McDiffett (ID 51141) v. Nance et al

Filing 80

ORDER denying 77 Plaintiff's Motion for Reconsideration of the order denying the motion to appoint counsel. Signed by Magistrate Judge James P. O'Hara on 08/29/2019. Mailed to pro se party Shawn W. McDiffett by certified and regular mail; Certified Tracking Number: 7018 0680 0001 8174 1455. (tvn)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHAWN W. McDIFFETT,

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Plaintiff,
v.
CHARLES H. NANCE, et al.,
Defendants.

Case No. 17-3037-JAR

ORDER
Plaintiff, a federal inmate proceeding pro se, brings this action under 42 U.S.C. §
1983 alleging defendants were deliberately indifferent to his medical needs when he was
held in custody by the State of Kansas. This matter is before the court on plaintiff’s motion
for reconsideration of the court’s August 19, 2019 order denying his motion to appoint
counsel (ECF No. 77). The motion for reconsideration is denied.
D. Kan. Rule 7.3 governs motions for reconsideration of orders. When a party seeks
reconsideration of a non-dispositive matter, the motion for reconsideration must be 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.”1 The decision whether to

1

D. Kan. Rule 7.3(b).
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grant or deny a motion for reconsideration is committed to the court’s discretion.2 A
motion for reconsideration is appropriate if the court “has misapprehended the facts, a
party’s position, or the controlling law . . . .”3 However, “it is not appropriate to revisit
issues already addressed or to advance arguments that could have been raised in prior
briefing.”4 Such a motion is not a second chance for the losing party to “make its strongest
case . . . or to dress up arguments that previously failed.”5
In his motion for reconsideration, plaintiff simply reiterates past arguments already
considered by the court. First, plaintiff complains that he has limited ability to access the
prison law library while incarcerated in the Special Housing Unit (“SHU”) of the Federal
Prison in Yazoo City, Mississippi. But as the court noted in its order, all pretrial
proceedings in this case are currently stayed until a ruling is issued on a defendants’

2

Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1235B36
(10th Cir. 2001); see also In re Motor Temperature Sales Practices Litig., 707 F. Supp.2d
1145, 1166 (D. Kan. 2010) (“A court has discretion whether to grant a motion to
reconsider.”).
3

Coffeville Res. Refining & Mktg, LLC v. Liberty Surplus Ins. Corp., 748 F. Supp.
2d 1261, 1264 (D. Kan. 2010); see also Hammond v. City of Junction City, Kan., 168 F.
Supp. 2d 1241, 1244 (D. Kan. 2001) (“Reconsideration is appropriate where a court >has
obviously misapprehended a party=s position on the facts or the law.’”) (quoting Sithon
Mar. Co. v. Holiday Mansion, 177 F.R.D. 504, 505 (D. Kan. 1998)).
4

Coffeville Res., 748 F. Supp. 2d at 1264; see also Theno v. Tonganoxie Unified Sch.
Dist. No. 464, 377 F. Supp. 2d 952, 976 (D. Kan. 2005) (stating a motion to reconsider
should not be used to “rehash previously rejected arguments or to offer new legal theories
or facts”).
5

Turner v. Nat’l Council of State Bds. of Nursing, Inc., No. 11B2059, 2013 WL
139750, at *2 (D. Kan. Jan. 10, 2013) (citing Voelkel v. General Motors Corp., 846 F.
Supp. 1482, 1483 (D. Kan. 1994)).
2
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pending motion to dismiss or for summary judgment.6 The court noted “plaintiff has given
the court no information about what he wants to research, nor an estimate of the amount of
time he believes necessary to complete such research.”7 In his motion for reconsideration,
plaintiff did not address this deficiency in the record.8
Second, plaintiff again complains he is missing legal documents necessary to
investigate the facts in this case. But as previously noted, defendants re-served plaintiff
courtesy copies of key documents in this case on July 31, 2019.9 Moreover, on August 27,
2019, the presiding U.S. District Judge, Julie A. Robinson, issued an order finding plaintiff
“has access to the relevant documents needed to respond to Defendants’ motion.”10 To the
extent plaintiff’s motion for reconsideration seeks copies of documents not currently in his
possession, Judge Robinson made arrangements for plaintiff to request copies from the
Clerk of Court at plaintiff’s expense.11

6

ECF No. 76 (citing ECF Nos. 63 and 58).

7

Id.

Plaintiff asks the court to appoint an “impartial fact finding individual” to
investigate the adequacy of the law library. But the instant lawsuit is brought against state
prison officials raising issues of inadequate medical care at a state prison; should plaintiff
wish to raise a claim that federal prison officials violated his right of access to the courts
by providing inadequate access to a law library, he should file a separate lawsuit against
the federal officials. As it is, the court has no jurisdiction over federal prison officials who
are not named as parties in this lawsuit.
8

9

ECF. No. 75 at 1.

10

ECF No. 79 at 3.

11

See id.
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The court finds no justification for reconsidering its order declining to appoint
counsel for plaintiff at this time. Of course, if the case survives defendants’ pending
dispositive motion, the court has already given plaintiff leave to file another motion for
appointment of counsel.12
Plaintiff is hereby informed that, within 14 days after he is served with a copy of
this order, he may, pursuant to Fed. R. Civ. P. 72 and D. Kan. Rule 72.1.4(a), file written
objections to this order by filing a motion for review of this order by the presiding U.S.
district judge. Plaintiff must file any objections within the 14-day period if he wants to
have appellate review of this order. If plaintiff does not timely file his objections, no court
will allow appellate review.
IT IS THEREFORE ORDERED that plaintiff’s motion for reconsideration of the
order denying the motion to appoint counsel is denied.
The Clerk is directed to mail a copy of this order to plaintiff via regular and certified
mail.
Dated August 29, 2019, in Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

12

ECF No. 76.
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