Gardiner (ID 46842) v. McBride et al
Filing
114
MEMORANDUM AND ORDER ENTERED: Plaintiff's "Objection to Magistrate's Recommendation" 108 is overruled and Judge O'Hara's Report and Recommendation 106 is adopted. The court denies the portion of plaintiff's mo tion that seeks leave to amend his Complaint to include new allegations but grants the portion of plaintiff's motion that seeks leave to amend his Complaint to modify his current claims. Plaintiff must file his Second Amended Complaint, consis tent with this Order, within 10 days of the date of this Order. Plaintiff's Motion for Leave to File Second Amended and Supplemented Complaint 97 is granted in part and denied in part. Signed by District Judge Daniel D. Crabtree on 12/21/18. Mailed to pro se party Matthew T. Gardiner by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MATTHEW T. GARDINER,
Plaintiff,
Case No. 15-3151-DDC-JPO
v.
BILL MCBRYDE, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the court on plaintiff’s Objection to Magistrate Judge James P.
O’Hara’s Report and Recommendation (Doc. 108 objecting to Doc. 106) and plaintiff’s Motion
for Leave to File Second Amended and Supplemented Complaint (Doc. 97). Plaintiff objects to
Judge O’Hara’s recommendation to deny, in part, his Motion for Leave to Amend his Complaint.
And, plaintiff also asks the court to allow the amendment or instruct Judge O’Hara to hear oral
arguments on the issue. Doc. 108. As explained below, the court concludes that Judge O’Hara
did not err in his recommendation.
I.
Factual and Procedural Background
Plaintiff, a state inmate proceeding pro se,1 brings this action under 42 U.S.C. § 1983,
against the Seward County Board of Commissioners and several individuals affiliated with the
Seward County, Kansas Jail. In his First Amended Complaint,2 plaintiff alleges defendants used
1
Because plaintiff proceeds pro se, the court construes his pleadings liberally. See Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991) (holding that courts must construe pro se litigant’s pleadings liberally and hold them to a less
stringent standard than formal pleadings drafted by lawyers).
2
Plaintiff’s First Amended Complaint is the operative complaint. Doc. 25. Plaintiff has titled it “Amended and
Supplemented Complaint,” but, to simplify things, the court refers to it as “First Amended Complaint.”
1
excessive force and denied him appropriate medical care, including mental health treatment,
during his time at the facility. Doc. 25. The Complaint describes one instance of “hog-tying”
plaintiff, kicking his head, and driving their knees into his ribs. Id. at ¶¶ 57–68. Plaintiff alleges
that after “the beating,” he was left “hog-tied” in a holding cell for several hours before one of
the defendants removed the restraints and transported him to the hospital for medical treatment.
Once there, plaintiff alleges, he was denied adequate medical care. Id. at ¶¶ 70–74. In their
Answer, defendants deny these allegations and claim plaintiff verbally threatened and physically
attacked jail personnel. Doc. 46 at ¶¶ 57–72. They admit officers restrained him, connecting
handcuffs behind his back to leg shackles at his ankles, because he exhibited violent behavior
with an intent to harm himself or others. Id. at ¶ 60. They contend he was released from
restraints after several minutes, and upon his request, he was transported to the hospital. Id. at ¶¶
72–73. The doctor noted plaintiff’s chest X-ray showed a “suggestion of contusion and hairline
nondisplaced fracture” of one of plaintiff’s ribs. Id. at ¶ 74. After his examination, plaintiff
returned to the jail facility. Id. at ¶ 80.
