Fraley (ID 56370) v. Tranbarger et al

Filing 116

ORDER denying 99 Objection to Order of Magistrate Judge (plaintiff's motion for reconsideration of the pretrial order). Signed by Magistrate Judge James P. O'Hara on 11/1/2018. Mailed to pro se party Mark Fraley a copy of this order and the court's summary judgment guidelines by regular mail. (ydm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARK FRALEY
Plaintiff,
v.

Case No. 16-3143-JWB

KAYLA TRANBARGER, et al.,
Defendants.

ORDER
Plaintiff Mark Fraley, who is incarcerated and proceeding pro se, brings this action
against defendants for deliberate indifference to his serious medical needs. Before the
court is plaintiff’s motion for reconsideration of the pretrial order (ECF No. 99).1 Because
plaintiff offers no reason that would justify reconsideration of the pretrial order, his motion
is denied.
Before addressing the merits of plaintiff’s motion for reconsideration, the court
briefly addresses defendants’ argument that plaintiff’s motion is untimely. The pretrial

The pretrial order is ECF No. 96. Plaintiff titles his request for relief, “Plaintiff’s
Objections, Corrections, and Revisions to the Pretrial Order.” ECF No. 99. Although this
title could lead the court to construe plaintiff’s filing as either an objection to a magistrate
judge’s order under Fed. R. Civ. P. 72, or a request for reconsideration of an order under
D. Kan. Rule 7.3(b) and/or Fed. R. Civ. P. 60, plaintiff’s reply brief clarifies that his filing
is a “motion to reconsider the Pre-Trial Order.” ECF No. 108 at ¶ 2.
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order was filed on July 12, 2018.2 Plaintiff filed his motion to reconsider 19 days later on
July 31, 2018.3 If the pretrial order is construed as a non-dispositive order, plaintiff’s
motion is untimely under D. Kan. Rule 7.3(b), which sets a 14-day deadline for seeking
reconsideration of non-dispositive orders. But if the pretrial order is construed as a
dispositive order, plaintiff may be seeking reconsideration under Fed. R. Civ. P. 60, which
requires only that such a motion be filed “within a reasonable time.” Plaintiff argues the
pretrial order was dispositive because, as defendants recognize,4 it only included plaintiff’s
claims and contentions after they had been narrowed by the pretrial process, not as they
were pleaded in plaintiff’s complaint.5 The undersigned finds some support for plaintiff’s
position,6 and is mindful that plaintiff is proceeding pro se. Thus, without definitively
deciding the question, the undersigned construes plaintiff’s motion as timely filed.
Nevertheless, plaintiff’s request for reconsideration of the pretrial order is denied.
Plaintiff’s motion seeks substantial revisions to the pretrial order. For example, plaintiff
requests revisions or deletions of more than half of the 34 stipulated facts listed in the order.
Plaintiff also asks the court to modify the summary of relief requested by plaintiff to add a

2

ECF No. 96.

3

ECF No. 99.

4

See ECF No. 103 at 2.

5

ECF No. 108 at 2.

6

See Hallmark Hall of Fame Prods., Inc. v. McGee St. Prods., Inc., No. 00-1389JAR, 2004 WL 3035553, at *1 (D. Kan. Jan. 26, 2004) (finding dispositive a final pretrial
order that incorporated a decision to deny a request to compare the fault of a non-party).
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request for non-monetary relief in the form of a “referral of an off-site (Prosethodontics
[sic] Specialist) for a new (surgical implanted fixed prothetics [sic]) ‘Crown’ or ‘bridge’
work.”7 Such a request was not included in plaintiff’s complaint or amended complaint.
These are just a sample of the changes now requested by plaintiff.
The court agrees with defendants that these requests come in “the eleventh hour,”
after plaintiff was given ample opportunities to provide input in the preparation of the
pretrial order but often didn’t; after the input plaintiff did provide was incorporated into
the parties’ proposed pretrial order; and after the court carefully discussed with the parties
at the pretrial conference changes the court would make to the parties’ proposed order,
without oral objection by plaintiff. The lateness of plaintiff’s current requests and the
antecedent pattern of silence by plaintiff are illustrated in the following timeline:
November 1, 2017 The scheduling order was filed, setting April 30, 2018, as the deadline
for the parties to submit a jointly proposed pretrial order. ECF No.
77.
April 24, 2018

Defense counsel provided plaintiff a proposed pretrial order. That
same day, plaintiff telephoned defense counsel, who asked plaintiff to

7

ECF No. 99 at 11.
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review the proposed pretrial order and let counsel know his proposed
revisions.8
Plaintiff did not respond.
April 30, 2018

Defense counsel submitted the proposed pretrial order to the
undersigned’s chambers as an attachment to an e-mail. The e-mail
stated defense counsel had not heard back from plaintiff regarding
plaintiff’s proposed revisions to the proposed order.

