Keys et al v. Obama et al

Filing 12

ORDER granting 10 defendants' motion to stay discovery pending the district court's ruling on defendants' motion to dismiss. Within seven days of a ruling on their motion to dismiss, defendants shall notify the undersigned of the ruling by sending an e-mail to the undersigned's chambers. Signed by Magistrate Judge James P. O'Hara on 12/2/2013. Mailed to pro se party Shawn Keys, 1761 S. 2800 Road, Herington, KS 67449 by regular and certified mail. (mb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHAWN KEYS and
BARBARA K. KEYS,
Plaintiffs,
v.

Case No. 13-4103-EFM

BARACK OBAMA, et al.,
Defendants.
ORDER
Plaintiffs, Shawn and Barbara Keys, bring this pro se action for emergency relief
against President Barack Obama, Department of Defense Secretary Chuck Hagel, CIA
Director John Brennan, and National Intelligence Director James Clapper. On September
5, 2013, plaintiffs commenced this action by filing a 77-page complaint with 184 pages
of attached-exhibits (ECF doc. 1). In their complaint, plaintiffs allege that defendants
“illegally detained, maimed, mutilated, tortured and obstructed” them via electronic
frequencies and/or electronic weapon systems.

Plaintiffs also filed a motion for a

temporary restraining order (ECF doc. 4). In that motion, plaintiffs ask the court for
emergency relief from the “chemical, biochemical and electrochemical responses
intentionally inflicted upon them” by defendants. Defendants have moved to stay all
discovery (ECF doc. 10) until the presiding U.S. District Judge, Eric F. Melgren, enters a
ruling on their pending motion to dismiss (ECF doc. 6). Plaintiffs have not responded to
the motion to stay and the time for doing so under D. Kan. R. 6.1(d) has run.

13-4103-EFM-10.docx

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D. Kan. Rule 7.4 provides: “If a responsive brief or memorandum is not filed
within the rule 6.1(d) requirements, the court will consider and decide the motion as an
uncontested motion. Ordinarily, the court will grant the motion without further notice.”
Although the court could grant the motion solely on the ground that it is unopposed, the
court will briefly address the merits of the motion.
Defendants have filed a motion to dismiss for failure to state a claim and lack of
subject matter jurisdiction.1 Although it has long been the general policy in the District
of Kansas not to stay discovery even if a dispositive motion is pending, four exceptions to
this policy are recognized.2 A discovery stay may be appropriate if: (1) the case is likely
to be finally concluded via the dispositive motion; (2) the facts sought through discovery
would not affect the resolution of the dispositive motion; (3) discovery on all issues
posed by the complaint would be wasteful and burdensome; or (4) the dispositive motion
raises issues as to the defendant’s immunity from suit.3 The decision whether to stay
discovery rests in the sound discretion of the district court.4 As a practical matter, this
calls for a case-by-case determination.
The court has reviewed the record, the instant motion, and the motion to dismiss.
The court concludes that a brief stay of all pretrial proceedings—including discovery and
the scheduling of deadlines—is warranted until Judge Melgren resolves the pending
1

See ECF doc. 6.

2

See Wolf v. United States, 147 F.R.D. 494, 495 (D. Kan. 1994).

3

Id. (citing Kutilek v. Gannon, 132 F.R.D. 296, 297-98 (D. Kan. 1990)).

4

Clinton v. Jones, 520 U.S. 681, 706 (1997).

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2

dispositive motion. The motion to dismiss seeks dismissal on the ground that plaintiffs’
claims against the federal defendants in their official capacities are barred by the doctrine
of sovereign immunity.5

Defendants also assert President Obama is entitled to

presidential immunity.6 Defendants are generally entitled to have questions of immunity
resolved before being required to engage in discovery and other pretrial proceedings.7
“One of the purposes of immunity, absolute or qualified, is to spare a defendant not only
unwarranted liability, but unwarranted demands customarily imposed upon those
defending a long drawn out lawsuit.”8 The Supreme Court has made clear that until the
threshold question of immunity is resolved, discovery should not be allowed.9
In addition, the court finds that a ruling on the dispositive motion is likely to
conclude this case, making discovery at this point wasteful and burdensome. In the
complaint, plaintiffs allege defendants have hurt or killed their livestock, animals, and
pets; used weapons against them; hit and “aerosoled” them by a jet; and used radio
frequency and microwave fields to alter or control their central nervous system. 10 “Over

5

ECF doc. 7 at 3-5,

6

Id. at 5-6.

7

Siegert v. Gilley, 500 U.S. 226, 232-33 (1991).

8

Id. at 232; see also Gallegos v. City and Cnty. of Denver, 984 F.2d 358, 361
(10th Cir. 1993) (“A successful claim of qualified immunity allows a public official to
avoid the burdens of discovery and litigation, as well as liability.” (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).
9

Siegert, 500 U.S. at 233 (“The entitlement is an immunity from suit rather than a
mere defense to liability . . . .” (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
10

ECF doc. 1 at 6, 9, 17-20.

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the years this Court has repeatedly held that the federal courts are without power to
entertain claims otherwise within their jurisdiction if they are so attenuated and
unsubstantial as to be absolutely devoid of merit, wholly insubstantial, obviously
frivolous, plainly unsubstantial, or no longer open to discussion.”11 It is wholly unclear
what plaintiffs are requesting or the legal basis for their requests. Having reviewed
plaintiffs’ complaint, the court concludes that the factual contentions that are identifiable
are baseless and incredible.
In consideration of the foregoing and upon good cause shown,
IT IS HEREBY ORDERED:
1.

The motion to stay discovery (ECF doc. 10) is granted.

2.

All pretrial proceedings in this case, including the Rule 26(f) meeting, Rule

26(a)(1) initial disclosures, the setting of a scheduling conference, and discovery, are
stayed until a ruling on defendants’ motion to dismiss.
3.

Within seven days of a ruling on their motion to dismiss, defendants shall

notify the undersigned of the ruling by sending an e-mail to the undersigned’s chambers.
4.

Plaintiffs are informed that within 14 days after they are served with a copy

of this order, they may, pursuant to Fed. R. Civ. P. 72 and D. Kan. Rule 72.1.4(a), file
objections to this order by filing a motion for review of this order by the Presiding U.S.

11

Hagans v. Lavine, 415 U.S. 528, 536 (1974) (citations and internal quotations
omitted); see also Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994) (courts may dismiss
claims that are “essentially fictitious” – for example, where they suggest “bizarre
conspiracy theories … [or] fantastic government manipulations of their will or mind”)
(citations and internal quotation marks omitted).
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District Judge, Eric F. Melgren. A party must file any objections within the 14-day
period if the party wants to have appellate review of this order.
IT IS SO ORDERED.
Dated December 2, 2013 at Kansas City, Kansas.

s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

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