Plaintiff filed his original Complaint on June 11, 2015 (Doc. 1) and filed his First
Amended Complaint on April 11, 2016 (Doc. 25). Both Complaints allege just one incident of
excessive force. Judge O’Hara held a scheduling conference by telephone and issued his
Scheduling Order on January 8, 2018. He established a deadline for filing motions to amend on
February 12, 2018, and a discovery deadline of July 9, 2018. Id. Plaintiff did not allege a
second incident of excessive force during this period of time. Also, he never asserted any
intention to amend to his First Amended Complaint during any of the telephone status
conferences the parties conducted with the court before the deadline for amending pleadings had
expired. Docs. 58, 59, 72. On August 30, 2018, after the deadline for amending the pleadings
2
had passed, plaintiff filed a motion seeking leave to file another amended complaint—one that
would: (1) add to his current allegations; and (2) include new allegations of a second incident of
excessive force occurring two days after the first one. Doc. 97.
On October 5, 2018, Judge O’Hara issued a Report and Recommendation. It
recommended that the district court grant plaintiff’s unopposed request to modify his current
claims, but deny plaintiff’s request to add new allegations of a second incident of excessive force
because it was advanced in an untimely fashion, unduly prejudicial, and futile. Doc. 106.
Plaintiff objected to Judge O’Hara’s recommendation to deny him leave to assert some aspects of
his proposed amendments because, he asserts, discovery has produced new information that
prompted his amendment. Doc. 108. Alternatively, he alleges the second incident is already
asserted in his First Amended Complaint. Id. Defendants have filed a response opposing
plaintiff’s Objection.3 Doc. 113. Defendants ask the court to affirm Judge O’Hara’s
recommendation because plaintiff has not made the requisite showing for an amendment under
Federal Rules of Civil Procedure 15 and 16. Id.
II.
Standard of Review
Federal Rule of Civil Procedure 72(a) permits a party to present specific, written
objections to a magistrate judge’s order. When reviewing a magistrate judge’s order deciding
nondispositive pretrial matters, the district court applies a “clearly erroneous or contrary to law”
standard of review. See First Union Mortg. Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000)
(quoting Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1461–62 (10th Cir. 1988)); 28
U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). Under this clearly erroneous standard, the district
court does not conduct a de novo review of the magistrate judge’s factual findings; instead, the
3
Neither party objects to the portion of Judge O’Hara’s Report and Recommendation recommending that the court
grant part of plaintiff’s Motion to Amend to permit plaintiff to add more facts about his current allegations.
3
district court must affirm a magistrate judge’s order unless a review of the entire evidence leaves
it “with the definite and firm conviction that a mistake has been committed.” Ocelot Oil Corp.,
847 F.2d at 1464. In contrast, “the contrary to law” standard permits the district court to
conduct an independent review of purely legal determinations made by the magistrate judge.
Sprint Commc’ns Co. L.P. v. Vonage Holdings Corp., 500 F. Supp. 2d 1290, 1346 (D. Kan.
2007) (citations omitted). A magistrate judge’s order is contrary to law if it “fails to apply or
misapplies relevant statutes, case law or rules of procedure.” Walker v. Bd. of Cty. Comm’rs of
Sedgwick Cty., No. 09-1316-MLB, 2011 WL 2790203, at *2 (D. Kan. July 14, 2011) (quotation
omitted). The court applies this governing standard to plaintiff’s Objection here.
III.
Legal Standard Governing Amendment of Pleadings
When a party seeks to amend a pleading after the scheduling order’s deadline for
amending the pleadings has expired, the court first applies Rule 16(b)(4) and determines whether
the party has shown good cause. See Fed. R. Civ. P. 16(b)(4); Gorsuch, Ltd. v. Wells Fargo
Nat’l Bank Ass’n, 771 F.3d 1230, 1240–41 (10th Cir. 2014). To meet the “good cause”
requirement of Rule 16(b)(4), a plaintiff must show he could not have met the scheduling order
deadline to amend pleadings despite “diligent efforts.” Gorsuch, 771 F.3d at 1240. The “good
cause requirement may be satisfied, for example, if a plaintiff learns new information through
discovery or if the underlying law has changed.” Id. Ultimately, the decision to modify a
scheduling order is within the court’s sound discretion. Rimbert v. Eli Lilly & Co., 647 F.3d
1247, 1254 (10th Cir. 2011). The court cannot reach a Rule 15(a) analysis without first finding
good cause under Rule 16 for modifying the scheduling order. Gorsuch, 771 F.3d at 1241.
