Hachmeister v. Kline et al

Filing 10

ORDER ENTERED: Plaintiff's motion 7 for default judgment and plaintiff's motion 8 to stay and preserve evidence are denied as without merit and as moot. Plaintiff's motion 2 to proceed without prepayment of fees is granted. Pl aintiff's motion 9 to dismiss is sustained. This action is dismissed and all relief is denied without prejudice pursuant to Rule 41(b). Signed by Senior District Judge Sam A. Crow on 2/20/2013. (Mailed to pro se party Jason Wayne Hachmeiseter by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JASON WAYNE HACHMEISTER,
Plaintiff,
v.

CASE NO.

12-3263-SAC

RICHARD KLINE, Former Director,
Shawnee County Jail, et al.,
Defendants.
O R D E R
This matter is before the court upon plaintiff’s Motion for
Default Judgment (Doc. 7) and plaintiff’s Motion to Stay and
Preserve Evidence (Doc. 8).

Having considered these motions,

the

be

court

finds

they

should

denied.

Plaintiff

has

also

recently filed a Motion to Dismiss this action without prejudice
(Doc. 9), which the court finds should be granted.
Plaintiff’s Motion for Default Judgment has no legal merit.
The screening process has not been completed in this case, and
the

court

defendants.

has

not

ordered

proper

service

of

summons

upon

Since defendants have not yet been required by law

to respond to the complaint, plaintiff states no grounds for
default.
Plaintiff’s Motion to Stay is not supported by his factual
allegations and does not cite or suggest any legal authority
that would entitle him to a stay of these proceedings.

See

Creative Consumer Concepts, Inc. v. Kreisler, 563 F.3d 1070,
1080 (10th Cir. 2009)(“When applying for a stay, a party must
show a ‘a clear case of hardship or inequity’ if ‘even a fair
possibility’ exists that the stay would damage another party.”)
(citing Ben Ezra, Weinstein, and Company, Inc. v. America Online
Inc., 206 F.3d 980, 987 (10th Cir. 2000)).

Defendants would

undoubtedly be harmed by an indefinite stay of this complaint,
which the court has found is subject to dismissal.

Plaintiff

seeks an indefinite stay of these civil proceedings until “after
(his) criminal cases are over.”
still

seeking

administrative

His reasons include that he is

relief

on

two

claims,

that

the

local newspaper is writing about his criminal and civil cases,
and that “for tactical reasons” he is “holding off on sending
the amended complaint”

that

this

court

ordered

him

to file.

Plaintiff is not entitled to a stay of proceedings while he
exhausts administrative remedies.

Instead, he was required by

statute to fully and properly exhaust those remedies before he
filed his federal complaint.
Plaintiff’s

allegations

do

not

suggest

any

plausible,

relevant connection between this civil case concerning religious
meals at the jail and his pending state criminal proceedings.
They

do

not

provide

a

credible

reason

for

him

to

delay

compliance with this court’s order to file an Amended Complaint
that

cures

the

deficiencies

in

his

original

complaint.

Plaintiff

alleges

that

he

has

already

prepared

his

Amended

Complaint and does not request an extension of time.
Plaintiff’s request “to preserve all evidence” is likewise
not supported by either facts or legal authority and is not even
discussed in the body of the motion.

Accordingly, the court

denies plaintiff’s motions as stating no basis for the requested
relief.
moot,

Plaintiff’s pending motions might also be denied as
given

the

court’s

ruling

on

plaintiff’s

most

recent

motion.
Having
Prejudice

considered
(Doc.

9),

plaintiff’s
the

court

Motion

finds

it

to

Dismiss

should

be

without
granted

pursuant to Rule 41(a) of the Federal Rules of Civil Procedure.1
IT

IS

THEREFORE

BY

THE

COURT

ORDERED

that

plaintiff’s

Motion for Default Judgment (Doc. 7) and plaintiff’s Motion to
Stay and Preserve Evidence (Doc. 8) are denied as without merit
and as moot.
IT IS FURTHER ORDERED that plaintiff’ Motion to Proceed
without Prepayment of Fees (Doc. 2) is granted.

Plaintiff is

hereby assessed the remainder of the full filing fee to be paid
through payments automatically deducted from his inmate trust
fund account as authorized by 28 U.S.C. § 1915(b)(2).
IT IS FURTHER ORDERED that plaintiff’s Motion to Dismiss
1

Under Rule 41(a), a plaintiff may dismiss an action without a court
order by filing a notice of dismissal before the opposing party serves a
response.
The court finds this action should be dismissed, without
prejudice, upon plaintiff=s Notice of Voluntary Dismissal (Doc. 9).

(Doc. 9) is sustained, and this action is dismissed and all
relief is denied without prejudice pursuant to Rule 41(b).
The clerk is directed to send a copy of this Order to
plaintiff, to the finance officer at the institution in which
plaintiff

is

currently

confined

and

to

the

court’s

finance

office.
IT IS SO ORDERED.
Dated this 20th day of February, 2013, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge