Humphrey v. U.S. Department of Justice, Attorney General

Filing 96

MEMORANDUM AND ORDER denying 92 Plaintiff's Motion for Reconsideration. Signed by Magistrate Judge Karen M. Humphreys on 1/12/2012. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WALTER HUMPHREY,
Plaintiff,
v.
ERIC H. HOLDER, JR., in his official
capacity as U.S. Attorney General,
Defendant.

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Case No. 10-2153-CM

MEMORANDUM AND ORDER
This matter is before the court on plaintiff’s motion for reconsideration. (Doc. 92).
For the reasons set forth below, the motion shall be denied.
On September 23, 2011 the court denied plaintiff’s motion to conduct an untimely
discovery deposition of Kevin Johnson, a Bureau of Prison employee who worked as
Executive Assistant to the Warden at Leavenworth Penitentiary during the time relevant to
plaintiff’s claims. (Memorandum and Order, Doc. 88). The motion was denied based on a
finding of misrepresentations in plaintiff’s motion. For example, plaintiff’s counsel alleged
that Johnson was in Carl Crawford and plaintiff’s “chain of command.”1 However, Johnson
filed an affidavit stating that he was not in the “chain of command,” a fact that was later

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Carl Crawford was plaintiff’s immediate supervisor and the individual alleged to
have discriminated against plaintiff.

“confirmed” by plaintiff.2 The court also rejected plaintiff counsel’s suggestion that the
discovery deposition should be allowed because of ethical misconduct or criminal obstruction
of justice.
The court has discretion to reconsider a non-dispositive order based on: (1) an
intervening change in controlling law; (2) the availability of new evidence; or (3) the need
to correct clear error or prevent manifest injustice. D. Kan. Rule 7.3. The court is not
persuaded that reconsideration is warranted. At best, plaintiff attempts to (1) reargue the
meaning of his earlier representations and (2) improve his original motion with additional
exhibits and an affidavit. The additional exhibits and affidavit are not “new” evidence that
was otherwise unavailable to plaintiff when he filed his original motion. More importantly,
the court is not persuaded that any of its findings or rulings reflect “clear error” or “manifest
injustice.” Under the circumstances, plaintiff’s motion for reconsideration is denied.3
IT IS THEREFORE ORDERED that plaintiff’s motion for reconsideration (Doc.
92) is DENIED.

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Mr. Johnson also denied other allegations in plaintiff’s motion.
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The additional exhibits and affidavit simply support plaintiff’s contention that Mr.
Johnson is a potentially favorable witness for his case. The significance of Mr. Johnson’s
testimony is debatable but that is not the issue before the court on this motion for
reconsideration. Plaintiff was aware that Mr. Johnson was a potential witness in August
2010; however, counsel made a strategic decision to not expend the time and money to
depose Mr. Johnson during the discovery period. Doc. 72, p. 2. Material
misrepresentations were made in the motion for leave to conduct the discovery deposition
and plaintiff’s arguments for reconsideration are unpersuasive.
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IT IS SO ORDERED.
Dated at Wichita, Kansas this 12th day of January 2012.

S/ Karen M. Humphreys
___________________________
KAREN M. HUMPHREYS
United States Magistrate Judge

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