Rule 15(a) provides that leave to amend the pleadings “shall be freely given when justice
so requires.” Fed. R. Civ. P. 15(a). However, the court may deny leave to amend on the grounds
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of undue delay, bad faith or dilatory motive by the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party, or futility of the
proposed amendment. Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)). The decision to grant leave to amend the pleadings
under Fed. R. Civ. P. 15(a) is within the district court’s sound discretion. Id. (quoting Zenith
Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971)).
IV.
Analysis
Plaintiff seeks leave to amend his First Amended Complaint for two reasons: (1) to add
details to current allegations of excessive force; and (2) to include an entirely new section
describing a second incident of excessive force. Doc. 97-5 at 23. Judge O’Hara did not err when
he recommended that the court deny plaintiff’s proposed amendment asserting new allegations
because plaintiff has not shown good cause for seeking leave after the deadline. Also, Judge
O’Hara correctly concluded that plaintiff unduly delayed his request for leave to amend, the
amendment unduly prejudices defendants, and the amendment consists of allegations which are
futile. Each of these reasons provides an independent reason to deny plaintiff’s Motion to
Amend to assert new allegations of a second incident of excessive force. For the reasons
explained, the court affirms Judge O’Hara’s reasoning and denies plaintiff’s request for leave to
amend in part.
A. Rule 16
The Scheduling Order set the deadline for amending pleadings as February 12, 2018.
Doc. 59. Plaintiff filed his Motion to Amend on August 30, 2018—more than six months after
the deadline. Doc. 97. He has not established that he made diligent efforts to amend the
Complaint before the deadline expired to include allegations of a second incident of excessive
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force. Also, he has failed to show that he could not raise allegations earlier because he only
learned about the second incident through a specific discovery production received after the
amendment deadline had expired. Plaintiff asserts that he learned about the second incident
through discovery requests the defendants produced. But, as Judge O’Hara correctly found,
plaintiff would have experienced both incidents of excessive force himself. And thus, he had
opportunities to assert the claim either in his original or First Amended Complaint. He cannot
establish good cause simply because he failed to raise the claim, especially when he knew about
the underlying conduct because—according to his allegations—he was the victim. See Birch v.
Polaris Indus., Inc., 812 F.3d 1238, 1248–49 (10th Cir. 2015).
Alternatively, plaintiff’s objection asserts that his First Amended Complaint references
the second incident of excessive force. Doc. 108 at ¶ 59. He asserts he did not include the dates
and times of either incident in his original Complaint because he was held in isolation without
light or a clock and was not able to tell day from night. Doc. 108 at ¶¶ 8–10. In the same
paragraph, plaintiff asserts he was held in these conditions for two weeks. Id. at 9. He excluded
dates from his Complaint and First Amended Complaint because, apparently, he did not know
them. Id. at 11. Even so, both Complaints describe just one incident of excessive force. Doc. 1;
Doc. 25. Judge O’Hara concluded, and the court agrees, that it does not make any sense to
perceive the events described in the First Amended Complaint’s paragraphs 57 and 58 (Doc. 25)
as events that occurred on different days. Doc. 106 at 5. Plaintiff uses sequential language in his
allegations, asserting that defendants “threw him to the concrete floor” (Doc. 25 ¶ 57), one
defendant held his legs “while plaintiff was on the floor,” (id. at ¶ 58), and two other defendants
“simultaneously” held his arms (id. at ¶ 59). Additionally, plaintiff uses the singular form of
“beating” (Doc. 25 at ¶ 74, 114) and “assault” (id. at 126). The use of the singular noun plainly
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manifests plaintiff’s intent to to allege one event. In his proposed amendment, plaintiff describes
the timeline of the second incident as “the day after the emergency room visit.” Doc. 97 at ¶
159. Plaintiff takes issue with the court reading the First Amended Complaint in chronological
order (Doc. 108 at ¶¶ 60–61), but the plain language of his Complaint—even when construed
liberally—only allows one interpretation.