May 14, 2018

The undersigned convened what was scheduled to be a pretrial
conference. ECF No. 91. Because plaintiff was not prepared to
discuss the proposed pretrial order, the undersigned converted the
conference to a status conference. The court ordered plaintiff to email to defense counsel, that day, plaintiff’s objections to defendants’
proposed pretrial order, and the parties to meet the following week to
discuss plaintiff’s objections. ECF No. 92.

May 14, 2018

Plaintiff e-mailed his objections (dated May 11, 2018) to defense
counsel.

Although plaintiff logged a number of objections to

defendants’ draft of the proposed pretrial order, plaintiff did not offer

Timeline entries without a citation to the court record are taken from defendants’
response to plaintiff’s motion for reconsideration (ECF No. 103) and were not controverted
in plaintiff’s reply to the same.
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proposed revisions, other than language on the governing law. ECF
No. 103-1.9
May 17, 2018

Defense counsel, via letter, asked plaintiff to “decide if any of the
proposed [factual] stipulations” were acceptable and if “unacceptable
in their current form, but you would find them acceptable if certain
errors are corrected,” to “be prepared to identify each such stipulation
and the corrections” during the parties’ scheduled telephone call. ECF
No. 103-2.

May 25, 2018

Plaintiff and defense counsel conferred via telephone and discussed
revisions requested by plaintiff.

May 29, 2018

Defense counsel provided plaintiff a “marked-up” copy of the
proposed pretrial order indicating changes that had been made at
plaintiff’s request. ECF No. 103-3. Significantly, this copy indicates
plaintiff did not object to factual stipulations that were eventually
included in the pretrial order and to which plaintiff only now objects.
Defense counsel asked plaintiff to notify him of any further revision
requests.

The court denies plaintiff’s request to strike from the record documents attached
as exhibits to defendants’ response brief that were not previously a part of the court record.
ECF No. 108 at 4. There is no requirement that exhibits be restricted to court documents.
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Plaintiff did not respond.
June 6, 2018

Defense counsel submitted the revised proposed pretrial order to the
undersigned’s chambers as an attachment to an e-mail. The e-mail
stated defense counsel had not heard back from plaintiff regarding
plaintiff’s agreement to the revised version. Defense counsel mailed
a copy of the e-mail and attachment to plaintiff.
Plaintiff did not contact the court or counsel to request further
revisions.

June 26, 2018

The undersigned conducted the pretrial conference. The undersigned
discussed with the parties the revisions the court would make to their
proposed pretrial order. Court staff mailed the court’s draft of the
pretrial order to the parties. ECF No. 95.

July 11, 2018

Plaintiff received the court’s draft pretrial order. ECF No. 97.

July 12, 2018

The pretrial order was filed. ECF No. 96.

July 31, 2018

Plaintiff filed his motion for reconsideration of the pretrial order, 21
days after receiving the court’s draft of the pretrial order,
proposing for the first time a significant number of substantive
revisions. ECF No. 99.

The court declines, at this late hour, to make the changes plaintiff now requests.
The court (and defense counsel) followed a clearly defined pretrial process to ensure the
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pretrial order was entered by a date sufficiently in advance of summary-judgment deadlines
that it would be useful in that stage of the court proceedings. Plaintiff was given ample
opportunity to participate in the drafting of the pretrial order—indeed, plaintiff was even
given a second chance by the court when he was not prepared to participate in the firstscheduled pretrial conference—but plaintiff largely chose to sit out of the process. The
court will not permit plaintiff to subvert the pretrial process by granting the instant motion.
To the extent plaintiff asserts in his reply brief that the court should grant his motion
to correct clear errors and prevent manifest injustice, plaintiff has not presented any
argument or evidence that support these assertions.10 Nor has plaintiff presented new
evidence that would support making any of his requested revisions.11 In short, the court
finds no reason that would justify reconsideration of the pretrial order.
IT IS THEREFORE ORDERED that plaintiff’s motion for reconsideration of the
pretrial order is denied.

The fact that plaintiff received the court’s draft of the pretrial order one day after
the court’s deadline for submission of requested changes does not indicate plaintiff would
suffer manifest injustice if the filed pretrial order is allowed to stand.
10

11

Plaintiff notes in his reply brief that he has learned for the first time that the
undersigned’s courtroom deputy e-mailed a copy of the court’s draft pretrial order to
defense counsel following the pretrial conference. But the courtroom deputy mailed
plaintiff the same draft (because plaintiff is incarcerated, limiting his access to e-mail). In
any event, this is not “new evidence” that has anything to do with the provisions of the
pretrial order.
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IT IS FURTHER ORDERED that the clerk mail a copy of this order to plaintiff,
along with a copy of the court’s summary judgment guidelines per plaintiff’s request in his
motion (ECF No. 99 at 13).
Dated November 1, 2018, at Kansas City, Kansas.
s/ James P. O=Hara
James P. O=Hara
U.S. Magistrate Judge

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