus Technologies (DE 10, DE 11) and on 

September 16, 2015 by Defendant Clayton (DE 16) in Case No. 2:15-cv-12233. 

Moreover, on December 28, 2015 – a date following the filing of these motions to 

dismiss - the Clerk of the Court reassigned the latter case from Judge Friedman to 

Judge Leitman as a companion case to the instant action. (Case No. 2:15-cv-12233 

(DE 21).) Thus, dispositive motions having already been filed and the same 

judicial officers having already been assigned to these cases, there is little reason, 

if any, for the Court to consolidate these matters at this time. Moreover, I note 

that, even though both actions pertain in some way to jail conditions, the two cases 

involve distinct claims, and there is an additional party added in the second of the 

two cases. 

II. ORDER:

Accordingly, Defendant Clayton’s October 14, 2015 motion (DE 15) to 

consolidate both actions filed by Plaintiff (Case Nos. 2:15-cv-12232, 2:15-cv12233) is DENIED WITHOUT PREJUDICE to renewal should both of these 

cases survive the pending motions to dismiss. 

IT IS SO ORDERED. 

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Dated: March 31, 2016 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

I hereby certify that a copy of the foregoing document was sent to parties of record 

on March 31, 2016, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager to the 

 Honorable Anthony P. Patti 

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