Plaintiff also argues the First Amended Complaint includes the second allegation because
it references specific defendants who worked on different days. Id. at ¶ 59. Plaintiff’s Objection
asserts that the First Amended Complaint must refer to two separate events because it mentions
defendants by name, and, after discovering a record showing defendants’ work schedule,
plaintiff learned certain defendants were not on duty when the original incident occurred. Id. at ¶
59. But, the court cannot infer that plaintiff alleged two events when the First Amended
Complaint plainly describes just one. Judge O’Hara correctly stated, “because plaintiff himself
allegedly experienced the incident, he certainly would have known about it in 2014.” Doc. 106
at 6–7. The court thus affirms Judge O’Hara’s decision to reject plaintiff’s argument that the
First Amended Complaint alleged a second incident of excessive force but he seeks now only to
include greater detail about that second incident.
Finally, plaintiff argues that “the enormous amount of confusion caused by the poorly
constructed complaint . . . is the precise reason the amendment should be allowed.” Doc. 108 at
¶ 64. While the court recognizes plaintiff proceeds pro se, the same rules apply to him as in any
civil case. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994); see also Elrod v. Walker, No.
06-3115-SAC, 2011 WL 6372881, at *6 n.3 (D. Kan. Dec. 20, 2011). Plaintiff has not
established good cause for his delay in seeking leave to file the amendment until now. Judge
O’Hara did not err.
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B. Rule 15
Because the court agrees with Judge O’Hara that plaintiff hasn’t meet the threshold
requirement for good cause under Rule 16, the court can affirm Judge O’Hara’s Report and
Recommendation recommending the court deny the proposed amendment in part. But, even if
Judge O’Hara had erred in his good cause conclusion, the court still would affirm the Report and
Recommendation because plaintiff has failed to show the amendment is warranted under Fed. R.
Civ. P. 15. The court will not permit an amendment with new allegations at this stage in the
litigation because plaintiff unduly delayed the Motion to Amend’s filing, new allegations will
unduly prejudice the defendants, and the proposed amendment is futile. The court explains each
of these reasons fully, below.
1. Undue Delay
The undue delay analysis begins by examining the reasons for delay. Wilkerson v.
Shinseki, 606 F.3d 1256, 1267 (10th Cir. 2010) (quoting Duncan v. Manager, Dep’t of Safety,
City & Cty. of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005)). The court can deny leave to
amend when the movant does not have an adequate explanation for delay. Minter, 451 F.3d at
1206. If the movant knew for some time about the facts on which he bases the amendment, the
court may deny his request to amend. Id. at 1205–06. The longer his delay, the greater the
likelihood that a court will deny a motion for leave to amend. Id. at 1206.
Plaintiff argues that his delay in seeking leave to amend results from defendants’ delay
producing discovery documents. Doc. 104 at ¶ 74.4 He asserts, “upon receiving the newly
discovered evidence on August 13, 2018, plaintiff immediately composed an amended
complaint.” Doc. 108 at ¶¶ 29–37. Judge O’Hara correctly incorporated his discussion about the
4
Plaintiff directs the court to his earlier Reply to Defendants Objection to Amend Complaint (Doc. 104) for his
discussion of the Rule 15 analysis. Doc. 108 at ¶ 66.
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absence of good cause when he found that plaintiff unduly delayed making a request to amend.
Doc. 106 at 8. Plaintiff has known about the facts that he attempts to incorporate now since the
alleged incident occurred in 2014 because—according to his allegations—plaintiff himself was
involved in them. His silence until the final stages of the pre-trial process shows undue delay.
2. Undue Prejudice
Prejudice is the most important factor when considering a motion to amend a pleading.
Minter, 451 F.3d at 1207. If alleging an amendment would impose “undue difficulty in
defending a lawsuit because of a change of tactics or theories,” it is prejudicial under Rule 15.
Welch v. Centex Home Equity Co., 323 F. Supp. 2d 1087, 1091 (D. Kan. 2004). Amended
claims are prejudicial when they arise out of subject matter different than that included in the
earlier version of a complaint and “raise significant new factual issues.” Minter, 451 F.3d at
1208.
Plaintiff argues that defendants are not prejudiced by the proposed amendment because
plaintiff is not seeking additional discovery and is not adding new claims. Doc. 104 at ¶ 129.
Plaintiff also argues his proposed amendment will not unduly prejudice defendants because, in
his opinion, they did not need discovery to defend the case and “it is hard to imagine what
‘discovery’ they would seek for an incident they deny took place.” Id. at ¶ 129(f). Defendants
respond that the proposed amendment presents a new claim that will require additional discovery
and further postpone the trial date. Doc. 113 at 9.
Judge O’Hara concluded defendants did not have notice and thus have not prepared
against the new allegations since the lawsuit began. Doc. 106 at 9. Instead, the proposed
amended allegations are substantively new. Contrary to plaintiff’s characterization, as the court
already has explained, the proposed amendment does not include the “same events and claims.”
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Doc. 97-3 at ¶ 44. Allowing plaintiff to add the proposed allegations at this late stage in the case
would harm defendants. Facing entirely new factual accusations, defendants would have to
reopen discovery to adduce information from plaintiff about those new allegations and, possibly,
prepare new defenses adequately for trial. The court thus recognizes the difficulty the proposed
amendment imposes on defendants. So, undue prejudice provides a second and independent
reason to deny plaintiff’s motion to add the new allegations under Rule 15.
3. Futile
“A proposed amendment is futile if the amended complaint would be subject to
dismissal.” Little v. Portfolio Recovery Assocs., LLC, 548 F. App’x 514, 515 (10th Cir. 2013)
(citing Jefferson Cty. Sch. Dist. No. R-1 v. Moody’s Inv’r’s Servs., Inc., 175 F.3d 848, 859 (10th
Cir. 1999)). The court applies the standard governing motions to dismiss under Fed. R. Civ. P.
12(b)(6) to determine whether the proposed amendment is futile. Id. That is, the Complaint
“must present ‘enough facts to state a claim to relief that is plausible on its face.’” Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Defendants argue the new allegations involve a second incident of excessive force in
2014, and they are independently subject to dismissal because the two-year statute of limitations
under 42 U.S.C. § 1983 has expired. Bell v. City of Topeka, 279 F. App’x 689, 691–92 (10th Cir.
2008). Plaintiff concedes the statute of limitations has expired for him to bring a new claim
under the statute. Doc. 104 at ¶ 80. Thus, if plaintiff filed the new allegations of excessive force
independently today, the court would dismiss the case because his claim is time barred under the
statute of limitations. But, to avoid dismissal, plaintiff argues that the new allegations in his
proposed amendment would relate back to the First Amended Complaint and thus are permitted
under Rule 15(c).
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As Judge O’Hara discussed in his Report and Recommendation, the Rule requires that
allegations in the amendment relate back to “the conduct, transaction, or occurrence set out—or
attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). This requirement
gives a defendant fair notice to anticipate litigation involving a specific factual situation. Price
v. McKee, No. 12-1432-CM, 2013 WL 3388905, at *4 (D. Kan. July 8, 2013) (quoting Reed v.
Entercom Commc’ns Corp., No. 04-2603-CM, 2006 WL 1174023, at *1 (D. Kan. Apr. 28,
2006)). Even if a new pleading shares similar elements to the original claim, it “cannot relate
back if the effect of the new pleading is to fault the defendants for conduct different from that
identified in the original complaint.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018
(10th Cir. 2013). Although both the old and putative allegations describe use of excessive force,
they involve two separate incidents, on different days, in different parts of the facility, and
different officers. The court cannot conclude the First Amended Complaint puts defendants on
notice of a second incident of alleged excessive force. The proposed claim does not relate back
to any existing allegations. So, for a third independent reason, the court denies plaintiff’s motion
because the proposed amendment is futile under Rule 15.
Plaintiff also argues the statute of limitations is equitably tolled because he is
incarcerated, has limited education, and lacks legal training—all of which prevented him from
bringing new claims. Also, he argues, defendants concealed information from him, and so,
equitable estoppel prevents them from asserting a statute of limitations defense. Doc. 104 at ¶¶
23–25. Judge O’Hara rejected these arguments for two reasons: (1) plaintiff raised them for the
first time in his reply brief; and (2) even if the court could consider them, circumstances prove
the contrary. Plaintiff was able to file documents adequately in this case and defendants did not
conceal information. Doc. 106 at 12–13. The court agrees with Judge O’Hara’s reasoning and
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affirms his conclusion. Plaintiff raised his equitable tolling and equitable estoppel arguments for
the first time in his reply brief. And our court typically refuses to consider arguments raised in
such a circumstance. See Liebau v. Columbia Cas. Co., 176 F. Supp. 2d 1236, 1244 (D. Kan.
2001); Nat’l R.R. Passenger Corp. v. Cimarron Crossing Feeders, LLC, No. 16-1094-JTM-TJJ,
2018 WL 489100, at *1 (D. Kan. Jan. 19, 2018). And, even if the court considered plaintiff’s
alternative arguments, Judge O’Hara correctly found plaintiff was able to make filings in the
case, despite his limitations, and defendants did not conceal information.
C. Amendments to Current Claims
As discussed above, plaintiff’s motion also included a request to add information about
his existing claims that he learned through discovery. Judge O’Hara concluded the request to
modify plaintiff’s current claims is appropriate. And neither party objects to that
recommendation. Plaintiff’s proposed amendments incorporate details to previously pleaded
claims, which he has learned through discovery, and delete claims he has learned are frivolous.
Doc. 104 at ¶ 44. As recommended by Judge O’Hara, the court permits plaintiff to amend these
portions of his Complaint because that request is uncontested. Also, the proposed amendments
to existing claims do not require the court to reopen discovery or delay the litigation otherwise.
Doc. 106 at 13–14.
D. Conclusion
The court affirms Judge O’Hara’s Report and Recommendation recommending that the
district court grant plaintiff’s Motion for Leave to File Second Amended Complaint in part and
deny it in part. Plaintiff has not established good cause for filing his motion six months after the
Scheduling Order’s deadline for amending pleadings. Thus, Judge O’Hara correctly ruled
plaintiff did not show good cause under Rule 16. Also, plaintiff’s request to amend is not
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warranted under Rule 15 because he unduly delayed, the proposed amendment causes undue
prejudice for the opposing party, and the amended claims are futile. But, the court affirms Judge
O’Hara’s recommendation to grant plaintiff’s request to modify his current allegations because
neither party objects to that portion of Judge O’Hara’s Report and Recommendation. The court
concludes Judge O’Hara’s Report and Recommendation was not clearly erroneous or contrary to
law.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff’s “Objection to
Magistrate’s Recommendation” (Doc. 108) is overruled and Judge O’Hara’s Report and
Recommendation (Doc. 106) is adopted. The court denies the portion of plaintiff’s motion that
seeks leave to amend his Complaint to include new allegations but grants the portion of
plaintiff’s motion that seeks leave to amend his Complaint to modify his current claims. Plaintiff
must file his Second Amended Complaint, consistent with this Order, within 10 days of the date
of this Order.
IT IS FURTHER ORDERED THAT plaintiff’s Motion for Leave to File Second
Amended and Supplemented Complaint (Doc. 97) is granted in part and denied in part.
IT IS SO ORDERED.
Dated this 21st day of December, 2018, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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